[Senate Hearing 115-236]
[From the U.S. Government Publishing Office]
S. Hrg. 115-236
S. 465 AND S. 1400
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HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 8, 2017
__________
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COMMITTEE ON INDIAN AFFAIRS
JOHN HOEVEN, North Dakota, Chairman
TOM UDALL, New Mexico, Vice Chairman
JOHN BARRASSO, Wyoming MARIA CANTWELL, Washington
JOHN McCAIN, Arizona JON TESTER, Montana,
LISA MURKOWSKI, Alaska AL FRANKEN, Minnesota
JAMES LANKFORD, Oklahoma BRIAN SCHATZ, Hawaii
STEVE DAINES, Montana HEIDI HEITKAMP, North Dakota
MIKE CRAPO, Idaho CATHERINE CORTEZ MASTO, Nevada
JERRY MORAN, Kansas
T. Michael Andrews, Majority Staff Director and Chief Counsel
Jennifer Romero, Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on November 8, 2017................................. 1
Statement of Senator Cortez Masto................................ 32
Statement of Senator Heinrich.................................... 6
Statement of Senator Hoeven...................................... 1
Statement of Senator Rounds...................................... 4
Statement of Senator Udall....................................... 2
Witnesses
Flute, Hon. Dave, Chairman, Sisseton Wahpeton Oyate of the Lake
Traverse Reservation........................................... 13
Prepared statement........................................... 15
Fowler, Elizabeth A., Deputy Director, Management Operations,
Indian Health Service, U.S. Department of Health and Human
Services....................................................... 9
Prepared statement........................................... 11
Riley, Hon. Kurt, Governor, Pueblo of Acoma...................... 20
Prepared statement........................................... 21
Tahsuda III, John, Principal Deputy Assistant Secretary, Indian
Affairs, U.S. Department of the Interior....................... 8
Prepared statement........................................... 9
Appendix
Begaye, Hon. Russell, President, Navajo Nation, prepared
statement...................................................... 69
Fox, Hon. Mark N., Chairman, Mandan, Hidatsa and Arikara Nation
of the Fort Berthold Reservation, prepared statement........... 50
Gibbon, Kate Fitz, Executive Director, Committee for Cultural
Policy, prepared statement..................................... 63
Hawley, Vinton, Chairperson, National Indian Health Board (NIHB),
prepared statement............................................. 58
Letters of support submitted for the record by:
Association on American Indian Affairs (AAIA)................ 73
LoRenzo Bates, Speaker, Office of the Speaker. 23rd Navajo
Nation Council............................................. 80
Hon. Russell Begaye, President, Navajo Nation................ 76
Hon. Leonard Forsman, President, Affiliated Tribes of
Northwest Indians.......................................... 83
Ted Hernandez, Cultural Director, Wiyot Tribe................ 86
Hon. Herman G. Honanie, Chairman, Hopi Tribe................. 76
D. Bambi Kraus, President, NATHPO............................ 80
Hon. Brenda Meade, Chairperson, Coquille Indian Tribe........ 75
Hon. Anita Mitchell, Vice Chairperson, Muckleshoot Indian
Tribe...................................................... 79
Hon. Thomas P. O'Rourke, Sr. Chairman, Yurok Tribe........... 82
Jaqueline Pata, Executive Director, National Congress of
American Indians........................................... 84
Hon. Virgil Siow, Governor, Pueblo of Laguna................. 78
Hon. Jeromy Sullivan, Chairman, Port Gamble S'Klallam Tribe.. 83
Lee Turney, President. National Indian Head Start Directors
Association................................................ 81
Scott R. Vele, Executive Director, Midwest Alliance of
Sovereign Tribes........................................... 79
Troy ``Scott'' Weston, President, Oglala Sioux Tribe......... 88
Molloy, John, President ATADA, prepared statement................ 39
23rd Navajo Nation Council (NNC), prepared statement............. 55
Response to written questions submitted by Hon. Tom Udall to:
Hon. Dave Flute.............................................. 92
Elizabeth A. Fowler.......................................... 90
Hon. Kurt Riley.............................................. 88
John Tahsuda III............................................. 93
Society for American Archaeology (SAA), prepared statement....... 67
Tompa, Peter K., Executive Director, Global Heritage Alliance,
prepared statement............................................. 48
Toulou, Tracy, Director, Office of Tribal Justice, U.S.
Department of Justice, prepared statement...................... 46
United South and Eastern Tribes Sovereignty Protection Fund (USET
SPF), prepared statement....................................... 70
Weston, Hon. Troy Scott, President, Oglala Sioux Tribe, prepared
statement...................................................... 60
S. 465 AND S. 1400
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WEDNESDAY, NOVEMBER 8, 2017
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:53 p.m. in room
628, Dirksen Senate Office Building, Hon. John Hoeven,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN HOEVEN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. Good afternoon. Thanks to everyone for
coming.
I will call this hearing to order.
Today, the Committee will examine two bills: S. 465, the
Independent Outside Audit of the Indian Health Service Act of
2017 and S. 1400, the Safeguarding Tribal Objects of Patrimony
Act of 2017.
On February 28, 2017, Senator Rounds introduced S. 465, the
Independent Outside Audit of the Indian Health Service Act of
2017. Senators Lankford and McCain are co-sponsors. At this
time, there is no House companion bill.
The bill, S. 465, would mandate a reputable private entity
to conduct an independent assessment of the health care
delivery systems and financial management processes of the
Indian Health Service within the Department of Health and Human
Services.
The assessment is intended to lead to recommendations on
how the IHS, tribes, and other stakeholders can improve health
care delivery and services provided by the IHS.
Indian patients have suffered from inefficiency and
mismanagement at various levels of the IHS for too long. The
poor decision-making by the IHS has even led the Government
Accountability Office to place the agency on their High Risk
List. I have chaired two Committee hearings on these problems
this year alone, and I intend to hold another one next spring
to ensure that the IHS comes off the High Risk List.
In a moment, I will turn to Senator Rounds, so he can speak
more on his bill, S. 465. I know that Senator Rounds and his
staff have already made improvements to this bill. I appreciate
his efforts here as well as the Indian Health Service for
providing technical drafting edits. I look forward to hearing
from the Administration on those.
On June 21, 2017, Senator Heinrich introduced S. 1400, the
Safeguard Tribal Objects of Patrimony Act of 2017. Senators
Udall, Daines, Flake, McCain, Murkowski, Schatz and Tester are
all original co-sponsors of the bill. Senators Lankford and
Crapo were recently added. There is a House companion bill,
H.R. 3211, sponsored by Representative Lujan.
This legislation is centered on providing additional legal
protection to Native American tribal artifacts and sacred
objects by amending the Archaeological Resources Protection Act
of 1979, ARPA; the Native American Grave Protection and
Repatriation Act, NAGPRA; and other Federal laws which serve to
protect and preserve Native cultural heritage.
Among other things, S. 1400 provides increased criminal
penalties for repeat traffickers of Native American human
remains or cultural items. It bans the export of illegally
obtained Native American cultural objects and sets penalties
for violations of this ban.
To incentivize repatriation, the bill allows immunity from
prosecution if an individual voluntarily surrenders to the
appropriate tribe all Native American cultural objects in
possession, no later than two years after enactment of this
bill.
In addition, the bill would require the Government
Accountability Office report on the number of Native American
cultural objects illegally trafficked, and the extent to which
the Department of Justice has prosecuted cases of trafficking.
The GAO must also recommend actions to eliminate such
trafficking and to secure the repatriation of Native American
cultural objects.
Lastly, the Department of the Interior is directed to
convene a Tribal Working Group to contribute information to the
GAO report and advise on how best to implement the GAO's
recommendations.
Before we hear from the witnesses on this bill, I would
like to turn to Vice Chairman Udall for any opening statement
he might have.
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you so much, Chairman Hoeven. This is
a very important legislative hearing today. I appreciate
working with you on this.
I am especially pleased to see S. 1400, the Safeguard
Tribal Objects of Patrimony Act of 2017, known as the STOP Act,
on today's agenda. The STOP Act would prohibit the export of
sacred Native American items and increase penalties for
stealing and illegally trafficking in tribal patrimony.
This is an important piece of legislation. S. 1400 is
intended to provide tribes with the tools they need to prevent
the export of illegally-obtained sacred objects. I recognize
there are concerns, particularly those of the Antique Tribal
Art Dealers Association.
I stand ready to work with anyone who believes this bill
can be improved to achieve its goals by providing substantive
changes and recommendations. This hearing is an opportunity to
discuss the legislation, to talk about its impact on tribal
communities, and discuss ways we can improve on it.
I would like to thank my colleague from New Mexico, Senator
Heinrich for joining us today and for his strong advocacy on
this bill. His dedication to protecting cultural patrimony, in
particular by introducing the STOP Act, is greatly commendable.
I appreciate our partnership on this and many other issues
affecting tribes and Native Americans.
I am pleased to see that Governor Riley of Acoma Pueblo is
here with us today. Welcome. Governor Riley is a tireless
advocate for the people of Acoma. He knows all too well the
importance of protecting Native American culture and tradition.
Thank you, Governor, for taking time to travel all the way here
and to share your peoples' experiences.
As Vice Chairman of this Committee, the Ranking Member on
Interior Department Appropriations, and as a member of the New
Mexico congressional delegation charged with representing 23
tribes in my home State, helping fulfill the Federal trust
responsibility is absolutely critical to me.
I worked to secure more funding for tribal programs, to
push for increased transparency and tribal consultation, and to
improve Federal support for tribal cultural initiatives. That
is why I introduced the Protect Patrimony Resolution in the
last Congress and why I made the cultural sovereignty series of
hearings a focus of my time as Vice Chairman.
The first hearing in the cultural sovereignty series was an
oversight hearing in Albuquerque, New Mexico where we looked at
the issues raised by the STOP Act. Governor Riley testified at
that hearing and helped provide us with a very good record. The
second of the series was an oversight hearing in Santa Fe where
we examined the shortcomings of the Indian Arts and Crafts Act
and how criminals are counterfeiting authentic Indian arts and
crafts at incredible rates and selling them at hugely inflated
prices.
I look forward to continuing this focus over the coming
months. There is much work to do. I hope the STOP Act and the
cultural sovereignty series will shed light on the extent of
the problem and ultimately bring meaningful change.
Turning to S. 465, after decades of underfunding and
neglect, it is not surprising that the Indian Health Service
has documented shortcomings. In fact, Federal oversight
agencies generally fail to live up to their obligations to
Indian Country. Tribes should not be subjected to this
continuing breach of trust any longer. The trust responsibility
does not end with IHS and it does not end with BIA. Every
branch of the Federal Government must do its part, including
the Congress.
I am proud to work with Chairman Hoeven and this Congress
to strengthen the Senate's oversight role and look forward to
continuing to do so. The Indian Affairs Committee has dedicated
several hearings to address IHS, but we need to bring more
Federal oversight agencies and experts into our conversations
about IHS reform.
The Office of Management and Budget, Centers for Medicare
and Medicaid Services, and the Health and Human Services'
Office of Inspector General must answer for their role in
improving accountability of IHS.
Thank you, Mr. Chairman, for calling this hearing. I am
really looking forward to the testimony today.
The Chairman. Thank you, Vice Chairman Udall.
Senator Rounds.
STATEMENT OF HON. MIKE ROUNDS,
U.S. SENATOR FROM SOUTH DAKOTA
Senator Rounds. Thank you, Chairman Hoeven.
First of all, good afternoon. I want to start by thanking
Chairman Hoeven, Vice Chairman Udall, and members of the Senate
Committee on Indian Affairs for their dedicated service to the
Native American communities.
Today, I am introducing my bill, S. 465, to provide for a
comprehensive assessment of the Indian Health Service. As you
know, the IHS is the agency responsible for providing health
care for American Indians and Alaska Natives, as required by
Federal treaty agreement.
For years, tribal members in my home State of South Dakota
have dealt with unimaginable horrors in dealing with IHS
facilities. Upon taking office in 2015, my staff and I have
spent significant time trying to learn more about these
problems. In our research, we found four primary areas of
concern: there is no funding allocation strategy for the 12 IHS
regions; there is no standard of quality measurement; there is
a high turnover of staff resulting in low accountability among
management; and there is no consultation with the tribes.
The IHS serves approximately 2.2 million Native Americans
who are members of 567 federally-recognized tribes. For fiscal
year, 2017, IHS was appropriated just under $5 billion in
discretionary funding and $147 million in mandatory funding
from the Special Diabetes Program. This does not include third
party collections of approximately $1.1 billion.
Despite a large user population and an annual appropriation
of $5 billion, IHS does not have a funding formula. Regional
allocations are not based upon the number of people who
received health care through IHS, regional user population
growth or types of services offered.
While many believe that IHS is underfunded, from my
standpoint, investing more taxpayer money into a dysfunctional
system will only compound the problem. IHS lacks an efficient
system and accountability. This needs to be addressed before we
consider funding and then, I agree, it is time to talk about
adequate and appropriate funding.
Furthermore, there are no consistent qualitative
measurements. The most recent qualitative measurements are from
2008, nearly a decade ago. It is unclear if IHS management has
any sense of which regions are successful or failing.
IHS divides itself into 12 service areas in the United
States. IHS' Great Plains area, which serves South Dakota
tribal members, has the worst health care disparities of all
IHS regions, including the lowest life expectancy, the highest
diabetes rate, five times the U.S. average, the highest TB
death rate; and the highest overall age-adjusted death rate.
To give you an idea of some of the things we are seeing and
hearing in our area, the Wall Street Journal reported three
examples in June 27. ``At the Indian Health Service hospital in
Pine Ridge,'' in South Dakota, ``57-year-old man was sent home
with a bronchitis diagnosis only to die five hours later of
heart failure. When a patient at the Federal agency's
Winnebago, Nebraska facility stopped breathing, nurses
responded to the Code Blue, found the emergency supply cart was
empty, and the man died. In Sisseton, South Dakota, a high
school prom queen was coughing up blood. An IHS doctor gave her
cough syrup and an anti-anxiety medication. Within days, she
died of a blood clot in her lung.''
Just this August, IHS officials announced that patients who
recently received care at the Podiatry Clinic in the Winnebago
IHS hospital may have been exposed to HIV and hepatitis.
Because there are not standard of quality expectations or a
methodology to measure quality, these facilities are failing
very basic quality performances that our people deserve.
In fact, the quality problems have become so pervasive that
the Centers for Medicare and Medicaid Services' accreditation
of several IHS facilities is in jeopardy. Throughout the past
year and a half, the Rosebud and Pine Ridge hospitals in the
Great Plains Region have been operating under a systems
improvement agreement with CMS trying to regain their
accreditation status.
Thankfully, the systems improvement agreement at Rosebud
was completed on September 1 of this year. However, our office
was made aware of multiple timeline extensions in Pine Ridge
because IHS direct care facilities continue to fail CMS
surveys.
Just last Friday, the Pine Ridge IHS hospital was deemed
not in compliance with CMS' conditions of participation for
emergency services. By issuing a final notification for the
Pine Ridge IHS hospital, the facility is in immediate jeopardy
status and the hospital's provider agreement will be terminated
at the end of next week.
Termination means that IHS can no longer bill Medicare for
services and impacts Medicaid funding as well. Further, future
third party revenue available to IHS fund services, maintenance
projects and other necessary costs will likely be reduced.
Finally, there is a high turnover throughout the entire IHS
organization. In fact, in the Great Plains Region, we have had
five different area directors in just the last 21 months. That
is an average tenure of roughly four months in this important
management position. We have not had a full-time director since
February 2015.
Tribal members are suffering and even dying due to
inadequate and disgraceful care. IHS will only continue to fail
until we take a close look at the operations funding, quality
of care and management at IHS.
I believe a comprehensive assessment of IHS is necessary
first, as a necessary first step to making calculated and
systemic changes at IHS. S. 465 would accomplish this goal and
set us on a path of addressing the longstanding failures of
IHS.
It would require the Inspector General of the Department of
Health and Human Services to conduct an assessment of IHS'
health care delivery systems and financial management processes
only at direct care facilities. I want to be clear. This
assessment is not proposed for tribes with 638 agreements in
place, only direct IHS facilities.
Let me finish with this. The assessment I am proposing is a
proven model of identifying potential reforms. We all remember
the problems in 2014 with the Veterans Administration's health
care. To address this issue, Congress passed legislation
calling for the Secretary of the VA to conduct an overall and
systematic assessment of the VA health care system.
The integrated report was completed within the mandated
time frame of less than a year and was officially submitted to
the Secretary of the VA in September of 2015. The assessment
provided feedback and recommended changes that could lead to
improvement in health care outcomes. The same should be done
for the Indian Health Service.
Mr. Chairman and Ranking Member Udall, I thank you both for
your time and patience with me in my message to you today.
Thank you.
The Chairman. Senator Heinrich.
STATEMENT OF HON. MARTIN HEINRICH,
U.S. SENATOR FROM NEW MEXICO
Senator Heinrich. Thank you, Chairman Hoeven and Vice
Chairman Udall for holding this hearing on my legislation, the
Safeguard Tribal Objects of Patrimony Act of 2017, the STOP
Act. I would also like to thank the members of this Committee
who are co-sponsors in this legislation. I believe that 8 out
of the 15 members of the Committee have signed on in support.
This bill's strong bipartisan support gives me hope that we
can solve this problem for tribal communities that we represent
in the very near future. The need for this legislation is
straightforward.
We all recognize the incredible beauty of American Indian
art, especially when you live in a State like New Mexico, you
can explore and admire the remnants of ancient culture in
places like Chaco Canyon and the Gila Cliff dwellings. You can
discover both traditional and modern art masterpieces created
by Native artists.
We can also recognize there is a clear difference between
supporting tribal artists or collecting artifacts ethically and
legally as opposed to dealing or exporting items tribes have
identified as essential and sacred pieces of their cultural
heritage. This issue came up last year when Pueblo of Acoma
Governor Kurt Riley, who is here today, discovered that a
sacred ceremonial shield had been stolen and was about to be
sold to the highest bidder in Paris. I look forward to hearing
Governor Riley's testimony today so that he can tell us all
about the devastating impact cultural theft has on communities
like his.
When Governor Riley informed me about this robbery of the
Pueblos' cultural patrimony last year, I called on the State
Department to take all possible action to halt that auction.
Thankfully, intense public outcry and diplomatic pressure were
enough to halt the illegal sale of a tribe's cultural
patrimony, but the case is still pending. The shield has not
been returned to the Pueblo.
In many other cases, tribes in New Mexico and across the
Nation have been forced to effectively pay a ransom or had to
stand by and watch the sale of priceless, religious and
cultural items in international markets. Under current Federal
law, it is a crime to sell these types of protected Native
American cultural objects in the United States. Unfortunately,
however, the penalties in the Archaeological Resources
Protection Act and the Native American Graves Protection and
Repatriation Act are not as high as other similar statutes like
the National Stolen Property Act.
Prosecutions are too infrequent to deter criminals from
smuggling and selling these objects. There is no explicit ban
on exporting these items to foreign nations where they might be
sold at auction, a fact cited by the French Government when
they initially declined to stop the auction of the Acoma
Shield.
That is why I introduced the Safeguard Tribal Objects of
Patrimony Act, the STOP Act. The STOP Act increases penalties
for illegally trafficking in tribal cultural patrimony. It also
explicitly prohibits exporting these objects and establishes a
Federal policy to encourage the voluntary return of sacred
objects held in private collections.
While improving Federal law to create a stronger legal
deterrence, if we are going to end cultural theft, we also need
to change the hearts and minds of collectors and dealers
engaged in it. I appreciate the collaboration and support we
have had with New Mexico's Pueblos, the Jicarilla and Mescalero
Apache Nations, the Navajo Nation and tribes across Indian
Country to craft this legislation.
I am proud that the STOP Act has the support of the
National Congress of American Indians, the All Indian Pueblo
Council, the United South and Eastern Tribe Sovereignty
Protection Fund, the Great Plains Tribal Chairmen's
Association, the Midwest Alliance of Sovereign Tribes, and more
than 20 individual tribal Nations.
The widespread support for the STOP Act across Indian
Country is unfortunate evidence of how widespread theft and
illegal sale of tribal patrimony have been. When I introduced
the STOP Act earlier this year, I met with high school students
from the Santa Fe Indian School's Leadership Institute who had
come to Capitol Hill to advocate for important issues in their
communities. These students shared with me a position paper
they had prepared on the importance of passing the STOP Act.
They also shared personal stories about how important
protecting cultural items is to their generation as they work
to fulfill their sacred trust, as generations before them have.
Listening to what these incredible young people had to say
reinforced the urgency with which we must act to return and
safeguard these items. We need to take all possible action to
repatriate stolen, culturally-significant items to their
rightful owners.
Chairman Hoeven and Vice Chairman Udall, again, I am
grateful to you both for holding this hearing. I hope you will
work to pass the STOP Act out of this Committee and work with
me to pass it in the full Senate as soon as possible.
Thank you both very much. Thanks to the Committee.
The Chairman. Thank you, Senator.
Are there other opening statements before we proceed to our
witnesses?
[No audible response.]
The Chairman. If not, then we have with us today: Mr. John
Tahsuda, Principal Deputy Assistant Secretary, Indian Affairs,
U.S. Department of the Interior; Ms. Elizabeth A. Fowler,
Deputy Director, Management Operations, Indian Health Service,
U.S. Department of Health and Human Services; the Honorable
Dave Flute, Chairman, Sisseton Wahpeton Oyate of the Lake
Traverse Reservation, which we share in North Dakota and South
Dakota; and the Honorable Kurt Riley, Governor, Pueblo of
Acoma.
Thanks to all of our witnesses for being here.
Secretary Tahsuda, you may proceed.
STATEMENT OF JOHN TAHSUDA III, PRINCIPAL DEPUTY
ASSISTANT SECRETARY, INDIAN AFFAIRS, U.S.
DEPARTMENT OF THE INTERIOR
Mr. Tahsuda. Thank you, Chairman Hoeven, Vice Chairman
Udall and members of the Committee. My name is Jon Tahsuda. I
am the Acting Assistant Secretary for Indian Affairs at the
Department of the Interior.
Thank you for the opportunity to provide testimony before
this Committee on S. 1400, the Safeguarding Tribal Objects of
Patrimony Act of 2017.
The protection of tribal nations is of the utmost
importance to the Department of the Interior. Safeguarding
sacred and cultural patrimony is integral to that mission and
vital to the livelihoods and culture of tribal Nations.
While we appreciate Congress' interest to address the
repatriation of cultural heritage, as evidenced by the passage
last Congress of H. Con. Res.122, the Protection of the Right
of Tribes to stop the Export of Cultural and Traditional
Patrimony Resolution, the Government Accountability Office is
currently in the process of completing an important study on
this matter. The study, which was requested by the House
Judiciary Committee in 2016, includes an assessment of policies
and practices conducted by DOI, as well as the Department of
State and Department of Justice.
The GAO is in the process of assessing the following
questions which assessment will also likely be accompanied by a
series of recommendations for Federal actions: One, what
actions, if any, have Federal agencies taken to prevent the
looting, theft, and trafficking of Native American cultural
items; two, what actions, if any, have Federal agencies taken
over the past 10 years to investigate and prosecute cases of
looting, theft, and trafficking of Native American cultural
items; three, what actions, if any, have Federal agencies and
Native American tribes taken to repatriate Native American
cultural items held in foreign collections or repositories; and
four, what challenges, if any, are there regarding efforts to
prevent and prosecute cases related to looting, theft, and
trafficking of Native American cultural items and what options,
if any, exist for addressing these challenges?
The Department believes this report will be paramount in
informing a broader conversation among agencies as to how best
to address the protection and repatriation of Native American
cultural items. Therefore, we believe it would be premature for
the Department to provide a position on S. 1400, the Safeguard
Tribal Objects of Patrimony Act of 2017, until the GAO report
is released in full.
Thank you for providing the Department the opportunity to
testify today. I am available to answer any questions the
Committee may have.
[The prepared statement of Mr. Tahsuda follows:]
Prepared Statement of John Tahsuda III, Principal Deputy Assistant
Secretary, Indian Affairs, U.S. Department of the Interior
Chairman Hoeven, Vice Chairman Udall, and members of the Committee,
my name is John Tahsuda, and I am the Acting Assistant Secretary for
Indian Affairs at the Department of the Interior (Department). Thank
you for the opportunity to provide testimony before this Committee on
S. 1400, the Safeguard Tribal Objects of Patrimony Act of 2017.
The protection of tribal nations is of the utmost importance to the
Department of the Interior. Safeguarding sacred and cultural patrimony
is integral to that mission and vital to the livelihoods and culture of
tribal nations. While we appreciate Congress' interest to address the
repatriation of cultural heritage, as evidenced by the passage last
Congress of H.Con.Res.122, Protection of the Right of Tribes to stop
the Export of Cultural and Traditional (PROTECT) Patrimony Resolution,
the Government Accountability Office (GAO) is currently in the process
of completing an important study on this matter. The study, which was
requested by the House Judiciary Committee in 2016, includes an
assessment of policies and practices conducted on behalf of the
Department, as well as the Department of State and Department of
Justice. The GAO is in the process of assessing the following
questions, which assessment will also likely be accompanied by a series
of recommendations for federal actions:
1. What actions, if any, have federal agencies taken to
prevent the looting, theft, and trafficking of Native American
cultural items;
2. What actions, if any, have federal agencies taken over the
past 10 years to investigate and prosecute cases of looting,
theft, and trafficking of Native American cultural items;
3. What actions, if any, have federal agencies and Native
American tribes taken to repatriate Native American cultural
items held in foreign collections or repositories; and
4. What challenges, if any, are there regarding efforts to
prevent and prosecute cases related to looting, theft, and
trafficking of Native American cultural items and what options,
if any, exist for addressing these challenges?
The Department believes this report will be paramount in informing
a broader conversation among agencies as to how best to address the
protection and repatriation of Native American cultural items.
Therefore, we believe it would be premature for the Department to
provide a position on S. 1400, the Safeguard Tribal Objects of
Patrimony Act of 2017, until the GAO report is released in full.
The Department's continuing commitment to combatting the theft, and
illegal possession, sale, or transfer of tribal cultural heritage
remains as strong today as it has ever been. The Department is also
devoted to combatting the export of illicitly acquired cultural items
and to helping tribes repatriate their cultural heritage from abroad.
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.
The Department believes an essential element to combatting Native
American cultural heritage theft is vigorous enforcement of laws such
as NAGPRA and the Archaeological Resources Protection Act (ARPA).
Currently, these laws are our best enforcement mechanisms to prevent
theft, illegal possession, sale, transfer and export of cultural
patrimony within the United States.
Thank you for providing the Department the opportunity to provide a
statement on S. 1400. I am available to answer any questions the
Committee may have.
The Chairman. Thank you.
Ms. Fowler.
STATEMENT OF ELIZABETH A. FOWLER, DEPUTY DIRECTOR, MANAGEMENT
OPERATIONS, INDIAN HEALTH SERVICE, U.S. DEPARTMENT OF HEALTH
AND HUMAN SERVICES
Ms. Fowler. Good afternoon, Chairman Hoeven, Vice-Chairman
Udall, and Members of the Committee. I am Elizabeth A. Fowler,
Deputy Director for Management Operations, Indian Health
Service. I am an enrolled member of the Comanche Tribe with
descendancy from the Eastern Band of Cherokee Indians as well.
I am pleased to provide testimony before the Senate
Committee on Indian Affairs on S. 465, the Independent Outside
Audit of the Indian Health Service Act of 2017. I would like to
thank you, Chairman Hoeven, Vice-Chairman Udall, and members of
the Committee for elevating the importance of accountability
and transparency in the IHS.
IHS is a distinct agency in the Department of Health and
Human Services established to provide health care services to
American Indians and Alaska Natives with the mission to raise
their physical, mental, social and spiritual health to the
highest level. The IHS is steadfastly committed to responsible
stewardship of the resources entrusted to us. We are working
every day to overcome the longstanding challenges that impede
our efforts to meet our mission and provide the quality health
care to American Indians and Alaska Natives they expect and
deserve.
We are proud to report to you that our concerted efforts
are producing results. In the past year, IHS has established
patient wait time standards, updated governing board bylaws,
acquired a credentialing software system, developed a standard
patient experience survey, developed a quality assurance
accountability dashboard, and awarded a master contract for
accreditation of all of our hospitals.
Our efforts have brought positive results at the IHS
Rosebud Hospital. As of September 1, the IHS Rosebud Hospital
is no longer under a Systems Improvement Agreement after the
Centers for Medicare and Medicaid Services determined it had
substantially met all the Medicare conditions of participation.
However, longstanding challenges remain. On November 3, the
IHS Pine Ridge Hospital received a CMS notice of termination
effective November 18, 2017 due to non-compliance with the
Medicare Conditions of Participation for hospitals.
The IHS immediately began instituting corrective actions at
the Pine Ridge Hospital. For instance, we are enhancing
staffing levels in the emergency department and improving
emergency department operations through Federal oversight and
more effective utilization of telehealth consultation. It is an
Agency priority to bring the IHS Omaha Winnebago Hospital and
the IHS Pine Ridge Hospital into full compliance with CMS
standards.
To better serve our patients, we pursue new ideas and
innovative ways to improve how we do business in delivering
quality care. Two innovative ways in which we are transforming
the IHS is through implementing our Quality Framework and
executing an IHS strategic plan.
The agency is also focused on strengthening our operations
to improve communication with stakeholders and securely and
effectively managing assets and resources. We are leveraging
tools from the private sector to improve our financial
operations. For example, we are using a business financial
planning tool to standardize and enhance budget planning
throughout our agency.
We are also using the data analytic software that was
selected for our health care delivery and quality assurance
efforts to also provide improved financial analysis and
reporting. These tools will profoundly reshape the business of
IHS and allow us to better use our existing financial and
administrative systems to support our mission.
The IHS continues to strengthen our overall internal
control environment. We are expanding the role of our internal
audit staff which augments existing external audits and
assessments. This allows us to proactively resolve problems as
they are identified.
Regarding financial audits, the fiscal year 2016 HHS-wide
CFO audit resulted in a clean opinion for the financial
statements that cover the Indian Health Service. The fiscal
year 2017 audit is nearing completion. In addition, the IHS
complies with standard Federal budget execution and budgetary
resource reporting requirements, including publicly available
quarterly reports.
With regard to the bill S. 465, IHS is prepared to provide
the Committee technical assistance on the legislation.
Thank you for your commitment to improving quality, safety
and access to health care for American Indians and Alaska
Natives.
I would be happy to answer any questions you may have.
[The prepared statement of Ms. Fowler follows:]
Prepared Statement of Elizabeth A. Fowler, Deputy Director, Management
Operations, Indian Health Service, U.S. Department of Health and Human
Services
Chairman and Members of the Committee:
Good afternoon, Chairman Hoeven, Vice-Chairman Udall, and Members
of the Committee. I am Elizabeth A. Fowler, Deputy Director for
Management Operations, Indian Health Service (IHS). I am an enrolled
member of the Comanche Tribe with descendancy from the Eastern Band of
Cherokee Indians. I am pleased to provide testimony before the Senate
Committee on Indian Affairs on S. 465, the Independent Outside Audit of
the Indian Health Service Act of 2017. I would like to thank you,
Chairman Hoeven, Vice-Chairman Udall, and Members of the Committee for
elevating the importance of accountability and transparency in the IHS.
IHS is a distinct agency in the Department of Health and Human
Services (HHS), established to carry out the responsibilities,
authorities, and functions of the United States to provide health care
services to American Indians and Alaska Natives. It is the only HHS
agency whose primary function is direct delivery of health care. The
mission of IHS, in partnership with American Indian and Alaska Native
people, is to raise the physical, mental, social, and spiritual health
of American Indians and Alaska Natives to the highest level. The IHS
system consists of 12 Area offices, which oversee 170 Service Units
that provide care at the local level. Health services are provided
through facilities managed by the IHS, by Tribes and tribal
organizations under authorities of the Indian Self-Determination and
Education Assistance Act (ISDEAA), and through contracts and grants
awarded to urban Indian organizations authorized by the Indian Health
Care Improvement Act.
The IHS is steadfastly committed to responsible stewardship of the
resources entrusted to us. We are working every day to overcome the
longstanding systemic challenges that impede our efforts to meet our
mission and provide the quality health care to American Indians and
Alaska Natives that they expect. We are proud to report to you that our
concerted efforts are producing results. On August 25, the official
Patient Wait Times policy setting the IHS wait times standards for
outpatient primary care visits in direct care IHS facilities was signed
by the IHS Acting Director. In less than a year, we updated Governing
Board Bylaws, acquired a credentialing software system, developed a
standard patient experience of care survey, developed a quality
assurance accountability dashboard, and awarded a master contract for
accreditation of all of our hospitals. In the Great Plains Area, our
efforts have brought positive results at the IHS Rosebud Hospital. As
of September 1, the IHS Rosebud Hospital is no longer under a Systems
Improvement Agreement after the Centers for Medicare & Medicaid
Services (CMS) determined it had substantially met all the Medicare
Conditions of Participation.
While we are making progress in the Great Plains, longstanding
challenges remain. On November 3, the IHS Pine Ridge Hospital received
a CMS notice of intent to terminate its provider agreement effective
November 18, 2017 due to non-compliance with the Medicare Conditions of
Participation for hospitals. The IHS immediately began instituting
corrective actions at the Pine Ridge Hospital. For instance, we are
enhancing staffing levels in the emergency department; deploying U.S.
Public Health Service officers to reduce staff turnover; and continuing
to improve emergency department operations through federal oversight
and more effective utilization of telehealth consultation. These
actions are in addition to the significant steps we have taken in the
last year at the Pine Ridge Hospital. It remains an Agency priority to
bring the IHS Omaha Winnebago Hospital and the IHS Pine Ridge Hospital
into full compliance with CMS standards. We are improving agency
oversight of quality care at all levels of the IHS.
To better serve American Indians and Alaska Natives, we proactively
pursue new ideas and innovative ways to improve how we do business in
delivering quality care and accounting for the transparent
administration of federal resources. Two innovative ways in which we
are transforming the IHS is through implementing our Quality Framework
and executing an IHS strategic plan. These tools will guide the
development, implementation and sustainability of quality-focused,
high-reliability programs at all of our hospitals and clinics. Core
elements of the Framework focus on strengthening our organizational
capacity, and improving transparency and communication to IHS
stakeholders. The IHS strategic plan is currently being developed, with
consultation and conferral from Tribes and urban Indian organizations.
The strategic plan will sustain and build on the achievements of the
Quality Framework and institute objectives such as providing
comprehensive, culturally acceptable health services, promoting a
quality performing organization through innovation of the Indian health
system, and strengthening IHS program management and operations that
securely and effectively manage assets and resources.
Efficient, Effective, and Transparent Stewardship
As responsible stewards of the resources entrusted to us, one of
our most important duties is to practice fiscal responsibility and
transparency. The Agency is focused on strengthening our program
management and operations in order to improve communication with IHS
stakeholders and securely and effectively manage assets and resources.
We have taken solid steps to ensure that our stewardship is efficient,
effective, and transparent within the IHS and with our external
stakeholders as well.
To help us reach our objectives, we are leveraging a widely used
private sector tool to standardize and enhance budget planning
throughout our agency. We are also in the process of using data
analytics software to provide improved transparency of our financial
information. This is software we purchased for use in health care
delivery and quality assurance, and is now being effectively used for
additional purposes to improve our communications with IHS stakeholders
and management of our resources.
One application of the data analytics software being used for
financial purposes is a dashboard for our third party collections,
which is nearing deployment. While the agency has been able to provide
summary or detailed reports for specific pieces of our collections
data, we lacked the ability to rapidly review and report our data in a
more efficient and automated manner. This new application enables us to
review data from Fiscal Year (FY) 2010 forward, by location, insurance
type, and month, for example, and easily do comparisons. We are also
using the data analytics software to develop a standard financial
report to enhance the transparency and communication of our financial
data with tribal partners. This report can be run by Area Offices and
Service Units to combine data on our funding allocations, actual
spending, and collections. These tools will profoundly reshape the
business of IHS and allow us to better utilize our existing financial
and administrative systems to support our mission.
To better serve our stakeholders, the IHS continues to search for
new ways to strengthen our overall internal control environment. The
IHS is actively inspecting its system and programs to resolve any
shortfalls that exist. Our Chief Financial Officer (CFO) will be
expanding the role of internal audit staff within our enterprise risk
management program. This includes augmenting existing annual audits and
assessments performed by contracted external professionals so that we
can target and examine key financial and administrative programs and
address the areas of greatest risk. This audit program enables us to
conduct our own reviews, complementing the important work of our
Departmental Inspector General and the Government Accountability
Office, and allows us to proactively resolve problems as they are
identified.
As the IHS continues to expand our internal audit capabilities,
this will also complement the current routine and statutorily required
external audits and financial reporting. For example, IHS just
participated in the annual CFO Audit Act audit of our financial
statement, conducted by a nationally-known independent firm contracted
by HHS. While we do not yet have the results for FY 2017, the audit
opinion for FY 2016 was unqualified for the entire Department, meaning
financial records and statements were fairly and appropriately
presented, and in accordance with Generally Accepted Accounting
Principles. In addition, the IHS complies with the Office of Management
and Budget Circular A-11 which includes standard federal budget
execution and budgetary resource reporting requirements, including
quarterly reports that are publicly available. IHS meets the standards
applicable to federal financial reporting as we continue our efforts to
be more transparent and improve our utilization of financial
information.
Another aspect of the IHS stewardship of resources is the Purchased
and Referred Care (PRC) program. Improving the data reporting and
measurement system is essential to assuring that PRC programs are
efficient. IHS modified the data system that tracks PRC referrals and
emergency self-referrals and expects to begin baseline reporting for
calendar year (CY) 2017, which will be available in CY 2018.
The IHS offers the following comments on the draft amendment in the
nature of a substitute to S. 465. The substitute to S. 465 provides
authority for a comprehensive assessment of the IHS health care
delivery systems and financial management process by the HHS Inspector
General or a private entity. IHS is prepared to provide the Committee
technical assistance on the legislation.
If the HHS Inspector General does not conduct the assessment, the
legislation requires the Secretary to enter into contracts with one or
more private entities to conduct the assessment no later than 180 days
after the date of enactment. We are reviewing possible acquisition
strategies that would allow us to obtain a qualified, quality provider
expeditiously but would prefer that the deadline be expressed as a goal
to ensure the process results in the identification and selection of
the best provider, including adequate time to consider Indian Economic
Enterprises as required under the Buy Indian Act.
If a contract is entered into by the Secretary with a private
entity, the magnitude and detail of the assessments proposed by the
bill may require significant financial resources. If the Secretary
directs IHS to fund the cost of the contract with the independent
entity, it is important to note that IHS's existing budget could not
support a project of this scale without affecting direct health
services. With approximately 60 percent of the budget administered by
Tribes and tribal organizations through ISDEAA agreements, there would
be very little flexibility for reprogramming remaining resources to
accomplish the proposed assessment.
Finally, S. 465 would require that the Secretary of HHS immediately
submit the proposed assessment to several Congressional Committees and
Members, then publish the report in the Federal Register and on a
public HHS website. Requiring concurrent reporting and near-immediate
publication of such a broad assessment may raise constitutional
concerns about executive branch supervision and executive privilege. We
recommend giving the Secretary a chance to review the report before it
is submitted to Congress and made public.
Thank you for your commitment to improving quality, safety, and
access to health care for American Indians and Alaska Natives. I will
be happy to answer any questions the Committee may have.
The Chairman. Chairman Flute.
STATEMENT OF HON. DAVE FLUTE, CHAIRMAN, SISSETON WAHPETON OYATE
OF THE LAKE TRAVERSE RESERVATION
Mr. Flute. Chairman Hoeven, Vice Chairman Udall and members
of the Committee, it is good to see you again since the couple
of weeks ago I think I was here.
For the record, my name is Dave Flute, Chairman of the
Sisseton Wahpeton Sioux Tribe. I am pleased to testify in
support of S. 465, the Independent Outside Audit of the Indian
Health Service Act of 2017. I appreciate the opportunity to be
able to provide some oral testimony here today.
First of all, we want to thank Senator Rounds for his
leadership and being a champion for us in the Great Plains
Region, for not just listening to us, but hearing us and, more
importantly, for the Senator and for all of you great Committee
members here taking action. We appreciate that. You are not
just listening and hearing us but you are taking action. We
appreciate that because action is needed.
We support this bill. I am the Chairman of the Sisseton
Wahpeton Sioux Tribe, Chairman of the United Tribes of North
Dakota, and a member of the Great Plains Tribal Chairmen's
Association. We do have a letter and resolution from the Great
Plains Tribal Chairmen's Association that fully supports
Senator Rounds' efforts with S. 465.
We know that health care is a treaty right. That treaty
right was established for the cessation of lands of that we
ceded for American immigrants over 150 years ago. We are coming
up on the sesquicentennial of the Ft. Laramie treaty. My tribe
just celebrated the sesquicentennial of our treaty. We know
that is a treaty right.
The Great Plains Tribal Chairmen's Association and Great
Plains Tribal Chairmen Health Board strongly feel that the
Indian Health Service is failing us. They are failing to meet
that treaty obligation. We are not getting the quality service
we need. We are not getting the transparency that we are asking
for. We are not getting the financial accountability.
I do want to echo and reiterate Senator Rounds' comments
that we appreciate the recognition of those treaty obligations
by our congressional leadership to those treaty tribes in the
Great Plains Region. Transparency is important for us. When the
Great Plains Tribal Chairmen's Health Board, the Great Plains
Tribal Chairmen's Health Association and the Chairmen's
Association requests information, it would be beneficial to
both the treaty tribes and the Indian Health Service if the
Indian Health Service would provide us that information without
questioning us as to why we need that information or that it is
or is not going to help us in trying to find the solutions so
that we can help our congressional leaders fix this problem.
We see in S. 465 that this will be a good first step
forward to try to figure out what the problems are and why
there is a high turnover rate. The Sisseton Wahpeton Sioux
Tribe has not had a permanent CEO at our local service unit for
quite some time, two or three years now. The Aberdeen area has
not seen a permanent area director there for the Indian Health
Service for a long, long time.
The lack of consistency rolls downhill. The lack of
consistency at the regional level also contributes to the lack
of consistency at the local level. That even goes further to
the service we are not getting.
Mr. Chairman, if I could quickly give an example of this.
We have tribal members with heart conditions, with diabetes
conditions, and different types of health conditions. They go
to the Indian Health Service and see a doctor. In three months,
they see a different doctor who gives them a different
medication.
Our tribal members are being tossed here and there with
different types of medications and different types of
diagnoses. We have issues there where, as Senator Rounds said,
we are talking about peoples' lives and health care.
In my tribe, that young girl was given cough syrup when she
was coughing up blood. It makes the hair on the back of my neck
stand up. I apologize for being very passionate on this issue
but there is a very big problem in the Great Plains Region. We
need to get it fixed. We support the Senator.
We have doctor positions that need to be filled at the
local service level. IHS comes in and takes our monies,
hospital and clinic monies. Those might not be tribal monies,
but they are obligated to the tribes, H&C monies. For the
Sisseton unit, $2.2 million was taken. From the Cheyenne River
Sioux Tribe, $4 million was taken with no consultation
whatsoever, no communication.
Because our tribal members who have worked in the health
profession for a long, long time, they are restricted to not
saying anything to their tribal leadership. I am not going to
mention any names but we have good tribal members working in
our local service units telling the tribal leaders, we think
H&C monies are going to be taken.
I called Admiral Buchanan and asked, are you taking our H&C
monies? He would not say anything. He would not say yes or no.
That lack of transparency is damaging the relationships that we
need to build with the Indian Health Service so we can fix the
problems of health care for Indian Country.
When we do not get the data we ask for, we have to make our
observations on the data that we do collect that is being given
to us by our research. When IHS is not giving us that data, our
observations are they are using this money to channel into
other areas. As the Senator said, without having a budget
formula, without having a plan, they are bandaiding this and
taking money from our service units.
We have people with meth addiction, depression, and opioid
use who are requesting mental health services and they are
being turned away. We have $2.2 million you are going to funnel
from other service units when you could have used that money.
IHS could have used that money and sat with the tribe and
looked at our tribe's needs.
They need mental health counseling, they need to expand
their service room so they can counsel these people. It is
hurting us. Meth is hurting us. It is taking dollars away from
people who need prosthetics for diabetes. I could go on and on
and on with real life examples, Senator.
I appreciate it. I apologize for the passion I have with
the Indian Health Service. It is a treaty obligation. We fully
support our South Dakota Senator, as we do the Senate Committee
on Indian Affairs.
I want to thank you for your time. I will answer any
questions you have.
Thank you.
[The prepared statement of Mr. Flute follows:]
Prepared Statement of Hon. Dave Flute, Chairman, Sisseton Wahpeton
Oyate of the Lake Traverse Reservation
I. Introduction
Good Afternoon, Mr. Chairman, Mr. Vice Chairman, Senator Heitkamp
and Members of the Committee, and Honored Guests. My name is David
Flute, and I am the Chairman of the Sisseton-Wahpeton Oyate. I am
pleased to testify in support of S. 465, Independent Outside Assessment
of the Indian Health Service. Thank you for the opportunity to testify
today.
As Native Americans, it is important for us to have respect for our
Native Nations, treaty rights, and Indian lands because our right to
self-governance and self-determination on our Reservations is the
essence of Freedom and Liberty for us. Indian Health Care is an
important treaty right, and we gave up millions of acres of land to
non-Indian immigrants in return for our permanent homeland. Indian
health care is intended to make our homelands, livable homes, but the
Indian Health Service (IHS) has not lived up to its mandate. IHS
Administration is failing the Sisseton Wahpeton Sioux Tribe and the
Great Plains Region, so we need Congress's help to turn the IHS around
and provide good, reliable health care for our Native people. The
introduction and passage of S. 465 is an important step towards that
goal.
Senator Rounds is providing important leadership on the Indian
Health Service for Native Americans in the Senate, as he did as
Governor of the State of South Dakota to make the government
accountable to the people. We thank him and the Committee for all of
your hard work.
We also support the passage of S. 1400, the Safeguard Tribal
Objects of Patrimony Act to protect our Tribal Cultural Items from
wrongful transfer and sale.
II. Background: The Sisseton-Wahpeton Sioux Tribe
The Sisseton-Wahpeton Oyate (meaning Sisseton-Wahpeton Dakota
Nation and we have been known historically as the Sisseton-Wahpeton
Sioux Tribe) original homelands were in Minnesota, North and South
Dakota. The Sisseton-Wahpeton Sioux Tribe is signatory to the 1851
Treaty with the Sisseton-Wahpeton Bands of Dakota Sioux (Traverse des
Sioux) and the 1867 Lake Traverse Treaty, which set aside the Lake
Traverse Reservation as our ``permanent home''--
Beginning at the head of Lake Travers[e], and thence along the
treaty-line of the treaty of 1851 to Kampeska Lake; thence in a
direct line to Reipan or the northeast point of the Coteau des
Prairie[s], and thence passing north of Skunk Lake, on the most
direct line to the foot of Lake Traverse, and thence along the
treaty-line of 1851 to the place of beginning.
The Lake Traverse Reservation is located in the Northeastern part
of South Dakota and a small portion of southeastern corner of North
Dakota. The reservation boundaries extend across seven counties, two in
North Dakota and five in South Dakota. \1\
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\1\ Under the Allotment Policy, significant tribal lands were sold
as surplus lands against our wishes, but under the modern Indian Self-
Determination Policy, Congress affirmed our efforts to recover those
portion of our homelands, and treats our recovered Indian trust lands
as ``on-reservation'' acquisitions within the original boundaries of
the Lake Traverse Reservation. Public Law 93-491 (1974).
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Our 1867 Treaty continues our ``friendly relations with the
Government and people of the United States.'' Our Treaty also
recognizes our people's right to self-government and to adopt ``laws
for the security of life and property,'' to promote the ``advancement
of civilization'' and promote ``prosperity'' among our people.
Today, we have a total of 14,000 tribal members located throughout
the United States and others serving overseas in the Armed Forces.
Among the Sisseton-Wahpeton Sioux Tribe, we have maintain our treaty
alliance with the United States, and we are rightfully proud of our
volunteer service to the United States through the military. We are
proud of our service to the United States through the military. Woodrow
Wilson Keeble, one of our most respected tribal members, served in
World War II and in Korea and was posthumously awarded the
Congressional Medal of Honor by President George W. Bush.
III. IHS Realities, Medical and Administrative Issues
The Indian Health Care administered by the IHS is rationed medical
care for American Indians. Although Indian health care is based upon
treaty obligations, American Indians have poor health and suffer
premature death when compared with the general public. Our American
Indian life expectancy that is 4.2 years less than Americans overall.
Our people die at higher rates than other Americans from alcoholism
(552 percent higher), diabetes (182 percent higher), unintentional
injuries (138 percent higher), homicide (83 percent higher), and
suicide (74 percent higher). American Indians suffer from higher
mortality from cervical cancer (1.2 times higher); respiratory disease
(1.4 times higher); and maternal deaths (1.4 times higher). Our health
care disparities in the Great Plains are greater than these national
disparities.
Indian Nations Need Equity In Per Patient Health Care Funding: Per
patient annual health care spending: Medicare $12,042. National health
care spending is $7,713. Veterans Affairs $6,980. Bureau of Prisons
$5,010. IHS spends only $2,849 per patient. The National Tribal Budget
Workgroup estimates full funding for IHS would cost $30.8 Billion
compared to the actual $4.8 Billion FY 2016 IHS Budget.
Real Life Situation at Sisseton Wahpeton: Without equity in
per patient funding, Indian Health Service patients will
present for urgent care at the CDP [Coteau des Prairies]
emergency room. The IHS does not pay for urgent care in an ER.
They only pay for the Priority I emergencies. This results in
bills going unpaid and turned over to collection agencies. It
is difficult for lay people to determine how urgent or emergent
their situation is. Maybe their child could wait for IHS to be
open, but how can the average person know?
Indian Nations Need Telemedicine. Telemedicine requires
technological investment. In the long run, telemedicine will provide
greater access to proper medical care at reduced cost. Legislative
support including authorization for appropriations, pilot projects, and
dedicated funding will speed implementation. As a model for successful
use of telemedicine being used today, health care providers in non-
native rural hospital emergency rooms throughout eastern South Dakota,
use eER, ePharmacy and elCU technology in Critical Access Hospitals
throughout the state to extend Hospital emergency, pharmacy and
internal medicine services to rural, geographically isolated
communities.
Indian Nations Need Competitive Pay for Physicians and PAs. IHS
must increase pay for its Physicians and increase overall efforts to
recruit and retain physicians. Congress should also remember that our
Physician Assistants (PA) also need increased competitive pay. PAs have
been recognized by Congress and the President as crucial to improving
U.S. health care. Congress has recognized our PAs as one of three
healthcare professions in primary care. For all medical professionals,
Physicians, Physician Assistants and Nurse Practitioners, as well as
Registered Nurses, scholarships and loan forgiveness should be
increased to improve recruitment of these medical professionals to the
IHS.
Our Sisseton Wahpeton Tribal Government staff provided the
following statement to give you specific examples of problems with
access to Physicians and Physicians assistants.
Real Life Situation at Sisseton Wahpeton: One of the biggest
issues with our health care is the fragmentation of services
between IHS (which provides primary medical, dental, mental
health, optometry, and physical therapy), Coteau des Prairies
Health Care System (private facility in Sisseton that has an
emergency department, OB delivery unit, and home health care
services), Tribal Health Programs, and tertiary care facilities
(where patients are typically sent for surgery and specialty
care services). The IHS employs the Improving Patient Care
model, which empanels patients to provider teams. However, the
majority of the provider positions are vacant and filled with
temporary staff (temporary doctors, physician assistants, and
nurse practitioners who are contracted for short periods of
time). As a result, there is also lack of continuity in care
for our patients. People often do not know who their provider
is. And the providers are not there for them when they are
really sick. When they are really sick they present at the
emergency room, and many who have an alternate resource, such
as Medicaid or Medicare, stay with the provider at the private
facility that is there for them in an emergency and who is
familiar with their condition. IHS is sort of the ``fair
weather'' friend type of provider to patients and often not
substantively there for them when the going is tough.
Keep Our IHS Facilities Open. HHS must direct CMS and IHS to
coordinate on IHS and tribal hospital, emergency room, and clinic
staffing to ensure proper certification of our Indian country health
care facilities. CMS and IHS should collaborate to provide technical
assistance, emergency funding and temporary staffing when necessary to
keep facilities open as long term operational plans are developed and
implemented. Accordingly, S. 465 should include a study of CMS closures
of IHS facility and a plan for CMS to assist IHS facilities to stay
open with CMS training, technical assistance, and temporary staffing.
IHS Purchased/Referred Care--A Top Priority. The IHS is organized
to provide only basic emergency and clinical care at tribal hospitals
and clinics. In regard to Purchased/Referred Care (PRC), the IHS
explains:
Because IHS programs are not fully funded, the PRC program
must rely on specific regulations relating to eligibility,
notification, residency, and a medical priority rating system.
The IHS is designated as the payor of last resort meaning that
all other available alternate resources including IHS
facilities must first be used before payment is expected. These
mechanisms enhance the IHS to stretch the limited PRC dollars
and designed to extend services to more Indians. This renders
the PRC program to authorize care at restricted levels and
results in a rationed health care system. . . .
In short, IHS Purchased/Referred Care is limited and unless a
patient will lose life or limb, services are denied. We need more
funding for access to specialized care-especially high demand services
such as respiratory care and psychiatric care. IHS medical denials are
resulting in unwarranted deaths, disease and injury and ruining our
people financially.
Medicare-Like Rates. Medicare-Like Rates must be applied to all
outpatient care and referrals. S. 465 should be amended to study a
requirement that medical providers to accept Medicare-Like Rates from
the IHS and tribal governments.
Maximize Third-Party Revenue. The IHS must be able to bill third-
party insurance when patients have coverage, and Congress should enact
legislation to enhance the IHS billing system to make sure that Third-
Party Insurers do not evade responsibility. Then our Third Party
Revenue must stay at home to reimburse and enhance the facility that
generated the funds through patient services. This is an extremely
important aspect of the S. 465 study.
Cut HHS/IHS Bureaucracy. Central Office and Regional Office staff
should be cut back with resources reallocated to Indian country. PHS
Commission Corps medical providers should be sent to the field to
practice medicine in Indian country.
IV. S. 465, Independent Outside Assessment of the Indian Health Service
S. 465, the Independent Outside Assessment of the Indian Health
Service should be enacted into law. It is essential for Health Care
funding to be effectively and efficiently used to provide patient care,
promote health and positive community health outcomes to raise the
standard of wellness and the life expectance of Native Americans. S.
465 seeks to take those initial steps towards efficiency, efficacy,
accountability, and transparency.
Cooperation and Coordination with GAO. The Government
Accountability Office (GAO) is an independent, nonpartisan agency that
works for Congress. GAO's Mission is to support Congress and ``help
improve the performance and ensure the accountability of the federal
government for the benefit of the American people'' by providing
``information that is objective, fact-based, nonpartisan, non-
ideological, fair, and balanced.'' Under S. 465, HHS Office of
Inspector General should conduct its review in cooperation and
coordination with GAO. Hence, Section 2(b)(1) should start with the
phrase, ``In cooperation and coordination with the GAO,'' before ``The
Inspector General.''
Consultation and Coordination with Indian Tribal Governments. In
carrying out its responsibilities under this statute, HHS OIG and GAO
should be directed to consult and coordinate with Indian nations and
tribes in accordance with the principles of Executive Order 13175,
concerning the formulation of the study, findings of the draft report,
and the submission to Congress. HHS and GAO are familiar with the
Executive Order and have policies to ensure compliance with its
requirements.
Contracting with State and Local Health Care Institutions. The
Snyder Act provides authority for the IHS to contract with State and
local institutions for supplementary provision of governmental services
to Indian country. The IHS explains:
Snyder Act authorized funds ``for the relief of distress and
conservation of health. . . [and] for the employment of. . .
physicians. . . for Indian tribes throughout the United
States.'' (1921). Transfer Act placed Indian health programs in
the PHS. (1955)
The appropriation to IHS by Congress to provide medical
services and health care programs are made available through
the Snyder Act of 1921. . . .
The term Purchased/Referred Care (PRC) originated under BIA
when medical health care services were contracted out to health
care providers. In 1955 the Transfer Act moved health care from
BIA to the Department of Health Education & Welfare and
established the IHS.
The PRC funds are used to supplement and complement other
health care resources available to eligible Indian people. The
funds is used in situations where: (1) no IHS direct care
facility exists, (2) the direct care element is incapable of
providing required emergency and/or specialty care, (3) the
direct care element has an overflow of medical care workload,
and (4) supplementation of alternate resources (i.e., Medicare,
private insurance) is required to provide comprehensive care to
eligible Indian people.
S. 465's study should include the possibility for development of
better IHS strategies for partnering with local health facilities,
rather than simply paying third party billing.
Recommendations from Tribal Staff on Relations with Local
Third Party Health Care Providers: The intent when we were
planning for the Sisseton Wahpeton Health Center was for the
IHS medical providers to get South Dakota licensed and
credentialed and privileged at Coteau des Prairies Hospital.
Sisseton IHS and Coteau des Prairies Hospital could have (and
still could or should) enter into a partnership whereby the
providers are cross-privileged and SIHS could use the resources
appropriated by Congress for OUR PEOPLE to provide 24/7 urgent
care services at that facility. However, there has been no
initiative (as in motivation or effort) for the SWIHS to pursue
a partnership, which would put IHS in the driver's seat as the
true primary care coordinators for patients that are em paneled
to the various provider teams. The benefit of a partnership
would be: (1) continuity of care for our patients; (2) Tribal
members would not be stuck with bills for non-emergencies; (3)
IHS could cover expenses from other accounts, such as third
party, instead of PRC (which are very precious); (4) CDP would
not be caught with the big accounts receivable that (we
understand) they have been complaining about; and (4) our
patients wouldn't need to be made to feel like second-class
patients (uninsured) when the reality is that health care is a
Federal treaty and trust responsibility. The Sisseton IHS is
probably the biggest payor and source of revenue for the Coteau
des Prairies Hospital. IHS should leverage that buying power
through partnership contracts so that the Indian patients are
treated like other health care customers when they go to CDP
and they are provided quality care, instead of sometimes being
shuffled back to IHS or made to feel they are being ``turned
away.''
How Dual Patients Are Handled. The IHS explains that: ``It is the
policy of the Indian Health Service to charge Medicare and Medicaid for
services provided to beneficiaries of the IHS program who are enrolled
in Medicare and Medicaid. See Social Security Act Section 1911 [42 USC
1396j], Section 1880 [42 USC 1395qq].'' For IHS patients, who have
private insurance or are eligible for Medicaid reimbursement, the IHS
should be engaged in third party billing, and the receipts from third
party billing inure to the benefit of the IHS facility, which generates
the billed services. By statute, the IHS must keep the proceeds of the
third party billing at the IHS or tribal facility that generates the
revenue, but in the Great Plains, our Tribes have experienced problems
with IHS seeking to use Hospital & Clinics funding to cover special
projects in other elsewhere, to cover budget shortfalls in other areas,
and even to settle labor disputes! As a result, Sisseton Wahpeton Third
Party collections were expended to replace regular IHS operating
funding when the revenue should have been available for Sisseton
Wahpeton facility improvement.
Whenever funds are available from Sisseton-Wahpeton IHS Third Party
Collections, these revenues should be remitted to the Tribe or its
facility in accordance with the Indian Health Care Improvement Act,
which directs that the Secretary of HHS is acting as an agent for the
Tribal Government when collecting Medicare and Medicaid fees from
covered patients. We are entitled to ``100 percent pass through of
payments'' due to our facilities to be used for health care facilities
and service improvement. 25 U.S.C. sec. 641(c)(1)(A). Our IHS Region
was wrongly going to divert our Medicare and Medicaid collections away
from our Service Unit. IHS must follow the law by making our Medicare
and Medicaid fees available for services, equipment and improvements at
our Service Unit. This Third Party Billing Issue was a concern for the
entire Great Plains Region. The Act's provisions should include a
reference to this law and a study of IHS compliance with existing law.
V. Conclusion
The Sisseton Wahpeton Sioux Tribe maintains our alliance with the
United States as a friend and ally of our Indian nation. We ask you to
work with us to promote Indian SelfDetermination and effective Federal
and tribal government. The Indian Health Service has much to answer for
because its bureaucracy has kept the doors closed on their operations.
Our Native people need good, reliable health care, and the delivery of
such health care requires funding, foresight, planning, and the
recruitment and retention of solid personnel--the Physicians, PAs, and
Nurses--equipment, and facilities. Working together, Congress and our
Indian nations can improve the Indian Health Service and Indian health
care. Let's build a partnership based upon objective facts and good,
reliable, professional medical service through the enactment of S. 465.
Finally, I would like to express Sisseton Wahpeton Sioux Tribe's
support for S. 1400, the Safeguard Tribal Objects of Patrimony Act.
Traditionally, our Native people were spiritual people, who integrated
our reverence for the Creator into our everyday lives. The United
States, from the 1880s through 1978, enacted laws and regulations and
kept them on the books to outlaw Native American religion and cultural
observances. My father, together with many of our tribal leaders
nationwide, worked with Congress to secure enactment of the American
Indian Religious Freedom Act of 1978, 42 U.S.C. 1996, to secure the
Freedom of Religion to Native Americans. S. 1400, which protects our
Tribal Cultural Items from wrongful transfer outside the Native
American community is a further step towards full Religious Freedom for
Native Americans.
The Chairman. Thank you, Chairman Flute.
Governor Riley.
STATEMENT OF HON. KURT RILEY, GOVERNOR, PUEBLO OF ACOMA
Mr. Riley. [Greeting in native tongue.]
Chairman Hoeven, Vice Chairman Udall and members of the
Committee, tribal leaders and guests, my name is Kurt Riley, I
am the Governor for the Pueblo of Acoma. The Pueblo of Acoma
greatly appreciates this opportunity to present on S. 1400, the
STOP Act.
During my time as Governor, the Pueblo has fought to
recover many sensitive cultural items that illegally left our
lands. Under traditional Acoma law, no one person may own these
items whether they belong to the community as a whole and are
looked after by their caretakers who cannot sell them or remove
them from the Pueblo.
These items play significant roles within our culture, our
traditional calendar, our societies, our families and our way
of life. Most importantly, they are critical to how we pass our
identity down to our children. Their loss threatens our
cultural survival.
The best known of our fight in this effort is to regain the
Acoma Shield which was set to be auctioned in Paris in 2016.
The Shield was stolen some years ago but current members of the
Pueblo still remember its use in our societies. It is not by
chance that the Shield was shipped from the southwest to Paris
for sale. It could have been publicly offered for sale in the
southwest where Federal domestic laws would have supported our
claim.
With the help of our congressional delegation, Federal
agency officials, Indian Country and the general public, the
Paris sale was blocked. This was a rare success. Ironically,
however, we still do not have the Shield.
A big part of the problem is that the United States does
not have an explicit ban on the export of these items. Foreign
governments, including France, have consistently told the
Pueblo and Federal officials they will not facilitate return of
our cultural heritage because the United States' laws do not
explicitly prohibit their exportation.
The STOP Act contains an explicit ban. It should be
emphasized that this ban is narrowly drawn. The STOP Act only
applies to items obtained in violation of NAGPRA, the
Archaeological Resources Protection Act or the Antiquities Act.
So far, the ban to apply a violation of one of these laws has
yet to have already occurred.
Despite its narrow scope, the STOP Act will send a clear
message about American values and will provide an essential
tool for securing the cooperation of foreign countries when
sensitive cultural property appears in auction houses and
elsewhere overseas. In addition to a ban, the STOP Act
increases the penalty for violation of NAGPRA and encourages a
system of voluntary return. We are hopeful about voluntary
return. Our experience is that when dealers and collectors get
to know us and we get to know them, many issues of concern are
resolved and sensitive items do come home. Still, there are
always those who just do not care. Lastly, the STOP Act creates
a tribal working group to advise the Federal Government. This
group is needed to maintain the Federal Government's focus on
this issue and to provide professional expertise as matters of
identification and such arise.
I am happy that Assistant Secretary Tahsuda is testifying
today. The Department of the Interior has been a great ally in
these efforts. Notably, Secretary Zinke was one of the co-
sponsors of the Protect Patrimony Resolution which passed in
the Congress last year. That resolution condemns the illegal
trafficking in tribal cultural patrimony and calls for an
explicit export ban.
I thank you, members of the Committee, for giving me the
opportunity to share Acoma's experiences. I would especially
like to thank the New Mexico Congressional Delegation for their
steadfast support on this important matter that is very
important to the Pueblo Acoma.
I would be happy to answer any questions 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), please accept this
written testimony for the full committee hearing on the Safeguard
Tribal Objects of Patrimony (STOP) Act of 2017, S. 1400, and other
bills held by the Senate Committee on Indian Affairs on Wednesday,
November 8, 2017. The Pueblo appreciates the opportunity to present on
this important topic to the Committee and your staff. We have a great
deal of experience in both combating illegal trafficking of our
protected tribal cultural heritage and in seeking repatriation of those
items. The Pueblo is grateful for the opportunity to share this
experience with you.
I. The Pueblo's Experience Related to the Protection of Tribal Cultural
Heritage
The Pueblo has developed expertise in the protection of tribal
cultural heritage, especially across international borders.
Unfortunately, this expertise came out of a necessity to protect our
community and our cultural heritage, essential to our way of life. Many
people view our cultural heritage as beautiful works of art, as
talismans of a past culture they would like to own, or as items to
trade for profit. Whatever intrinsic beauty these items possess, that
is not their intended purpose.
Our items of cultural heritage have significant roles to play
within our culture, our traditional calendar, our societies, our
families, and our way of life. Our cultural heritage also helps us
honor and uphold our values and teach those values to our young people.
So important are these items of cultural heritage that, under the
Pueblo's traditional law, no one person may own them. Rather they
belong to the community and are cared for by their caretakers, who
cannot sell them or take these items from the Pueblo. We have
prioritized protecting the Pueblo's items of cultural heritage because
we believe that, without their presence, we cannot continue our way of
life.
The Pueblo has fought many instances of trafficking in our cultural
heritage, including in New Mexico, across the country, and overseas.
One well-known example is our fight to regain an important ceremonial
shield (Acoma Shield), which was most recently set to be auctioned in
Paris, France in May of 2016. The Acoma Shield was stolen from its
caretaker in the 1970s and was eventually exported overseas. Although
we had the unprecedented success of halting the auction--with the help
of our congressional delegation, federal agency officials, Indian
country, and the general public--we have not yet been able to bring the
Acoma Shield home. The Acoma Shield is just one of hundreds of items of
cultural heritage that have illegally left our community and been
trafficked into various markets.
Some of the earliest recorded incidents of the Pueblo's efforts to
regain its cultural heritage involve federal criminal convictions
handed down just after the 1990 passage of the Native American Graves
Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3001-3013, 18
U.S.C. 1 170. In United States v. Brian Garcia and Gerald Garcia, 92-
515 JC (D.N.M. 1992), two Pueblo brothers pled guilty to illegally
trafficking the Pueblo's cultural heritage in violation of NAGPRA. The
Pueblo worked closely with the United States Attorney's Office to
verify the provenance of the items sold. This case represents the
importance with which the Pueblo treats this issue, even pursuing the
federal conviction of our own people. Later, in 1999, another example
in United States v. Tidwell, 191 F.3d 976 (9th Cir. 1999), involved a
set of historic Catholic priest robes cared for by the Pueblo, dating
from the time of the Pueblo Revolt. They were recovered along with many
Hopi items of cultural heritage. A Bureau of Indian Affairs (BIA)
special agent investigated a non-Indian tribal art and antique dealer,
leading to his conviction and the recovery of the items.
Later, in the 2000s, as national and international auction houses
began to expand and reach more collectors through the Internet, the
Pueblo became significantly more involved in attempting to identify and
recover its cultural heritage. In 2006, the Pueblo worked diligently
with its legal counsel for the return of historic wooden beams and
doors from the San Esteban del Rey Mission Church. \1\ A national
auction house had possession of the wooden beams along with nearly 50
other items of cultural heritage belonging to the Pueblo.
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\1\ The San Estevan del Rey Mission Church sits atop the mesa at
the Pueblo. Founded in 1629, it is still cared for and maintained by
the Pueblo's people. It was declared a National Landmark and also
listed on the National Register of Historic Places in 1970.
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In 2015, the Pueblo began devoting more of its resources to
addressing this issue, as it observed a disturbing number of its
cultural heritage items for sale in a variety of contexts. They were
being sold in locations locally, nationally, and internationally.
Across 10 incidents, 24 separate Pueblo cultural heritage items were
identified as being available for sale or having already been sold. Of
these 24 items, the Pueblo was only successful in securing the return
of 11.
This year in 2017, the Pueblo has so far encountered and identified
eight cultural heritage items for sale or as having already been sold.
The Pueblo was successful in recovering five of these items. We believe
the decrease in number over the past two years is due to our efforts to
retrieve our cultural heritage items from public sales. However, we are
unsure whether this represents an actual decrease in market activity or
instead represents an increase in black market activity hidden from the
public eye.
II. Steps the Pueblo Has Taken to Combat Trafficking
System for Identifying Protected Items of Cultural Heritage
It is important to understand that existing federal laws protect
only specific types of items associated with tribes. Most items are not
protected. NAGPRA, the Archaeological Resources Protection Act (ARPA),
16 U.S.C. 470aa-470m, and the Antiquities Act, 16 U.S.C. 431433
repealed and re-codified at 54 U.S.C. 320301-320303, 18 U.S.C.
1866, have specific statutory standards for the items they protect.
Generally, they must meet a threshold level of cultural significance
and must have been taken from specific lands within specific time
periods. Although tribes are involved in determining which items are
protected, see United States v. Tidwell, 191 F.3d 976, 980 (9th Cir.
1999), they cannot claim items are protected if they do not meet these
statutory standards.
The type of cultural items the Pueblo is attempting to protect are
difficult to fully describe and publicly identify because of their
sacred and confidential ceremonial use. However, the items 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 items of cultural heritage may
have some intrinsic artistic value, their purpose is very different.
The Pueblo's statutes allow for the inclusion of traditional law.
Under the Pueblo's traditional law, it is illegal for any member, who
may have these cultural heritage items in their care, to sell or remove
these item from the Pueblo. \2\ These cultural heritage items are often
considered sacred, and many are used publicly and privately in
ceremonies. The Pueblo has used this law to establish that specific
items are considered tribal cultural heritage, which aids in
establishing their protection and facilitating prosecution under
federal law. \3\
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\2\ Different types of the Pueblo's cultural heritage may be
stored, cared for, or used differently depending on what the item is.
For example, some cultural heritage items may be cared for and stored
by individuals or families in their homes. Other times, different
cultural heritage items 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.
Items 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). See also
fn 5, infra.
\3\ See United States v. Brian Garcia and Gerald Garcia, 92-515 JC
(D.N.M. 1992); United States v. Tidwell, 191 F.3d 976 (9th Cir. 1999)
discussed supra.
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The Pueblo also has in place a system tribal representative use for
identifying whether an item is from the Pueblo and whether it qualifies
as protected tribal cultural heritage. The Pueblo, through its Tribal
Historic Preservation Office, has created an Advisory Board to assist
and consult on cultural matters. The Advisory Board is staffed with
knowledgeable cultural practitioners, many of which are current or
former religious leaders within the community.
To protect the Acoma Shield, federal agencies first needed
information from us to establish that this was qualified as protected
under existing federal law. When the Acoma Shield first came up for
auction, Pueblo cultural practitioners identified it, recognizing its
construction, iconography, and usage as a ceremonial and sacred item.
Needing further information, the Pueblo worked with its community and
cultural leaders to find out as much information as possible about how
this left the Pueblo. While an object of cultural heritage need not be
stolen to be protected by federal law, we learned that the Acoma Shield
was stolen in the mid 1970's from a home in ``Sky City,'' our ancestral
mesa-top village. \4\ We were extremely fortunate to locate an
individual who had a living memory of the Acoma Shield and immediately
recognized it. Working with Department of Justice special agents, we
obtained affidavits from tribal members to establish the facts
surrounding the Acoma Shield's theft and information about its cultural
significance. These affidavits were used to establish that the Acoma
Shield qualified for protection under federal law.
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\4\ At the time, the Pueblo did not have an established police
force, and it was unclear, but unlikely, whether the caretaker ever
made any criminal report to BIA officials, who would have had
jurisdiction over crimes in Indian country.
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Many collectors have argued that these items were lawfully acquired
and can be legally sold. This is a false statement and
mischaracterization of how Pueblo and federal law treats these items.
Under Pueblo and federal law, the Pueblo itself effectively owns the
items in question. \5\ They need not be stolen to qualify for
protection. Instead, if they meet the statutory standards for
protection under the Pueblo's laws and federal statutes--including
NAGPRA, ARPA, and the Antiquities Act--their removal from tribal or
federal land and trafficking is illegal.
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\5\ The clearest analogy to describe the Pueblo's law is the legal
concept of property rights being that of a ``bundle of sticks.'' For
the Pueblo, some members may have rights of possession, but they do not
have the right to sell an item of cultural heritage. In fact,
traditional law dictates what is to happen to a cultural heritage item
if a caretaker can no longer care for the item. The right to sell an
item of cultural heritage, although not contemplated in the Pueblo's
traditional law, would be exclusively reserved to the Pueblo itself.
Certainly, the Pueblo has never exercised this right. The Pueblo's
traditional law closely miiTors the definition of ``cultural
patrimony'' defined under NAGPRA, 25 U.S.C. 3001(3)(D).
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Therefore, the Pueblo asks this Committee to not think of these
sacred and ceremonial objects in property rights terms, like title and
ownership. The Pueblo has significant claims and arguments to be made
that, by possessing ownership, items of tribal cultural heritage are
forms of tribal governmental property; but 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.
Monitoring Market
With the increased availability of auction house catalogues on the
Internet, the Pueblo regularly attempts to monitor and respond to
auctions involving its cultural heritage items. Subscriptions to a wide
variety of auction catalogues, online gallery websites, and auction
websites (like Ebay) allow for scanned listings of sensitive items
belonging to the Pueblo or our sister pueblos. The Pueblo also attempts
to attend local antique or art conventions, and to visit local
galleries and pawn shops, where we often discover questionable and
sensitive cultural heritage items for sale.
This 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 number of cultural heritage items that may be out there. Aside
from tribes' own work, there is no other system for monitoring the
trafficking of tribal cultural heritage.
Relationships with Federal Officials
The Pueblo has also worked to create close relationships with
federal officials who can help when a protected item of cultural
heritage is identified as being trafficked domestically or abroad. We
work closely with a Southwest Regional Enforcement Officer from the
BIA's Office of Justice Services and have also made contacts within the
Department of State and Department of Justice. In some instances, we
have facilitated communication between these federal agencies.
Thankfully, these federal officials have been instrumental in the
Pueblo's efforts to regain its items of cultural heritage.
Voluntary Return
Under federal law, like other governmental entities, tribes are
treated as non-profit entities for tax purposes. The Pueblo has used
this to our advantage in attempting to incentivize individuals who are
considering returning an item. Paperwork and information are provided
for these individuals to receive a tax deduction and the returned item
is treated as a donation to the Pueblo.
III. Support for the STOP Act
The Pueblo fully supports the passage of the Safeguard Tribal
Objects of Patrimony (STOP) Act, S. 1400. Through our experiences, we
have learned many hard lessons, first hand, in attempting to protect
our cultural heritage. One lesson the Pueblo learned is that existing
federal laws are not enough. The proposed STOP Act strengthens these
federal laws in areas we believe need it most. Particularly, the STOP
Act places an emphasis on facilitating the return of protected items
trafficked internationally, where we have been the most powerless to
gain the repatriation of our cultural heritage. These provisions are
designed to keep tribal cultural heritage items with tribes and to
facilitate the return of those that have left tribal possession.
Current federal law does not adequately address and protect the
hundreds of cultural items that have been trafficked from the United
States to overseas markets. A quick look at past auction catalogues of
places where Pueblo cultural heritage has been sold quickly reveals the
sheer enormity of tribal cultural heritage that has left the country.
\6\ For instance, countries like France have become a safe haven for
the illegal trafficking of sensitive tribal cultural heritage items,
which are sold freely without recourse. The STOP Act is an important
tool to close the door on the illegal trafficking of our important
cultural heritage items and send a message that this illegal practice
will not be tolerated.
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\6\ The French auction of tribal cultural heritage has been widely
reported since at least 2013. See, e.g., Tom Mashberg, Secret Bid
Guides Hopi Spirits Home, NEW YORK TIMES, (Dec. 16, 2013), http://
www.nytimes.com/2013/12/17/arts/designisecret-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/2014/06/3Warts/design/sale-of-hopi-
religious-items-continues-despite-us-embassysefforts.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/annenbergfoundation-
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-
idUSKBNOOR1DG20150611.
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Increased Penalties
The STOP Act's provisions would increase criminal penalties under
NAGPRA. This increase is needed to deter potential violators. It is
also needed to encourage federal officers to initiate prosecutions, as
increased penalties justify additional resources expended on a case.
Export Restriction
The STOP Act's provisions would also explicitly prohibit the
exportation of tribal cultural heritage obtained in violation of
NAGPRA, ARPA, or the Antiquities Act. This is needed because foreign
governments, including France, have consistently told the Pueblo and
federal officials that they will not facilitate return of our tribal
cultural heritage because United States law does not explicitly
prohibit its exportation. This is due in part to a 1970 international
treaty entitled the ``UNESCO Convention on the Means of Prohibiting and
Preventing the Illicit Import, Export and Transfer of Ownership of
Cultural Property'' in which signatories agreed to protect each other's
cultural heritage when exportation of such cultural heritage is illegal
in the originating country.
To be clear, the STOP Act's prohibition applies only to items that
were already protected under NAGPRA, ARPA, or the Antiquities Act. The
art industry has been operating under the definitions of these laws for
decades. The STOP Act does not make illegal the export of any items
that were legal to sell domestically. Further, the Act does not extend
to items that were not already protected under federal law.
The Protection of the Right of Tribes to stop the Export of
Cultural and Traditional (PROTECT) Patrimony Resolution, a 2016 joint
resolution, supports congressional development of an explicit
restriction on exportation. Additionally, congressional representatives
have requested the Government Accountability Office research
international trafficking in tribal cultural heritage. Thus, Congress
has already indicated its interest in resolving the problem of illegal
exportation.
Federal Framework for Voluntary Return
Third, the STOP Act would create a framework for the federal
government to work with individuals or organizations to facilitate the
voluntary return of cultural heritage to tribes. It would call on the
Department of the Interior and Department of State to designate a
liaison for facilitating voluntary return as well as to hold trainings.
It would also call on the Department of the Interior to create a
referral system for directing individuals to the correct tribe for
repatriation.
We have learned that many individuals would like to repatriate
items but do not know where to start. We have also learned that the
federal government lacks a systematic process for locating a tribe
associated with an item and connecting the individual with a tribal
representative. This framework will provide well-intended individuals a
mechanism to work collaboratively in returning tribal cultural
heritage.
Tribal Working Group
Last, the STOP Act creates a tribal working group to advise the
federal government on issues related to protection of tribal cultural
heritage. The working group would work with other federal agencies and
committees spread throughout the federal government that deal with
tribal cultural heritage issues. We hope the working group will lead to
more collaboration.
IV. Addressing Criticisms of the STOP Act
The Pueblo is aware that the STOP Act has come under criticism by a
small segment of art dealers. Predominantly this criticism has come
from the Antique Tribal Arts Dealer Association, Inc. (ATADA). We would
like to take this opportunity to address and dispel the main arguments
ATADA is currently making.
MYTH: The STOP Act is redundant because NAGPRA and ARPA already
prohibit the trafficking of and 18 U.S.C. 554 already prohibits
the exportation of protected tribal cultural heritage.
RESPONSE
The STOP Act is consistent with, but does not duplicate, existing
statutes. No federal statute clearly and explicitly prohibits the act
of exporting protected tribal cultural heritage. Existing statutes
could be interpreted to prohibit and penalize export of tribal cultural
heritage, but these statutes have not been effective in preventing
export and convincing foreign countries to aid in repatriation.
Section 554 of Title 18 imposes criminal penalties on any person
who ``exports. . . any merchandise, article, or object contrary to any
law or regulation of the United States.'' This provision has not been
used by the federal government to prohibit the export of tribal
cultural heritage. Further, some courts applying Section 554 in other
circumstances have found that export must already be illegal under
another separate statute for Section 554's penalties to apply.
NAGPRA bars transporting for sale, selling, and purchasing certain
cultural items. 18 U.S.C. 1 170. ARPA bars transporting, selling, and
purchasing certain archaeological resources, including in some cases in
foreign commerce. 16 U.S.C. 470ee(b)(1)-(2), (c). The Antiquities Act
protects objects of antiquity from unlawful appropriation, excavation,
injury, and destruction. 18 U.S.C. 1866(b). None contains an explicit
export restriction.
As discussed previously, foreign officials have told the Department
of State and tribes that without a United States statute explicitly and
clearly prohibiting export of tribal cultural heritage, they have
limited authority to facilitate return. In the Pueblo's most recent
effort to recover the Acoma Shield, France cited directly to United
States law and explicitly pointed to the absence of exportation
prohibitions on tribal cultural items in its reasoning for not halting
the auction. This has resulted in the Pueblo attempting to halt
auctions of its protected cultural items abroad through foreign agency
processes without success, including filing a fonnal protest with
France's Conseil des Ventes that was denied.
Legally and politically, we cannot stem the tide of illegal
international trafficking without an explicit export restriction. The
STOP Act will provide clarity in domestic law, removing a stumbling
block for the Department of State and tribes as they seek return of
tribal cultural heritage from abroad.
MYTH: The STOP Act's protections may be unconstitutional and could harm
the Indian art market due in part to a lack of clarity
regarding which items are 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. Therefore, the STOP Act cannot qualify as a
regulatory taking.
Instead, increased penalties under the STOP Act are limited to
``cultural items'' already protected by NAGPRA, 25 U.S.C. 3001(3).
Additionally, the export restriction is limited to ``cultural items''
removed unlawfully under NAGPRA, ``archaeological resources'' removed
unlawfiilly under ARPA, 16 U.S.C. 470bb(1), and ``objects of
antiquity'' removed unlawfully under the Antiquities Act, see 18 U.S.C.
1866(b). The export restriction only applies to these items when they
are ``Native American,'' as that terms is defined in NAGPRA, 25 U.S.0
3001(9). Although the STOP Act's voluntary return provisions could be
read broadly, they have no legal consequences and are meant only to
create a framework for individuals seeking to return any items they
have and would like to return.
Further, existing federal laws require a defendant to have
knowingly engaged in activity made illegal under NAGPRA or ARPA to
receive a penalty--thereby, requiring that the individual knew or
should have known the object was protected. See 18 U.S.C. 1 170; 16
U.S.C. 470ee(d). Courts have stated that those engaging in the sale
and trafficking of protected items are deemed to possess a certain
level of knowledge, whether an item qualifies as protected. See, e.g.,
United States v. Tidwell, 191 F.3d 976, 980 (9th Cir. 1999); United
States v. Carrow, 119 F.3d 796, 803-04 (10th Cir. 1997). This is no
different than other situations where persons who hold themselves out
as having specialized knowledge are held to a higher standard of care
in dealing with others. The STOP Act's export restriction maintains
this knowledge requirement.
The definitions incorporated into 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 items
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 Antiquities
Act); but see United States v. Diaz, 499 F.2d 113 (9th Cir. 1974)
(finding Antiquities Act unconstitutionally vague).
Congress has already closely considered this issue, including
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).
Congress structured the definitions of the items protected by NAGPRA to
create the necessary flexibility that allows tribes to apply their own
standards and framework and ensure that items necessary for their
cultural survival are protected. The intention of existing federal law,
as explained by Congress and interpreted by the courts, was to clearly
value tribal culture and law as ultimately dictating the function,
treatment, and distinction of which items are considered protected.
It is paramount that, if collectors or dealers are unsure if an
item qualifies as protected tribal cultural heritage, they contact the
tribe for more information. To create a comprehensive list of protected
cultural heritage items is impractical and inappropriate. There are 567
federally recognized tribes, and each has its own objects that meet
existing federal laws' definitions to qualify as protected. Within a
tribe, traditional knowledge may be held in a diffused way. This makes
it next to impossible to list all items considered protected because,
as dictated by tribal law and custom, the totality of such cultural
knowledge may not be held by one person, but rather only parts of such
knowledge may be held by individual people separately. The idea of
creating lists is troubling to many tribal leaders, especially where it
may be culturally inappropriate to divulge information regarding
protected objects without a significant reason, and tribal religious
leaders may not be willing to do so. Additionally, making the public
aware that an item qualifies as protected may drive the price of that
item up and make it more desirable to buy and sell in the black market.
Last, creating a list of protected items may create a presumption of
completeness that only items on the list are protected.
If Congress determines it necessary to amend the STOP Act to
provide additional clarity regarding which items are protected,
especially regarding the export restriction provision, the Pueblo could
support a permitting system. The Pueblo requests tribes and tribal
organizations be involved in drafting any such provision.
MYTH: The STOP Act will result in United States Customs and Border
Protection acrents seizina all items associated with tribes.
RESPONSE
For the reasons discussed above, we believe the STOP Act contains
the necessary clarity regarding which items qualify as protected and
thus as subject to the export restriction. Further, the STOP Act
authorizes the Attorney General and the Secretary of Homeland Security,
in consultation with the Secretary of the Interior, to prescribe rules
and regulations to carry out the export restriction. Any guidelines
necessary for Customs and Border Protection Customs agents should be
created through such rules and regulations and not statute.
V. Conclusion
Since the introduction of the STOP Act, there has been a surge of
interest in this issue, resulting in increased contact between the
Pueblo and various collectors and dealers. The Pueblo seeks to build
and expand its positive relationships with this community. When they
return these items home, it is a joy for us. We are extremely thankful.
We do not want to be forced to rely on the law and the courts to
secure the return of tribal cultural heritage. However, it must be
emphasized that the law must set forth the values of the United States
and its Native peoples. 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 STOP Act, refining the STOP Act
as needed, and finally securing its ultimate passage.
The Chairman. Thank you, Governor Riley.
I will turn to Senator Heinrich first. I understand you
have another obligation. Would like to proceed with your
questions?
Senator Heinrich. Thank you very much, Mr. Chairman.
Governor Riley, it has been more than a year and a half now
since your Pueblo first discovered that the Acoma Shield was on
the auction block in Paris, France. That was far from the first
time something like this has happened.
Could you tell us a little bit about whether you are aware
of additional cases before or since then of sacred items being
sold internationally? Is this a one-off issue or is this
something you see a great deal?
Mr. Riley. Mr. Chairman, Vice Chairman Udall, Senator
Heinrich, thank you for the question.
Members of the Committee, before I came to the hearing
today, I did send out word through the All Pueblo Council of
Governors network asking my fellow governors if there were any
instances of items that were sold from their pueblos since
2016. The answer was a resounding yes. This is not just a one-
time occurrence. It continues to today.
Senator Heinrich. How urgent is it for your Pueblo and
tribes across the Country for the Federal Government to take
some concrete action to stop these auctions? Particularly, do
you believe we should wait for the GAO study before taking
action on this?
Mr. Riley. Again, thank you.
It is urgent. I cannot express how urgent it is to me. The
Shield must come home.
This is my second term as a governor. It is an appointed
position. We do not run for these offices. Since it has been so
long, members of the Committee, especially the religious people
in my community, have expressed, please, just bring it home. It
is not that easy.
The sense of urgency is there within my community and, I am
sure, across Native America as we all realize, just in the
small survey that I did just recently, these cultural items are
continuing to leave and go across the seas to be sold. There is
a sense of urgency.
Should we wait for the GAO report? In my opinion, actions
can be taken now without the GAO report. However, I think once
the GAO report comes out, it will only confirm what we know, as
Native tribes, Pueblos and Nations in this Country, that it is
happening and it is still happening today.
Senator Heinrich. Mr. Tahsuda, I find it deeply troubling
to learn that almost ten months into a new Administration that
the Department of the Interior itself has not looked into what
policy changes are necessary to stop the trafficking of sacred
tribal objects.
In your testimony, you say the department is waiting to
hear from the GAO before forming a policy on this subject.
Surely your staff already has the information necessary to
develop a position on this issue. In fact, the Department of
the Interior was engaged in an extensive tribal consultation
process just last year to hear from tribes on this issue.
I, too, look forward to hearing the GAO's analysis. I hope
we can learn from it. I hope it recommends additional
solutions. I also hope that the department is not abdicating
its responsibilities to tribes by declining to develop its own
plans to solve this problem given what we know.
Can you share with us any changes the department has made
or intends to make to help stop the export of these objects or
any policy ideas or recommendations you would like to make on
this topic?
Mr. Tahsuda. I think the department, under current
authorities, has been involved in efforts in the past. I think
the Governor alluded to that. We obviously will try to do
everything we can.
I agree with the Governor this is hugely important, as
tribal history and culture are woven into American history and
culture. It is obviously important and should be important to
all of us but that means we need to get it right, I think. That
is the reason we want to wait for the GAO report.
The full responsibility is not just in our hands. We have
the Department of Justice and the State Department which have
roles in this. We want to make sure, with the end result, we
have all the tools in hand that we need to be able to protect
our tribal history, culture and objects of cultural heritage.
We want to do it the right way so that our actions are
defensible, that we can proceed with prosecutions and not have
any questions under constitutional or criminal law, questions
that could arise and hinder our efforts to protect that.
Senator Heinrich. Senator Udall and I have some experience
with this. While I have to go to another commitment, I suspect
he may have some additional questions based on our direct
experience with these issues.
Thank you.
The Chairman. Does that complete all the questions you
have, Senator?
Senator Heinrich. It does, Mr. Chair.
The Chairman. I would like to begin with Ms. Fowler.
Senator Rounds referred to the issue I am going to ask
about in my first question. Last week, the Department of Health
and Human Services notified the Indian Health Service hospital
located on the Pine Ridge Reservation, which was recently
surveyed by CMS, and from the CMS survey, they determined the
hospital would be placed in immediate jeopardy status and
terminate the hospital's provider agreements effective November
18.
That means IHS will no longer be able to bill Medicaid for
services received at that facility. My question is, since we
were notified last week of this announcement, would you provide
this Committee with an update on how IHS is working to improve
upon and address those survey results and make sure the Pine
Ridge IHS hospital retains its certification?
Ms. Fowler. Certainly. I will share what I can. It is not
my area of expertise so I may have to provide an update to you
at a later time or in writing.
As I mentioned in my testimony, we did take immediate
action. We immediately performed a root cause analysis to
evaluate the situation and began addressing some of those
immediate issues we thought needed to be addressed most
urgently such as the staffing levels for the emergency
department. We are considering our next action in light of
notice of termination.
The Chairman. My question specifically goes to the
improvements that need to be made and whether or not Pine Ridge
will retain its certification. Do you know the answer to that?
Ms. Fowler. As I understand it, the termination will occur.
At this point, there is not an action that would halt the
termination. We are considering our next steps at this point in
time.
The Chairman. Would you please provide the Committee a
report on those next steps so that we know what they are?
Ms. Fowler. We can do that.
The Chairman. Thank you.
The Senate bill, as proposed by Senator Rounds, requires a
private entity to conduct an audit of the IHS. That would cover
a wide range of areas. Senator Rounds has also been developing
a substitute amendment and working with IHS to do that.
That would provide that the Inspector General of the
Department of Health and Human Services would do the actual
assessment of IHS.
My question is, would the Inspector General of HHS be able
to complete that assessment within the given time frames? Are
there particular aspects of that study you feel should be given
priority?
Ms. Fowler. I am not able to speak about the Inspector
General's ability to perform the assessment. I will comment
that we are happy to provide technical assistance on specific
provisions of the bill in response to your last question.
The Chairman. Do you have any areas that should be
prioritized, in your opinion?
Ms. Fowler. The specific areas that are referenced in the
bill, we have engaged with the GAO and the Office of Inspector
General on several audits, assessments, and evaluations during
the past three years. This is the type of technical assistance
we would like to provide in reviewing the bill with you.
The Chairman. Chairman Flute, talk about areas of priority
for the study in terms of making sure that we address the
problems at IHS and try to come up with solutions that can make
a qualitative difference in the health care services they
provide?
Mr. Flute. We would like to see CMS not just close down the
facilities if they are not meeting the performance standards,
but also get them up to speed, give them the technical
assistance they need, such as Pine Ridge which is all news to
us.
The accountability and transparency we are looking for all
goes back to consultation and good communication with the
tribes. Tribes are trying to help figure out what is going on
in all areas.
I apologize to you, Mr. Chairman. In my opinion, there is
no one that is greater than the other. It all has to do with
quality of service. We are just not getting the answers.
Consultation is not there. We try to reach out and communicate
and we just do not get the answers we are looking for.
I don't know if that answers your question, but we do
support the bill. Great Plains does and the United Tribes of
North Dakota. We support the bill and are just trying to get
the answers and figure out why do we have a high turnover rate
of leadership?
It is unfortunate that the third-party collections, being a
veteran myself, not to highlight myself, but being able to get
services at the Fargo VA, I would rather choose to go to the
VA, as do my friends who are Iraqi and Afghanistan veterans, as
I am, who work at the Indian Health Service.
They work at the Indian Health Service. They would much
rather go to the VA and travel to Fargo and Sioux Falls to get
the quality service that they receive at the VA. It is
unfortunate that our tribal members are not veterans. They have
to go to the Indian Health Service.
They are being refused and turned away because IHS says we
don't have the purchase referred care dollars to deal with your
heart condition because you are not quite at the point of loss
of life or limb.
They send them to the other hospitals where now they are
being charged, the tribal member who is living on low income,
working at local establishments, Taco John's, or Dairy Queen at
minimum wage. The single mother is being charged and now her
credit is being damaged.
Those payments are not being made from IHS in a timely
manner. There is just so much, Mr. Chairman. I don't know if I
answered your question but we support this bill to try to get a
handle on this. We do support the efforts of the Senate.
The Chairman. Vice Chairman Udall.
Senator Udall. Thank you, Mr. Chairman.
Governor Riley, you mentioned in your testimony the trouble
in fully describing cultural items publicly because of their
sacred and confidential ceremonial use. Having worked with
Pueblos for a very long time, this is something which I am very
familiar and greatly respect that tradition.
However, critics have pointed to this confidentiality as
the root of the problem since some art collectors and dealers
may not know or be able to identify the cultural significance
of the items.
As you know, the STOP Act facilitates voluntary returns.
Are there other more effective ways to respect confidentiality
while also ensuring repatriation of these items that may have
inadvertently made their way to the market?
Mr. Riley. Thank you, Senator, for the question.
I can only speak for myself and maybe some experiences with
my tribe. Along the way, we have really experienced the
development of a relationship with these dealers. I have
approached some of these dealers myself, gone to their shops,
and once we explain to them the cultural significance of some
items, at that point, they are sometimes voluntarily returning
an item to us.
On occasion, however, because of their perception of an
investment or value to that item, we offer documentation that
they can submit. We do not put a dollar value on an item.
However, they can use that as compensation, if you can all it
compensation, since tribes are considered a 105(c)(3), so they
are making a donation to the tribe.
Lastly, however, if we do not develop a very good
relationship, we have to play hard ball. I have presented my
credentials as a tribal leader and advised the owner that if
they do not voluntarily return an item, we can take the steps
necessary to have to proceed to using laws to obtain the return
of that item. It is their choice. I would say 95 percent of the
time, you develop that type of relationship.
Another example is, on eBay, which everyone knows about, we
have gone through a process where we identify and confirm an
item should be returned to the Pueblo. Our contacts at eBay
immediately shut down the auction, connect us to the consignor
and we work out things. There are other ways.
I had a conversation earlier that some items become gray,
which is art, which is antiquity or an item of cultural
heritage. That is when it becomes much more difficult to
develop that type of relationship. The STOP Act provides that
voluntary return.
I think if we had those amenable conversations, items would
come back. However, the exportation of the item is where that
gap is present currently. As dealers, they are knowledgeable
and know that sometimes these items may be questionable, I
cannot confirm, but they also know if it is in violation of
existing law, they cannot be sold within the U.S.
That is the incentive to transport that item across the
seas where we would have, as Pueblo, a much more difficult
time, once it leaves the U.S., to get those items back. A very
good example of that is the Acoma Shield.
Senator Udall. Thank you very much.
Mr. Tahsuda, you were unable to provide an official
position on the STOP Act in your testimony but you did state
the department believes an essential element to combating theft
of cultural heritage is vigorous enforcement of NAGPRA.
Yet, earlier this summer, Secretary Zinke suspended all
NAGPRA Review Committee activities. The Review Committee is
``an important enforcement mechanism under NAGPRA established
by Congress to monitor and review the implementation of the
inventory and identification process and repatriation
activities.'' That is a quote from the statute.
Notably, the Review Committee provides Congress and the
department with recommendations as to how agencies can better
enforce NAGPRA. How can the department adequately enforce
NAGPRA when Secretary Zinke put the Review Committee on hiatus
indefinitely?
Mr. Tahsuda. Thank you, Vice Chairman.
I think it is a bit of a complicated question. We have done
some review of several FACA committees of which this is one.
That has been part of the process. The committee is there and
will be operating but my understanding is we wanted to make
sure the committee was operating within the law and that the
membership adequately reflected the intent of the law.
There are a number of open slots that need to be filled. I
think that is part of the process that is going on, but the
committee will be constituted to do its job.
Senator Udall. The problem with this is that is the entity
to do the enforcement. If you are putting this in hiatus
indefinitely, you have stopped the enforcement activities. I
have a real doubt. I would like to know and I am going to ask
you to put in the record in a question, what authority he has
to put this in hiatus indefinitely? I just don't see how.
The Congress has urged you to act. It is your
responsibility to act. I do not think you can say oh, we are
going to indefinitely postpone it. The message should go to the
Secretary that he reconvene the Review Committee and continue
its statutorily mandated mission, which is I think tremendously
important.
I have gone over here. Mr. Chairman, I have several other
questions.
The Chairman. We will have another round.
Senator Cortez Masto.
STATEMENT OF HON. CATHERINE CORTEZ MASTO,
U.S. SENATOR FROM NEVADA
Senator Cortez Masto. I appreciate the conversation today.
Let me start with S. 1400.
Governor Riley and Chairman Flute, it is my interpretation,
after reading the language, that I think the STOP Act remains
consistent with Federal statutes. In fact, it goes further to
explicitly state a prohibition of knowingly exporting or
transporting protected tribal cultural artifacts, artifacts
that under current domestic law, are illegal.
Is it the position of your tribes, and the dozens of other
tribal leaders who have sent in support letters, that this bill
aims to clearly and plainly elevate tribal heritage under the
same protection for interpretation internationally, yes or no?
In other words, the intent of this bill is to elevate the
tribal heritage, your culture and the items you believe are
significant to return and are important to have specific
litigation or specific enforcement?
Mr. Flute. Yes, I think it would enhance our culture and
heritage, especially for our youth. Tribal languages are on
some lists of being lost but tribal languages are strongly
connected to artifacts and those sacred objects that are out on
the black market or different types of websites for sale.
Yes, it would enhance and bring awareness to our culture
and our language, especially for our youth to reconnect and
identify with themselves who they are.
Senator Cortez Masto. Governor, I will ask you the same
thing because I also see the Antique Tribal Arts Dealers
Association has concerns about the bill because they claim it
criminalizes art but what is art to them is something different
to you. Can you please explain why it is so different to tribal
communities across this Country and why returning tribal
artifacts is so important?
Mr. Riley. Senator, I thank you for the question.
It is very difficult to answer that question and I have
answered that question on numerous occasions. These items are
not pieces of art. They were made and created for a certain
purpose within our cultural societies and our cultural
calendar. Unfortunately, it is not recognized anywhere else but
within our own tribal communities.
To answer the previous question, it does raise the status
of these items and being able to be recognized internationally
at the same level of other world countries and other world
cultures. I think there has been a long time in not being
recognized as such.
The United States had treaties with other countries to
prohibit items from coming into this Country. They do not have
laws, however, concerning exporting items of cultural heritage
to other countries. That is the big difference.
Senator Cortez Masto. That is the point. Excuse me, I only
have so much but that is the point because this legislation is
very specific about elevating these artifacts. It is consistent
and not redundant with the law. It is very specific and we do
it all the time in making it very specific and identifying in
the law what we want to enforce and protect. In this particular
case, it is those cultural artifacts, correct?
Mr. Riley. Correct. I just want to add one little piece of
information. Who is the cultural expert here? Whenever you ask
that, it is the individual Pueblos, tribes and Nations who are
experts of their own culture rather than someone else who has
studied our culture. They are not experts.
Senator Cortez Masto. Thank you.
I know my time is running out. I have additional questions
as well. I can defer and wait.
Thank you.
The Chairman. I can pick up on your line of questioning
with Governor Riley.
You talked about how these cultural objects are difficult
to describe, publicly identify and so forth, because they are
sacred and confidential. I guess the question for collectors or
auction houses that have these artifacts and cultural items,
how do we make sure they are not unintentionally trafficking or
selling some of these items, not realizing the cultural
significance? How do we identify that and make sure we are
making them aware in a way that is open, transparent, fair and
sensitive?
Mr. Riley. Thank you for that question.
I think there have been incidences where children of
collectors have inherited the collections of their parents.
They, in turn, maybe do not have the same interest of
collecting and as a result, they want to dispose of these
somehow and put them up for auction.
I would think that would be considered unknowingly trying
to sell an item. We understand that. As I said before, I think
if we raise the awareness of these items possibly being
considered sacred items by various Pueblos, tribes and Nations,
to provide a means to reach out.
If they don't know, they could contact the local university
or other individuals who study these kinds of objects to at
least guide them in a direction. We, at the Pueblo Acoma, are
always open to such inquiries and have done that on behalf of
other Pueblos.
We have purchased a lot of items, knowing that it does not
contain all of our items of cultural patrimony, but we, in
turn, reach out to other sister Pueblos. On occasion, we get
approached and none of it is ours but we do closely communicate
with each other to provide that opportunity for someone else to
identify their items of cultural property and we return them.
I think the awareness this bill has produced could be, in
turn, perceived as being a way of those individuals who, in
their opinion, are not knowledgeable about selling these items,
there is always that opportunity to communicate with the local
tribes to really identify who is the rightful owner of that
cultural item.
The Chairman. Secretary Tahsuda, we have to find a way to
make improvements in IHS. That is what this legislation that
Senator Rounds has put forward is all about.
In your opinion, what can we do to start making concrete
improvements in the services IHS delivers?
Mr. Tahsuda. Chairman, that is not something that we handle
at the Bureau of Indian Affairs but certainly I think we are
all supportive of doing our jobs and delivering services to our
constituents better, Indian tribes and Indian people. However,
we can do that in a better way is what we are all aiming for.
The Chairman. Certainly, IHS is part of the HHS but it has
to be a huge concern to you because we are talking about health
care in Indian Country. That is why I am asking for your
opinion on what can be done?
Mr. Tahsuda. I think overall, the effort the President has
directed all the agencies to do to find better ways to
streamline decision making and to empower as further down the
line as you can.
I am very fortunate to work for Secretary Zinke. He brings
kind of a military mindset to this in which he repeatedly talks
to us about providing the tools to empower the soldiers on the
line to make the decisions they have to make in the immediate
moment. I think at the end of the day, that is what we can do.
What tools do we need or can we find better tools to do
that and can we empower the people on the line doing the job to
correctly do the job?
The Chairman. Thank you.
Vice Chairman Udall.
Senator Udall. Thank you, Mr. Chairman.
This question is to Ms. Fowler. It is obvious there needs
to be increased transparency and accountability within IHS. I
am concerned though that this bill, S. 465, would farm out
Congress' oversight and fiduciary obligations.
As I said in my opening statement, the entire Federal
Government has a trust responsibility to the tribes. This
includes the Inspector General's office, GAO and OMB. As I
understand it, many of these areas of study included in this
bill should already be tracked and accounted for.
These are pretty simple yes or no questions. Is the IHS
capable of providing this Committee with information on the
current and projected IHS user population by service area and
service unit?
Ms. Fowler. The Indian Health Service is able to provide
the current user population. We do not project user population
but we do project service population. We ought to be able to
provide that.
Senator Udall. Are you able to provide available medical
services offered at each IHS service unit and the most frequent
services they receive PRC requests for?
Ms. Fowler. Yes.
Senator Udall. The service's use of Buy Indian authority
and its progress implementing the recommendations of GAO 15-
588?
Ms. Fowler. Yes.
Senator Udall. Within the next 30 days, please provide that
information to the Committee, if you could.
Ms. Fowler. Certainly.
Senator Udall. The idea of taxpayer money going to private
companies to dig for information this Committee should be able
to get from Federal agencies already strikes me as wasteful and
duplicative. I think we can handle this in a much better
fashion.
Let me shift now to Mr. Tahsuda. In last year's overnight
field hearing on cultural patrimony, the Department of the
Interior testified it was going to hold listening sessions and
government-to-government consultations on international
repatriation issues, specifically at the White House Tribal
Nations Conference.
I sent a letter to the President in March urging him to
continue the tradition of holding the White House Tribal
Nations Conference. I have yet to receive a response to that
letter.
After Secretary Zinke testified before this Committee on
the Administration's priorities, I sent him questions for the
record and included a question about the future of the
conference. Again, I have yet to receive a response to those
questions nearly seven months after they were sent. In fact, I
was recently informed that the Committee has not received
answers to any member questions for QFR since April.
As the most senior political appointee in Indian Affairs
currently at Interior, do you agree direct interaction between
tribal leaders and senior government officials with the
decision-making authority is critically important?
Mr. Tahsuda. Thank you, Vice Chairman.
To answer your last question, yes, it is very important
that we have good communication. I am not sure about the status
of questions that you or any other member has sent. I would
say, as a former staff member here on the Hill and actually for
this Committee, I understand the importance for you to get
responses from us for information we may have that you do not.
That is my personal commitment to get you the information
that is helpful to you. We can look and see what the status is.
I apologize. Obviously, I do not answer for the Secretary but
if there are outstanding questions about testimony he gave
previously, I am happy to look into that and find out what the
status is. I would have to look into that.
Senator Udall. We have many from all members, both sides,
outstanding questions I think really need to be answered. I
hope you will convey that to the Secretary.
Thank you.
Mr. Tahsuda. Yes.
Senator Udall. Thank you, Mr. Chairman.
The Chairman. I agree that it is important we get the
responses.
Senator Cortez Masto.
Senator Cortez Masto. Thank you, Mr. Chairman.
Let me follow up with Mr. Tahsuda.
What role does the department have to protect the rights of
tribes to stop the illegal export of culturally important
artifacts? What role do you play?
Mr. Tahsuda. We have a number of agencies within the
department that play a role. I would say, in part, that is what
makes the answers a little complicated on how to improve it.
As the Vice Chairman mentioned, the NAGPRA committee has a
role in helping to identify objects of cultural patrimony under
that law. I cannot give you a comprehensive answer. If you
would like a more comprehensive answer or have specific
questions, I can answer that.
Senator Cortez Masto. My specific question is what is the
role? Are you there to help with the identifying repatriation
or not? I do not mean to be argumentative. I am just trying to
understand.
My understanding is your role is there to assist and help.
That is not happening and it is being put on hold right now. I
am just trying to understand what you believe your role is. It
doesn't sound like there is a specific answer to it or it is
too complex, or you don't know.
Mr. Tahsuda. I am sorry. Maybe I didn't understand your
question properly.
We do have a role. There have been some high-profile cases
in past years.
Senator Cortez Masto. Is the role to help stop the illegal
export of culturally important artifacts?
Mr. Tahsuda. We have a role in protecting those. The
question of the exportation and the fact there is not a law on
the books to assist us that we could enforce is a problem.
Senator Cortez Masto. The STOP Act would put the law on the
book to help you enforce it or help the enforcement of it. You
would support it?
Mr. Tahsuda. Yes, we support being able to protect these
very valuable and important parts of our tribal and national
history.
Senator Cortez Masto. That is why I am asking because the
STOP Act does that. It makes it very specific and gives you the
tools you need to continue to help support and protect those
artifacts. You would support it?
Mr. Tahsuda. I think you could say the concept we support.
We want to find an effective way to protect this but the actual
tools that are there are what I think not just us, but the
other departments involved in this overall effort, are trying
to identify and the GAO is trying to work through with us. We
want to have the right tools to do this the right way.
Senator Cortez Masto. Thank you.
Governor Riley, let me jump back quickly to our
conversation because I want to make something clear as well.
Indian art is economically important across the Country.
Buyers, collectors and gallery owners provide a boost in the
economy and directly benefit tribal artisans. Some folks have
said that the STOP Act would negatively impact Native artists
by deterring buyers from buying legitimate Indian arts and
crafts out of fear that it could be deemed an item of cultural
patrimony.
Governor, I am sure you have members of your tribe that
depend on the income generated from Indian arts and crafts
sales. Are you concerned about the impact the STOP Act could
have on Native artists' livelihoods?
Mr. Riley. No, I am not concerned about whether or not the
STOP Act would impede economic, I guess, commercialization of
items that were meant to be sold commercially. I think that is
just a fear being put out there publicly.
As artisans, I think that relationship already exists where
buyers and artisans continue to have that type of relationship.
Sometimes these are long term relationships. If there is a
change in the law and you are not violating it, that
relationship will continue.
Artisans will continue to produce arts for commercial sale.
However, they are very aware that certain items which they do
not make themselves and attempt to sell could be questionable.
I am of the opinion that the STOP Act would not inhibit those
artisans from continuing their work or continue their
livelihood.
Senator Cortez Masto. Thank you.
I notice I am just out of time. Thank you, Mr. Chairman.
The Chairman. I would like to thank the witnesses for being
here today. We appreciate it very much.
The hearing record will be open for two weeks and members
can submit questions for follow up. Secretary Tahsuda, it is
important that we work with you to get those responses.
Again, thanks to all our witnesses. We appreciate your
being here and providing testimony today.
The hearing is adjourned.
[Whereupon, at 4:16 p.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of John Molloy, President ATADA \1\
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\1\ ATADA, formerly known as the Antique Tribal Art Dealers
Association, 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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Mr. Chairman, my name is John Molloy and I am President of ATADA.
Our organization, formerly known as the Antique Tribal Art Dealers
Association, represents antique and contemporary art dealers, art
collectors, and private museums. I am taking this opportunity to share
the concerns of all ATADA members, especially the 52 who are
constituents of the Committee's members, with S. 1400, The STOP Act.
The revised Safeguard Tribal Objects of Patrimony Act of 2017
(S.1400, H.R.3211) (``STOP Act'') will not achieve its primary goal--
the return of important cultural objects to Native American tribes and
Native Hawaiian organizations--because the proposed legislation is
fatally flawed. The problem of loss of tribal cultural heritage will
not be solved by passing constitutionally suspect legislation or
creating a new, unwieldy, and expensive federal bureaucracy. It will be
solved on the community level, through education and the promotion of
cultural understanding.
ATADA, the primary organization for art dealers and collectors of
Native American art in the United States, has taken important steps to
formalize changes to accepted business practices (which most Native
American art dealers had already independently adopted), and began
intensive community educational work to build understanding and respect
for Native American concerns over the loss of cultural heritage. In
2016-2017, ATADA adopted bylaws forbidding trade in items in current
ceremonial use, \2\ established due diligence guidelines to protect
buyers and sellers, \3\ and initiated public education programs \4\ as
well as establishing a truly voluntary return program for lawfully
owned ceremonial objects that has already brought dozens of important
ceremonial items from collectors back to tribes in the last year. \5\
\6\
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\2\ ATADA Bylaws, Article X, Trade Practices, Ethics, And
Guarantees. https://www.atada.org/bylawspolicies/
\3\ ATADA Bylaws, Article XI, Due Diligence Guidelines. https://
www.atada.org/bylaws-policies/
\4\ ATADA Symposium, Understanding Cultural Property: A Path to
Healing Through Communication. May 22, 2017, Santa Fe, NM.
\5\ ATADA Bylaws, Article X, ATADA Guidelines Regarding the Trade
in Sacred Communal Items of Cultural Patrimony. https://www.atada.org/
bylaws-policies/
\6\ A Journey with Ceremonial Objects, https://
committeeforculturalpolicy.org/a-journey-with-ceremonialobjects/
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This entirely voluntary program was initiated by ATADA before any
federal proposal was suggested, and is the model from which the flawed
federal program in the 2017 STOP Act was conceived. Even vocal
proponents of the STOP Act have publicly acknowledged that ATADA's
Voluntary Returns Program will probably do more to bring sacred objects
back to tribes than any federal interdiction program. \7\
---------------------------------------------------------------------------
\7\ For example, the comments of Gregory Smith, speaking on a
panel, ``At the Forefront of Repatriation: New Policy and Impact Beyond
the United States,'' School for Advanced Research (SAR), April 19,
2017, https://sarweb.org/?2017iarcss_repatriation-p:past_events, Santa
Fe, New Mexico, and again at the ATADA Symposium, Understanding
Cultural Property: A Path to Healing Through Communication. May 22,
2017, Santa Fe, NM.
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II. The STOP Act: A Summary of Issues
The STOP Act does not identify what items would be blocked from
export. Tribes hold that identification of sacred items is proprietary
knowledge and may not be shared. Governor Riley of the Acoma Pueblo
made this fact crystal clear in his testimony to this Committee last
year when he stated: The cultural objects Acoma is attempting to
protect are difficult to fully describe and publicly identify because
of their sacred and confidential ceremonial use. The result is that the
STOP Act makes it illegal to export certain items without identifying
them, so a citizen has to guess whether his actions were legal or
illegal, which would violate the Fifth Amendment's due process clause
of the U.S. Constitution and create dangerous legal uncertainties for
private owners of a wide range of American Indian art and artifacts.
The STOP Act states that it is official U.S. government policy to
return ALL ``items affiliated with a Native American Culture'' to the
tribes, which would include commercial jewelry, ceramics and other
legal possessions.
The STOP Act will discourage the sale of all Indian art and
artifacts, generate consumer confusion that will damage legitimate art
dealers and tribal artisans, and create a bureaucratic nightmare for
the tribes and their collaborators. It will harm regional economies,
especially in Southwest. In New Mexico, for example, cultural tourism
accounts for approximately 10 percent of jobs and about the same
revenue as mining, a major state industry. Acoma Governor Kurt Riley
acknowledged in testimony submitted in regard to the earlier STOP Act,
that ``the vast majority of inventories held by dealers or collectors
are of no interest to the Pueblo,'' yet he proposes a pre-purchase
certification system for persons who wish to collect Indian art,
``establishing a method for collectors. . . to receive a referral to a
cultural representative of a tribe likely to be knowledgeable or aware
of an object the collector is considering purchasing.'' \8\
---------------------------------------------------------------------------
\8\ Written Testimony of Governor Kurt Riley, Pueblo of Acoma,
Before the Senate Committee on Indian Affairs Field Hearing on the
Theft, Illegal Possession, Sale, Transfer and Exportation of Tribal
Cultural Objects, Albuquerque, NM, October 18, 2016, p.8.
---------------------------------------------------------------------------
The STOP Act is unnecessary and redundant. ``Trafficking'' in
violation of NAGPRA or ARPA is already unlawful, and 18 U.S.C. 554
already prohibits export from the United States of any object contrary
to any law or regulation of the United States, while maintaining the
Due Process protections that are likely voided by enforcement of the
STOP Act.
ATADA's Voluntary Returns Program is a better, more effective
model, which has returned dozens of important ceremonial items to
tribes in its first year.
III. Background
It is the legitimate policy of the tribes that they, and no one
else, should determine which cultural objects are inalienable from
their communities, as this right is intrinsic to tribal sovereignty.
But many tribes also believe 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,
many tribes refuse to make information public that would enable
outsiders to know whether he or she possesses a ceremonial object
considered inalienable to the tribe.
Tribes also acknowledge that non-tribal members only possess a
fragmented understanding of sacred objects of Indian cultural heritage.
So, while some objects, such as certain ceramics and masks may be
deemed sacred to a tribe and therefore inalienable cultural property, a
nearly-identical ceramic or mask may not be considered sacred, and
therefore may be freely traded by tribal members and non-tribal members
alike. But still, the knowledge necessary to delineate between these
sacred and non-sacred object can remain a closely guarded secret and
inappropriate to publicize.
Tribal secrecy may be well justified as necessary for the health
and well-being of the tribe. But when enacting legislation that hinges
upon the definition of ``What is inalienable because it is sacred?''
and imposing severe penalties, the lack of specific, public information
about what makes an object inalienable is a prohibitive legal barrier
to both the exercise of due process and the STOP Act's goal to return
sacred objects. \9\
---------------------------------------------------------------------------
\9\ There is no question that certain items are regarded by tribes
as inalienable precisely because they are `sacred' objects. This
circumstance raises potential Establishment Clause issues with the STOP
Act. Should the Federal Government be involved in determining what is
`sacred' to any religion? The First Amendment's Establishment Clause
prohibits the government from making any law ``respecting an
establishment of religion,'' not only forbidding the government from
establishing an official religion, but also prohibiting government
actions that unduly favor one religion over another.
---------------------------------------------------------------------------
There is no question that certain items are regarded as inalienable
precisely because they are sacred to the tribal community. This
circumstance raises potential Establishment Clause issues with the STOP
Act. Should the Federal Government be involved in determining what is
`sacred' to any religion? It is accepted as a fundamental principle of
government in the U.S. that the Federal Government is a secular
government and does not affiliate with or advance a specific religion.
The information gaps about objects' cultural relevance and when
these objects entered the stream of commerce pose impossible
constitutional and practical challenges to the enforcement of the STOP
Act. The United States legal system is premised on the idea that a
citizen must have fair notice of our laws and an opportunity to be
heard. As the 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, violate the first essential of due process law.''
\10\
---------------------------------------------------------------------------
\10\ Connally v. General Const. Co., 269 U.S. 385, 391 (1926).
---------------------------------------------------------------------------
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. \11\ These
sacred items are also precisely the objects that many tribes say it is
impossible to identify or discuss publically according to tribal
customary laws. As such, notice of what items are claimed by the tribes
cannot be divulged to non-tribal owners. The lack of fair warning means
that a seizure or forfeiture of property would be based upon
information that cannot be disclosed, which would be a blatant
violation of due process of laws.
---------------------------------------------------------------------------
\11\ Native American Graves Protection and Repatriation Act, 25
U.S.C. 3001-3013, 3001(3)(c)-(d) (1990).
---------------------------------------------------------------------------
While a failure to provide for due process is a fatal flaw, the
STOP Act has other serious weaknesses. The STOP Act creates no
framework for administration or enforcement of tribal claims. It does
not provide for management of cultural objects, nor does it include a
permitting system for objects deemed lawful to export, nor does it
provide any funding. It provides no standard for identification of
items of cultural patrimony, such as a list or database of ceremonial
items. Nor does it set for any standards of evidence for tribal
claimants or means of appeal for the owners of disputed objects.
The STOP Act's suggested voluntary returns program also adopts a
grossly overbroad definition of ``cultural heritage.'' It establishes a
federal policy of encouraging the return of countless legally and
rightfully owned objects purely because they have some association with
Native American culture. Not only does this infringe upon traditional
notions of private property rights, it is also expected to overwhelm
governmental and tribal resources, as many objects may be returned that
Native American tribes did not wish to repatriate in the first place.
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 publicly traded without tribal objections as ``unassociated
funerary objects'' under NAGPRA, \12\ as there are no clear legal
definitions. Some museums return multitudes of very common objects.
Other museums continue to display items that the museums themselves
catalog as `ceremonial' and resist returning them as not justified
under NAGPRA. There simply is no standard under NAGPRA.
---------------------------------------------------------------------------
\12\ See, for example, the 2007 NAGPRA repatriation of 10,857
cultural items in the control of the Burke Museum, including
groundstone tools, stone beads, stone carvings, knives, mortars,
pestles, pipes, stone chisels, sculptures, and pendants and one bag
containing over 200 seeds. Notice of Intent to Repatriate Cultural
Items: Thomas Burke Memorial State Museum, University of Washington,
Seattle WA 72 Fed. Reg. 29,174 (May 24, 2007).
---------------------------------------------------------------------------
Exacerbating the existing lack of definition, the voluntary returns
program outlined in the STOP Act encourages the return of any and all
objects to tribes, regardless of whether they are covered by NAGPRA or
ARPA, calling upon tribes to consult and accept anything that is
returned. The STOP Act's call for return of ``items affiliated with a
Native American Culture'' would include everything sold by Native
American artisans in the past--and today.
Under ARPA, virtually everything made more than 100 years ago is
covered by the term ``archaeological resource,'' \13\ but only the age
and original location of an object makes it lawful or unlawful to own.
Moreover, ARPA's rolling date continually expands the number of items
covered under it. Sacred associations are irrelevant under ARPA.
---------------------------------------------------------------------------
\13\ 16 U.S.C. 470bb(1).
---------------------------------------------------------------------------
The STOP Act's voluntary returns program taints both the antique
and contemporary Indian 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 of 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. The recent experience of Alaska Natives, in which sales of
Native-carved walrus ivory dropped by as much as 40 percent following
the elephant ivory ban, offer ample evidence of the significance of the
threat the STOP Act poses to Native American artisans and many tribal
economies. \14\
---------------------------------------------------------------------------
\14\ Zachariah Hughes, ``Ivory Ban Hurts Alaska Natives Who Legally
Carve Walrus Tusks,'' http://www.npr.org/2016/11/24/503036303/ivory-
ban-hurts-native-alaskans-who-legally-carve-walrustusks.
---------------------------------------------------------------------------
But the damage to native artisans and the legitimate markets
inflicted by the the U.S. policy outlined in the voluntary returns
program extends beyond mere reputational harm- it could also open the
federal government to due process claims of taking private property
without just compensation. Instituting a policy that encourages the
return of all Native American objects could severely diminish the fair
market value of any Native American object, and make such objects
unsellable, as buyers and sellers of Native American objects may become
fearful of the repercussions should they not abide by the United States
policy. Today, a ``good'' provenance can make the difference between a
valuable object and one of little worth, or that cannot be sold at all.
By instituting a policy that calls for the return of all objects with a
Native American provenance, the United States government could make all
objects of Native American origin unsellable and therefore commercially
worthless.
IV. The Distribution and Circulation of Native American Artifacts
There are millions of Native American ``cultural objects'' in
private ownership today; but 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.
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. \15\ 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. \16\ 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.'' \17\ During the same years and throughout the early 20th
century, private collectors purchased from the same sources that
supplied museum collectors, with the 1880s and 1890s being referred to
as ``the heyday of the commercial pothunter.'' \18\
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\15\ Edwin Wade et al., America's Great Lost Expedition: The Thomas
Keam Collection of Hopi Pottery from the Second Hemenway Expedition,
1890-1894, 9, (1980) (See also pages 18, 25, 26, 39) and Edwin Wade et
al., Historic Hopi Ceramics 84 (1981).
\16\ Edwin Wade et al., America's Great Lost Expedition: The Thomas
Keam Collection of Hopi Pottery from the Second Hemenway Expedition,
1890-1894.
\17\ Id. at 15
\18\ Annual Report of Jesse L. Nusbaum, Department Archeologist and
Superintendent of Mesa Verde National Park to the Secretary of the
Interior, Dep't of Interior, 6-7 (1929).
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Tens of thousands of cultural objects have entered the stream of
commerce decades before the first U.S. cultural property legislation
was enacted, the American Antiquities Act of 1906 (Antiquities Act).
\19\ Artifacts without provenience were dug up and sold to good faith
purchasers long after enactment of the Antiquities Act in 1906.
---------------------------------------------------------------------------
\19\ American Antiquities Act of 1906, 16 U.S.C. 431-433. The
Antiquities Act of 1906's undefined use of the term ``object of
antiquity'' was held to be unconstitutionally vague and legally
unenforceable in the Ninth Circuit, which includes Arizona, where the
Navajo, Hopi, and Zuni lands are located. U.S. v. Diaz, 499 F.2d 113,
114 (9th Cir. 1974) (discussed infra).
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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-five years, awareness of tribal concerns and the
harmful destruction of archaeological sites has changed everything, as
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 professional organizations
such as ATADA, to work directly with tribal representatives to find
solutions that truly serve Native American interests.
STOP Act II is redundant legislation, already covered under U.S. law
In fact, the increase in NAGPRA penalties for illegal export in the
STOP Act is not a new idea. Proponents of the STOP Act ignore laws
already on the books that completely meet their needs. Existing law, 18
U.S.C. 554(a), already provides that:
Whoever fraudulently or knowingly exports or sends from the
United States, or attempts to export or send from the United
States, any merchandise, article, or object contrary to any law
or regulation of the United States or receives, conceals, buys,
sells, or in any manner facilitates the transportation,
concealment, or sale of such merchandise, article or object,
prior to exportation, knowing the same to be intended for
exportation contrary to any law or regulation of the United
States, shall be fined under this title, imprisoned not more
than 10 years, or both. \20\
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\20\ 18 U.S.C. 554(a) (emphasis added).
This existing law applies the same scienter as the STOP Act
(``knowingly''), covers objects protected by NAGPRA and ARPA (``object
contrary to any law or regulation of the United States'') \21\ and
already employs the same heightened penalty that STOP seeks to impose
(fine or imprisonment not to exceed 10 years). This is precisely the
goal that STOP was meant to achieve. \22\
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\21\ As previously discussed, nothing in the language of ARPA or
NAGPRA suggests that ``trafficking'' or ``transport'' of covered items
does not include export.
\22\ The STOP Act's desire to impose a 10-year jail sentence for
violations of less than $1 value, is grossly disproportionate to the
offense. While proportionality is often rejected as the basis for a
claim of excessive fines or cruel and unusual punishments, it seems
impossible to conceive that the Federal Government would wish to impose
such harsh penalties. Not to mention that the Federal Government is
inviting a bureaucratic nightmare by failing to provide a minimum value
threshold for such violations or any other such procedures to protect
against selective enforcement of its own overly broad legislation.
---------------------------------------------------------------------------
The penalty for violating any federal law has a long legal history
of requiring due process. STOP will shift the enforcement and penalty
to the unique nature of cultural property enforcement where burden of
proof is shifted from the government to the importer or exporter.
In contrast to 18 U.S.C. 554(a), the existing law, the STOP Act
represents a step further in advocating enforcement that rejects the
fundamental principles of Due Process.
The STOP Act's Export Prohibition Violates Due Process Because Its
Drafting Does Not Provide Adequate Notice or Procedures for an
Individual to Be Heard When Their Property is Being Deprived
Before an individual is deprived of their property right, Due
Process requires that the Government grant an individual both (1)
Notice and (2) Opportunity to be heard. \23\ But the STOP Act provides
no such notice of prohibited conduct or procedures controlling the
export controls of Native American-affiliated objects. As a result, we
must assume that the default statutory standards apply. \24\
---------------------------------------------------------------------------
\23\ Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314
(1950).
\24\ 19 U.S.C. 1600.
---------------------------------------------------------------------------
The STOP Act's definitions fail to provide any sort of notice of what
conduct is prohibited because it fails to provide any clarity
as to what is considered ``sacred.''
The STOP Act's export prohibition fails to adequately clarify for
both private individuals and CBP agents of what objects are ``sacred''
and therefore prohibited from export and fails to provide any guidance
as to how the definitions and export controls can be enforced without
becoming arbitrary and discriminatory.
If a statute is overbroad, then it is unconstitutionally void for
vagueness and therefore a denial of due process because it fails to
provide sufficient notice of the prohibited conduct: ``[T]he void-for-
vagueness doctrine requires that a penal statute define the criminal
offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement.'' \25\
---------------------------------------------------------------------------
\25\ Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858,
75 L.Ed.2d 903 (1983).
---------------------------------------------------------------------------
The STOP Act and its underlying legislation fail to provide any
clarification to differentiate between ceremonial and non-ceremonial
objects, and would presumably leave the definition of ``Native American
cultural items'' up to the U.S. Customs and Border Protection (CBP) and
most likely tribal consultants for each and every Native American-
affiliated object sought to be exported.
There is a long history of finding broad definitions of ``cultural
heritage'' and ``antiquity'' unconstitutionally vague. The Ninth
Circuit found the Antiquities Act of 1906's definition of ``antiquity''
to be unconstitutionally vague because ``the word ``antiquity'' can
have reference not only to the age of an object but also to the use for
which the object was made and to which it was put, subjects not likely
to be of common knowledge.'' \26\ The complexity of determining
protected ``ceremonial objects'' under NAGPRA goes beyond a mere
minimum age threshold like ARPA and many of international legislation.
\27\ Instead, in some tribes, objects of antiquity include objects that
are no more than three or four years old. \28\
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\26\ United States v. Diaz, 499 F.2d 113, 115 (9th Cir. 1974).
\27\ For example, ARPA, Egypt and Afghanistan protect objects
greater than 100 years old. 16 U.S.C. 470bb; Egyptian Law on the
Protection of Antiquities, art. 1 (1983); Law of May 20, 2004 (Law on
the Preservation of the Historical and Cultural Heritage) art. 2(a)
(Afghanistan).
\28\ United States v. Diaz, 499 F.2d 113, 114 (9th Cir. 1974)
---------------------------------------------------------------------------
NAGPRA's definition of ``cultural item'' has been met by many
criticisms as unconstitutionally vague in its twenty-seven-year
history. \29\ To determine what is considered a ``ceremonial object''
under NAGPRA, there is still no standard criteria among the tribes and/
or museums that could provide the public or the CBP with any guidance
about what should be repatriated.
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\29\ 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.'', Deborah F. Buckman,,
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), 173 A.L.R. FED. 765 (originally published 2001).
---------------------------------------------------------------------------
Outlining a list of protected objects may provide a more fair and
reasonable notice to individuals, but would be nearly impossible to
employ under the STOP Act. For example, the Convention on Cultural
Property Implementation Act (CPIA) requires the Secretary of the
Department of the Treasury, upon entering into an agreement with a
State Party or emergency action, to publish a descriptive list
designating categories of archaeological or ethnological material
subject to import restrictions under a specific agreement, so long as
each listing is ``sufficiently specific and precise to ensure that:
(1) the import restrictions under section 2606 of this title
are applied only to the archaeological and ethnological
material covered by the agreement or emergency action; and (2)
fair notice is given to importers and other persons as to what
material may be subject to such restrictions. \30\
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\30\ 19 U.S.C. 2604 (emphasis added).
But the closely guarded nature of many Native American sacred
traditions prevent the creation of a similar list. Although a few
(mostly northeastern U.S.) tribes have created list of items that they
wish to have 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 cannot and will not reveal such
information, as the only persons with a specific religious authority
with the tribal community are permitted to possess such knowledge. As
such, this information is not appropriate to share with anyone outside
the tribes, including academic committees, the public, and law
enforcement. \31\ It is their right and choice to withhold information
that is not proper to share with outsiders, but this right does not
diminish the United States Constitution's requirement that individuals
receive sufficient fair notice and due process when they may be
deprived of their private property.
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\31\ Governor for the Pueblo of Acoma Kurt Riley notes that ``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.'' The Theft, Illegal
Possession, Sale, Transfer and Export of Tribal Cultural Items: Field
Hearing Before the S. Comm. on Indian Affairs, 114th Cong. 27, 29 (Oct.
18, 2016) (Statement of Hon. Kurt Riley, governor, Pueblo of Acoma).
---------------------------------------------------------------------------
Similarly, the solution to ``ask the tribes'' or provide a tribal
hotline, \32\ though a facially reasonable proposal, would be equally
unfeasible in follow through. A hotline would impose an impossible
burden on tribal organizations to (expeditiously) consult on
potentially hundreds of thousands of Native American objects in private
circulation. And if the exporter or CBP wishes to consult on a
particular object, which of the 567 federally registered tribes should
they call? Should they instead call the NAGPRA committee designated
under NAGPRA, \33\ even though the committee does not have authority
under NAGPRA and nothing is provided for such consultation in the
statute? Or should they consult the ``Tribal Working Group''
established in STOP Act's other provisions? \34\ Ultimately, it is
unclear whether anyone would even be able to obtain the information
necessary to understand whether the object is sacred or not, even after
determining who the proper contact should be.
---------------------------------------------------------------------------
\32\ As suggested by Ann Rogers, Esq., when speaking at CLE
International Visual Arts & the Law Conference, Santa Fe, NM July 28-
29, 2016.
\33\ 25 U.S.C. 3006(b).
\34\ Safeguard Tribal Objects of Patrimony Act of 2017, H.R.3211,
115th Cong. 5, (2017).
---------------------------------------------------------------------------
Under the circumstances described above, one can only conclude that
the STOP Act 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.
STOP Act II unconstitutionally violates Due Process because it provides
no procedures for an individual's opportunity to be heard
Due process requires precision and guidance so that those enforcing
the law do not act in an arbitrary and discriminatory way. \35\ The
STOP Act presumably only permits an opportunity to be heard after
seizure. There is nothing in the STOP Act permitting a preemptive
certification process that would alleviate the administrative burden on
the CBP and prevent uninformed seizures of individuals' private
property.
---------------------------------------------------------------------------
\35\ See United States v. Williams, 553 U.S. 285, 306 (2008).
---------------------------------------------------------------------------
Furthermore, the STOP Act fails to provide any guidelines or
forethought as to either the time or manner of hearing for exporters to
dispute seizure of their Native Americanaffiliated property. STOP sets
forth no potential procedures to control administration of STOP's
export prohibitions such as (1) a maximum holding period for the seized
object, which was suggested in the previous incarnation of the Act;
\36\ (2) a licensing or certification system like the CPIA; (3) any
standards of evidence (4) a list of actual items that are likely
subject to export restrictions. All of these fail to give any advance
notice of an opportunity to be heard so they may proactively avoid
seizure or argue against seizure of their property.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
The STOP Act will not pass constitutional muster, nor can it reasonably
be administered. ATADA is committed to working with tribes for
better solutions
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 and across the country. The STOP Act
is ill-conceived legislation that will achieve neither goal and it
should not be passed into law.
ATADA is working diligently with tribal officials 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.
I would like to thank the Committee on behalf of the over fifty
ATADA members in the states that Committee members represent for the
opportunity to present testimony. ATADA requests the Committee to focus
on and to carefully consider all the concerns raised regarding the
impact of this legislation before proceeding further.
______
Prepared Statement of Tracy Toulou, Director, Office of Tribal Justice,
U.S. Department of Justice
The Department of Justice appreciates the opportunity to submit a
written statement regarding S. 1400, the Safeguarding Tribal Objects of
Patrimony Act of 2017 (STOP Act), and the Department's efforts to
combat these activities and protect Native American cultural resources.
We strongly support the goal of the legislation, which is stopping
the export of sacred Native American items, and increasing penalties
for stealing and illegally trafficking tribal cultural patrimony. The
vandalism, theft, and looting of Native American relics and artifacts
is unfortunately not uncommon. Driving this in part is a lucrative
market. Individuals in the United States and abroad are often willing
to pay substantial amounts of money for objects like spiritual
headdresses, sacred funeral objects, and sometimes even human remains.
Since 2013, there have been at least six auctions of Native American
cultural patrimony in France alone. Several U.S. tribes, including the
Apache, Hopi, Navajo, and Acoma Pueblo, have appealed to the U.S.
Government, French authorities, and the auction houses themselves to
delay the sales of potentially significant tribal patrimony so that a
thorough consultation with tribal authorities and experts might
determine the provenance of specific items. To date, these efforts have
been largely unsuccessful. One reason for this is the fact that auction
houses typically publish the catalogue of items only a few weeks in
advance of the auction, leaving little time for potentially interested
parties and U.S. government agencies to identify specific objects of
concern and engage in further inquiries about the objects.
Additionally, efforts by tribes to stop the auctions through litigation
in French courts have not succeeded as neither tribes nor their
representatives have been able to gain standing to bring a challenge.
In an effort to curb these activities, the STOP Act would:
1. Increase the penalties (from a maximum of five years to a
maximum of 10 years) for criminal violations of the Native
American Graves Protection and Repatriation Act (NAGPRA);
2. Explicitly prohibit the export of Native American items
``obtained in violation'' of NAGPRA, the Archaeological
Resources Protection Act (ARPA), and the Antiquities Act;
3. Direct the Secretaries of Interior and State to designate
liaisons to facilitate the voluntary return of cultural objects
to the tribe or Native Hawaiian organization with a ``likely
cultural affiliation'' and to provide trainings and workshops
to assist in that facilitation, including the use of third-
party experts; and
4. Direct the Secretary [of the Interior] to convene a tribal
working group consisting of tribes and Native Hawaiian
organizations to advise the federal government on the return
of, elimination of illegal commerce in, and repatriation of
tangible cultural heritage.
We believe that legislation aimed at stopping the export of sacred
Native American items can be a useful tool in curbing the sale of these
items abroad so that they can be returned to tribes. For example, this
legislation criminalizes knowing ``export or otherwise transport'' of
Native American cultural items (defined by reference to existing
definitions in NAGPRA, ARPA, and the Antiquities Act) that were
``obtained in violation of'' those statutes. Under current law, NAGPRA
and ARPA both prohibit the ``transport'' of resources obtained in
violation of those laws and effectively prohibit the export of items
obtained in violation of NAGPRA. \1\ Other federal statutes also
provide penalties for exporting objects obtained in violation of other
criminal statutes and the criminal provisions of ARPA may apply to some
objects obtained in violation of NAGPRA. While this bill would provide
helpful clarification that the export of all items obtained in
violation of NAGPRA and ARPA is prohibited, it may not prohibit any
export or transfer of Native American cultural items that is not
already prohibited by other statutes. It is possible that with an
explicit export control, the United States could more easily invoke
Article 9 of the 1970 UNESCO Convention on the Means of Prohibiting and
Preventing the Illicit Import, Export and Transfer of Ownership of
Cultural Property to seek assistance from other States Parties (e.g.,
France), including the control of imports and international commerce in
Native American cultural objects, thus opening up potential legal
pathways for their recovery and repatriation should such objects be
discovered at auction or subject to other commercial activity. However,
we have concerns that, as currently drafted, the bill would not
accomplish the broader goal of curbing the sale of tribal cultural
heritage abroad.
---------------------------------------------------------------------------
\1\ ARPA prohibits the trafficking in ``foreign commerce'' of
resources obtained in violation of state and local law, but does not
reference ``foreign commerce'' with respect to its prohibition on the
trafficking of archeological resources excavated or removed from
federal lands in violation of ARPA's provisions or other federal law.
See 16 U.S.C. 470ee(b), (c). Instead, the trafficking provision
applies to items ``transport[ed]'' if the resource was removed from
federal lands in violation of ARPA. Id. 470ee(b). Similarly, NAGPRA
prohibits the knowing ``transport[] for sale or profit'' of Native
American human remains and cultural items. 18 U.S.C. 1170(a), (b).
---------------------------------------------------------------------------
While penalty increases might seem like an effective deterrent, we
do not feel that insufficient penalties are the root of the issue and
we would note that five-year penalties are standard for most property
crimes. The persons who are engaged in these activities know the
loopholes and insufficiencies in the existing statutes and they know
how to use those loopholes to avoid prosecution. Tightening up the
language in the existing statutes would likely have more effect to curb
the illegal trade than stronger penalties.
Under the existing statutes, it is often difficult to know whether
items were ``obtained in violation'' of NAGPRA and ARPA. Prior to the
enactment of the existing statutes, these items were obtained, traded,
bought, and sold legally and the market is flooded with items. It is
difficult to distinguish an illegally obtained object from a legally
obtained object, so without knowledge of how the item in question was
obtained it is difficult to prosecute violations. It is also difficult
to prove that the items were removed from public or tribal lands as
opposed to other lands (as required by ARPA), and that the objects at
issue meet the respective definitions of archaeological resource (as
required by ARPA to be over 100 years old) or qualify as sacred objects
or objects of cultural patrimony (as required by NAGPRA). Additionally,
some courts have found that objects removed from federal or tribal land
prior to the date of enactment of the applicable statute are not
subject to the statutes' requirements. One way to expand the impact of
the bill, other than to amend the underlying statutes to address
burden-of-proof issues, would be to additionally prohibit the export of
items obtained in violation of tribal cultural property laws (similar
to the Lacey Act), some of which may go beyond the protections of
NAGPRA and ARPA. Additionally, the legislation could be expanded to
prohibit the export of goods embezzled from tribes in violation of 18
U.S.C. 1163.
Additionally, as drafted, we note that the bill requires a
``knowing'' standard for criminal prosecution, which could be
interpreted to require that one must know that the item was obtained in
violation of the specified statutes. This would make prosecutions very
difficult. Instead, we would recommend that the provision be revised to
read, ``It shall be unlawful for any person to export or otherwise
transport from the United States any Native American cultural object
knowing that it was obtained unlawfully.''
We also note that the bill provides solely criminal penalties for
violations of the export prohibition. We would recommend that it be
expanded to include a seizure and forfeiture provision, to facilitate
the return of the items to the tribes to which they belong.
Lastly, we recommend that the legislation also provide for
protection from disclosure (e.g. FOIA exemption) of information
supplied by tribal authorities for purposes of law enforcement, for
training and workshops, to obtain Federal assistance with repatriation,
or for purposes of the development or implementation of rules and
regulations.
Perhaps a more effective way to address the problem would be to
prohibit the export of all objects of Native American cultural heritage
(categories of which could be identified in the statute or created
through a separate administrative process) without a permit or
authorization and provide for an agency such as the Department of
Homeland Security or the Department of the Interior to implement a
permit program, in consultation with tribes and interagency
participation. Such a scheme would not reference violations of NAGPRA
or ARPA, but would be a standalone program similar to that established
by New Zealand, Australia, and Canada. See also 50 C.F.R. pt. 22 (eagle
feather permitting scheme regulated by Interior). This approach would
also greatly simplify publicizing this prohibition with domestic and
foreign audiences. This permit system could also be implemented by a
commission, established by the Department of the Interior in
consultation with the Department of Justice, which would develop
regulations by which the commission would issue permits for the export
of Native American cultural heritage objects. Commission membership
could include representatives of federally recognized tribes and
individuals with an expertise in Native American culture, archaeology,
and legal matters related to the trafficking of cultural items.
The permit process would regulate, and in most cases prohibit, the
export of Native American cultural items. Additional criminal penalties
(which generally require some level of mens rea) would only apply to
knowing exports of (or attempts to export) such items without a permit.
Thus, an individual would only be subject to criminal sanctions if s/he
knowingly attempted to avoid the permitting process.
The Department of Justice supports 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 for the opportunity
to provide input on S. 1400, the Safeguard Tribal Objects of Patrimony
Act of 2017.
______
Prepared Statement of Peter K. Tompa, Executive Director, Global
Heritage Alliance
Mr. Chairman, my name is Peter Tompa. I am testifying on behalf of
the Global Heritage Alliance (GHA). \1\ The GHA's mission is to foster
appreciation of ancient and indigenous cultures and the preservation of
archaeological and ethnographic artifacts for the education of the
American public.
---------------------------------------------------------------------------
\1\ For more about GHA, see its website, http://global-
heritage.org/
---------------------------------------------------------------------------
The GHA wishes to express a number of concerns with this well-
meaning legislation, whose goals and objectives we share. As currently
written, STOP will fail to achieve these goals. At the same time, it
will have significant negative consequences for the legitimate trade in
Native American artifacts, undercutting both its avowed purpose and
threatening an individual's right to due process. Nevertheless, the GHA
stands willing to work with the bill's sponsors to ensure the bill
accounts for our concerns.
If History is any Guide, the STOP Act Will Encourage Customs to Shift
the Burden of Proof Administratively on to the Exporter to
Demonstrate that the Property was Lawfully Removed from Federal
or Indian Lands
STOP builds on the Archaeological Resources Protection Act (ARPA),
16 U.S.C. 470aa-470mm; Public Law 96-95 and The Native American Graves
Protection and Repatriation Act (NAGPRA), Pub. L. 101-601, 25 U.S.C.
3001 et seq. ARPA and NAGPRA place the burden of proof on the federal
government to prove that an individual was aware of the illegal nature
of the underlying crime. ARPA and NAGPRA also require the government to
prove the defendant was aware of the facts and circumstances that
constitute the crime. In some circuits, it means that the government
must prove the defendant knew the item was an archeological resource
that was illegally excavated. This presents a significant challenge to
the government, since it must prove that the current possessor knew of
the illegal conduct. \2\
---------------------------------------------------------------------------
\2\ The Theft, Illegal Possession, Sale, Transfer and Export of
Tribal Cultural Items: Field Hearing Before the S. Comm. on Indian
Affairs, 114th Cong. 12 (Oct. 18, 2016) (Statement of Tracy Toulou,
Director of Tribal Justice, U.S. Department of Justice).
---------------------------------------------------------------------------
The same considerations apply to civil forfeitures made pursuant to
these statutes. Requiring the government to prove the elements of its
case under the preponderance of the evidence standard applicable to
civil forfeitures provides property owners with protection from
government seizure of property whose origin is unknown. \3\ Given the
hundreds of thousands of items that are not in violation of ARPA or
NAGPRA but lack documentation, this is a significant protection to
collectors and small businesses that deal in Native American artifacts.
---------------------------------------------------------------------------
\3\ Civil forfeitures under ARPA and NAGPRA should be governed by
the provisions of the Civil Asset Forfeiture Reform Act of 2000, which
also places the burden of proof on the government. 18 U.S.C. 983(c).
---------------------------------------------------------------------------
However, current enforcement of another ``cultural property''
statute, the Convention on Cultural Property Implementation Act, 19
U.S.C. 2601 et seq. (CPIA), should raise red flags about how the
STOP Act may be enforced in practice. The CPIA authorizes the
imposition of import restrictions on ``designated'' archaeological and
ethnographic objects illegally removed from their country of ``first
discovery'' after the effective date of the restrictions. 19 U.S.C.
2606. The CPIA explicitly places the burden of proof on the government
to make out each of these elements. 19 U.S.C. 2610. Unfortunately,
despite the CPIA's plain meaning, implementing regulations place the
burden of proof on the importer, not the government, to prove the
negative, i.e., that the object was exported from its country of first
discovery before the date import restrictions were imposed. Given the
modest value of most imported cultural goods and the high cost of legal
services, in practice this usually means that the importer defaults and
the government is able to forfeit the property without a fight. The
implementing regulations thus make it easy for the government to
prevail over collectors and small businesses, wrongfully denying them
the protections Congress intended.
If STOP becomes law, regulatory authorities will have a similar
incentive to ensure whatever the legislative intent, the burden of
proof is placed on the individual, not the government. The problem is
that prosecutors will have a difficult time proving that items are
stolen, ``and from where they might have been taken.'' \4\ With trade
of Native American objects active since the nineteenth Century, the
absence of provenance information for the vast majority of objects, and
the STOP Bill's all-inclusive definition of ``cultural objects,'' it
would be almost impossible for U.S. Customs and Border Protection (CBP)
to expeditiously decide whether an object can be exported or not. As a
result, CBP may require exporters to make certain evidentiary showings
to demonstrate that their object is not stolen. In other words, with no
procedures in place, there is nothing stopping the CBP from employing a
similar burden-shifting mechanism to enforcement of the STOP Act. And
like the challenges facing importers under the CPIA, it is almost
impossible to prove (or disprove) that a Native American-affiliated
object was found on private lands, federal lands or tribal lands.
---------------------------------------------------------------------------
\4\ The Theft, Illegal Possession, Sale, Transfer and Export of
Tribal Cultural Items: Field Hearing Before the S. Comm. on Indian
Affairs, 114th Cong. 24 (Oct. 18, 2016) (Statement of Cheryl Andrews-
Maltais, Senior Advisor to the Assistant Secretary-Indian Affairs, U.S.
Department of the Interior).
---------------------------------------------------------------------------
Even worse than the CPIA, which incorporates only time and location
considerations, the STOP Act adds the challenge of evaluating whether
the object is ``sacred,'' a fatal flaw to providing fair notice to the
individual that their property may be subject to export restrictions.
As part of an individual's opportunity to be heard, this could place an
even greater burden on the individual to demonstrate to CBP that an
object does not fit within STOP Act's definitions of ``Native American
cultural heritage,'' an even more burdensome requirement than that
placed on importers under the CPIA.
The STOP Act's Vague Definitions and Procedures will Lead to Selective
Enforcement of the Export Prohibitions
As a result of the lack of fair notice to both the CBP and
individuals, the CBP will likely be tasked with enforcing legislation
where they have no means of carrying out informed and uniform
enforcement. Where inherently vague statutory language permits
selective law enforcement, there is denial of due process. \5\ In
striking down a flag desecration statute in Smith v. Goguen, the
Supreme Court noted that flag desecration statutes are often void for
lack of notice because these statutes fail to acknowledge that ``what
is contemptuous to one man may be a work of art to another.'' \6\
Similarly, the STOP Act fails to distinguish that ``what is ceremonial
to one tribe may be a work of art to another.''
---------------------------------------------------------------------------
\5\ Smith v. Goguen, 415 U.S. 566, 576 (1974) (finding that a
Massachusetts flag desecration statute prohibiting ``contemptuous''
treatment of the U.S. flag was unconstitutionally vague and overly
broad because it failed to draw reasonably clear lines between the
kinds of nonceremonial treatment of the flag that are criminal and
those that are not.)
\6\ Goguen, 415 U.S. at 574.
---------------------------------------------------------------------------
Even if Native American tribes do become involved in defining what
is ``sacred'' and therefore unexportable, interpretations will likely
be incongruent and lead to disparate results depending on which tribe
is contacted or the level of the tribal liaison's expertise. For
example, the Antique Tribal Art Dealers Association (``ATADA'') has a
policy that attempts to return certain objects to Native American
tribes. In implementing that policy, ATADA has conferred with
designated tribal cultural heritage experts. In this process, it has
happened that only an expert within a tribe could identify one of
several similar objects as being important to the tribe, while the non-
tribal layperson, although very experienced, could not have made the
determination.
The bottom line is that the legislation as currently drafted,
although seeking worthy objectives, erodes individual due process
rights by encouraging Customs to reverse the burden of proof, something
that will inevitably result in an uncompensated taking. Such abuses may
well be unavoidable under the STOP Act given the unique challenges that
the STOP Act will place upon law enforcement. Governor Kurt Riley of
the Acoma Pueblo aptly summed up the problem before this Committee last
year when he stated: The cultural objects the Acoma is attempting to
protect are difficult to fully describe and publicly identify because
of the sacred and confidential ceremonial use.
Given the task of protecting a few secret and undefined items in
the midst of a vastly greater number of legal items with no provenance,
there can be little doubt that the enforcement result will mirror CPIA
import restrictions that reverse the burden of proof. Such a state of
affairs will violate Due Process and threaten the legality and value of
significant numbers of legal items without providing significant,
effective protection to sacred items.
Conclusion
In summary, the GHA asks the Committee to address these real and
valid concerns as part of the legislative process. As proposed, the
legislation threatens uncompensated takings without offering a clear
path to achieve the legislation's stated objectives. Allowing law
enforcement to shift the burden of proof is unfair to owners of legal
objects. Moreover, there is a real danger that the law will become
unenforceable. By treating so many objects as potentially tainted,
federal authorities will be unable to provide comprehensive or
consistent enforcement and are likely to miss the most important
illegal objects. In addition, a presumption of guilt combined with the
difficulty of proving an object is legal will drive legitimate
participants out of the market, reduce transparency, and harm all
legitimate trade, and the cultural understanding it brings.
______
Prepared Statement of Hon. Mark N. Fox, Chairman, Mandan, Hidatsa and
Arikara Nation of the Fort Berthold Reservation
Introduction
Chairman Hoeven, Vice Chairman Udall and Members of the Senate
Committee on Indian Affairs, the Mandan, Hidatsa and Arikara Nation
(MHA Nation) appreciates the opportunity to provide this testimony on
the following bills:
S. 1870, the ``Securing Urgent Resources Vital to Indian
Victim Empowerment Act'' (SURVIVE Act);
S. 1942, ``Savanna's Act;'' and
S. 1953, the ``Tribal Law and Order Reauthorization and
Amendments Act of 2017.''
As you know, the MHA Nation is working to ensure long-term benefits
from the significant oil and gas development on our Fort Berthold
Indian Reservation which sits in the middle of the Bakken Formation.
However, our communities have also experienced many social impacts from
this rapid development on and near our Reservation. Impacts include
high rates of traffic accidents on our rural roads, increased
incidences of violent crime, and the presence of organized crime such
as drug and human trafficking. Our communities are now facing a crisis
that stems from drug addiction and violence.
The increased populations and related social issues are straining
our tribal justice infrastructure. For example, from 2013 to 2015, the
MHA Nation District Court saw its caseload grow by over 2,000 percent,
with total case numbers in 2015 similar to that of Bismarck, which has
a population of around 67,000 people. Our total population is less than
one-tenth that with 6,300 people over our one million-acre Reservation.
We are managing this caseload with no influx of resources to increase
capacity in our tribal courts or to investigate increased cases of sex
trafficking. Our members repeatedly report feeling unsafe in their own
homes, and many of our citizens have witnessed firsthand the terrifying
realities of sex trafficking.
Drug trafficking and addiction on our Reservations have also
reached epidemic proportions. Though it is a general medical clinic,
our Elbowoods Memorial Health Center uses 90 percent of its contract
health budget for drug-related health care issues. In addition, 90
percent of the drug and alcohol related cases are beyond the scope of
our local drug treatment center's services and must be referred to
other facilities. The MHA Nation has taken a strong stand in support of
our citizens by beginning to build a drug treatment facility in
Bismarck, but we must ensure that our current facilities and staff on
the Reservation are supported in their lifebuilding work to combat
addiction.
The effects that addiction and sexual violence are having on our
children underscore the long-term impacts of this current crisis. From
January 2013 to August 2015, 132 newborns were born addicted to meth
and other drugs. In 2014 alone, 85 babies (three years and younger)
were exposed to drugs. These children are often removed from their
homes for their protection, but are placed in an overburdened system.
Many Indian children are placed in homes off the Reservation, separated
from vital cultural connections and community support networks. These
issues are cyclical, as foster children are at a very high risk of
experiencing trauma, and even being recruited for sex trafficking.
We hold our children sacred and families sacred. Now is the time to
support our tribal justice systems. The MHA Nation strongly supports
passage of S. 1870, S. 1942 and S. 1953. We looking forward to working
with you to support and find solutions for our overwhelmed social
services and criminal justice infrastructure to address the increased
needs of our citizens in response to boomtown development.
S. 1870, the ``Securing Urgent Resources Vital to Indian Victim
Empowerment Act''
The MHA Nation strongly supports the expansion of types of victim
assistance, services, and infrastructure that would be funded under the
S. 1870, the ``Securing Urgent Resources Vital to Indian Victim
Empowerment Act'' (SURVIVE Act). Victims of crime, especially those
whose victimization includes months or years of sexual assault and
rape, require multiple types of services such as counseling, medical
care, safe housing, and legal assistance. Opening up existing funding
sources to increase tribal resources for all of these services will
allow the MHA Nation to build our infrastructure to match the current
need, including trainings for law enforcement and service providers, as
well as building a networked system of services coordinated so all
clients receive access to services.
The rural location of our Fort Berthold Indian Reservation serves
as a challenge to deliver services to all those in need, especially in
a confidential and safe manner. Enhanced funding in tandem with privacy
protections will go far to assure victims that they are not risking
their safety nor will they face shame or embarrassment by reporting
sexual violence. Especially as relates to sexual violence, the MHA
Nation supports enhanced attention to placing Sexual Assault Nurse
Examiners on and near Indian communities to collect information and
evidence that can lead to prosecutions at the tribal and federal
levels.
Furthermore, the MHA Nation is committed to providing our members
with services that are culturally tailored and speak to their Mandan,
Hidatsa, and Arikara identity. Increasing funding for tribally
delivered services creates the opportunity for us to ensure that our
own cultural and spiritual values are at the core of all our
programming.
S. 1942, ``Savanna's Act''
The MHA Nation greatly appreciates Senator Heitkamp's sponsorship
of S. 1942, ``Savanna's Act'' and strongly supports its passage to
improve coordination across jurisdictions to collate tribal, federal,
state and local law enforcement data. This type of inter-jurisdictional
data collection would streamline existing efforts and facilitate much
needed cross-deputization of tribal, local, and state officers to
provide safety for everyone living on our rural reservation. We also
hope that improved data collection efforts lead to increased dialogue
about expanding tribal jurisdictional grants in the Violence Against
Women Act to allow tribes to prosecute human trafficking crimes
committed by non-Indians on tribal land.
The MHA Nation views data collection at every level as a necessary
step to provide for healthy Indian communities on our Fort Berthold
Indian Reservation. Data drives our understanding of the types of
crimes occurring in our communities, which then equips our tribal law
enforcement, social services, and victim services to better meet the
needs of affected individuals and families. The dearth of available
data and research specific to violence against Native American women is
deplorable because it does not provide an accurate picture of the
trauma faced by these victims and their communities, nor does it
provide resources for adequate investigation and prosecution of these
heinous crimes.
For example, while evidence suggests Native women experience human
trafficking at a higher proportion than the general population, there
were just 14 federal human trafficking investigations in Indian Country
from 2013-2015 resulting in only two prosecutions. Collecting
disaggregated data is a strong step towards matching the reality as
seen by our tribal service providers to the numbers necessary to
increase research, prosecution, and funding.
The MHA Nation urges passage of Savanna's Act for another reason:
to prevent the exact crime that cut short Savanna Greywind's life.
Federal attention is necessary to effectively combat violence against
women, which too often ends in cases of missing and murdered Native
women. Protocols that enhance coordination and provide for early
intervention in these cases must be developed to protect Native women.
Our tribal service providers have a close understanding of the needs of
their clients and the MHA Nation welcomes federal consultation that
uses these perspectives for the development of standardized protocols.
Finally, we need data on missing and murdered Native women to
quantify the social impacts of rapid development that is unique to our
Reservation. The influx of oil industry workers on and near our lands
changed the fabric of our community and having accurate data is one way
to engage in dialogue with the oil and gas industry regarding
responsibilities they have while operating on our Reservation. In this
way, we can harness the benefits of economic development while also
providing the attendant safety and services infrastructure necessary to
keep our communities thriving for generations to come.
S. 1953, the ``Tribal Law and Order Reauthorization and Amendments Act
of 2017''
The MHA Nation greatly appreciates Chairman Hoeven's sponsorship of
S. 1953, the ``Tribal Law and Order Reauthorization and Amendments Act
of 2017'' and strongly supports passage of the bill. However, much more
needs to be done to solve, or even put a real dent in, the public
safety crisis on our Fort Berthold Indian Reservation and across Indian
Country. Most important, Congress must provide the funding needed for
adequate law enforcement in Indian Country. We genuinely fear that the
re-authorization of the public safety ``needs assessment surveys''
called for in S. 1953 will remain nothing more than another academic
exercise that does not result in any real change. The extreme shortage
of law enforcement officers in Indian Country, and especially on our
Reservation, has been well known to Congress and Federal agencies for
more than thirty years, yet nothing has changed. The MHA Nation and
other tribal communities currently experience more drug and gang
activity and more unprosecuted crime than ever before even though
similar federally funded needs assessments surveys have been submitted
to Congress since 2011.
As noted above, the significant increases in populations and
activity on our Reservation from oil and gas development have long
surpassed the capacity of our law and order programs. Even now, ten
years after oil and gas development took off on the Reservation, the
Bureau of Indian Affairs (BIA) is not able to staff our current law
enforcement program to meet our most basic needs. This has left our
community unprotected, our officers over-worked to the breaking point,
and our courts struggling to provide the most basic services required
by applicable law. While increased funding will not solve every law
enforcement problem, it is necessary to hire, train and retrain
additional officers and to give our tribal courts a fighting chance to
address some very real problems.
The MHA Nation also needs real and immediate support for alcohol
and drug treatment programs. S. 1953 is not the first bill to find that
``drugs and alcohol remain key contributors to Indian Country Crime,''
yet federal alcohol and drug treatment programs remain disjointed,
overly bureaucratic, and seriously underfunded. As a result, if a
tribal programs and services do not fit into the proper federal program
box, assistance is simply unavailable. When federal assistance is
available, individual tribes get pennies when dollars are needed--in
addition to a stack of federal regulations limiting our ability to
address local problems.
We also want to highlight the MHA Nation's serious need for law
enforcement and detention facilities, and for funding to operate those
facilities after they are constructed. Police officers cannot function
without a police station, dispatch center and a jail. Tribal courts
cannot function without a court house and records storage. The MHA
Nation was forced to spend its own funds to build a new space for our
tribal law enforcement program and tribal court, yet todate BIA has not
contributed any funds to even help operate this facility. This is wrong
and violates the United States' treaty and trust responsibilities to
the MHA Nation.
We appreciate your consideration of these overarching issues as S.
1953 moves forward and Congress prepares to pass appropriations bills
for the agencies that fund tribal law enforcement and justice programs.
In addition, the MHA Nation has the following specific comments on the
provisions of S. 1953.
Section 102--Integration and Coordination of Programs
While the MHA Nation supports efforts to better coordinate law
enforcement, substance abuse and mental health efforts, it is important
to keep in mind that all of these programs are already severely
underfunded. It is also important to remember that not all substance
abuse and mental health problems lead to criminal activity. Thus, for
both of these reasons, moving substance abuse and mental health money
from health clinic programs to the law enforcement programs creates a
whole new set of problems.
MHA also has serious concerns about the implied idea of moving BIA
law enforcement activities from the Department of the Interior to the
Department of Justice. We have already seen what happened, in the past,
when Indian law enforcement money was transferred to Justice for on-
reservation FBI efforts. Those dollars simply disappeared!
We have also seen what happened when Justice assumed the lead for
detention and court construction, without tribal consultation or
approval. What was once a severely underfunded, but nonetheless
workable program, has all but ceased to exist, as has all money for
operating and maintaining tribal court buildings. With the BIA, we at
least know whom we are dealing with and an agency that understands its
trust responsibility. At Justice, tribal programs will be nothing more
than a tiny problem that never attracts the attention needed. In short,
we don't believe that moving a program from one agency to another can
solve staffing and funding shortages.
We also note that while the relationship between BIA public safety
and justice programs and Justice funded efforts has improved, it
remains disjointed, and largely unworkable. This is because, on-
reservation crime and justice occur in unique jurisdictions, involve
tribal as well as federal laws, and impact areas that are different
than those that Justice is accustomed to. For example, the Justice
crime data collection system is designed to track felonies, while
tribal police systems deal largely with misdemeanors.
Finally, while we support making federal prisons available to
tribes to address some limited needs, such as the need to house
detainees with serious medical conditions or mental health issues,
federal prisons should never be seen as a substitute for well run,
comprehensive, tribal detention facilities.
Section 103--Data Sharing with Indian Tribes
The MHA Nation supports the continued use and expansion of the
federal criminal database. This system is of particular importance to
us because the oil and gas development in our area now forces our
officers to deal with a highly transient population. We also strongly
support the bill language which continues to give our public safety
systems notice, when federal investigations are stopped, and when
federal prosecutions are denied.
Section 105--Federal Notice
The MHA Nation strongly supports the bill language requiring tribal
notice when tribal members are convicted in federal court. All too
often, tribal members lose track of family members who leave the
reservation. Far too many of these people suffer from, or succumb to,
addictions or mental health problems and this notice can help those
families reconnect and provide the support necessary for
rehabilitation. In addition, our tribal courts often have open cases
which involve persons who are in the federal system. This notice can
help our courts better manage their dockets.
Section 106--Detention Facilities
The MHA Nation supports the possible use of detention funding to
support alternatives to incarceration, however, we must emphasis again
the severe underfunding of tribal detention programs and detention
facilities. Unless additional resources are forthcoming, this expanded
opportunity will merely force us to rob from one underfunded program to
fund another.
The MHA Nation also notes that federal legislation, federal
funding, and federal programs often confuse, or fail to distinguish
between, the various detention needs that we face in our tribal
communities. This is because the words ``detention'' and
``incarceration'' have different meanings in different circumstances,
including:
a 24 to 72 hour lock up of a violent person under the
influence;
a hold of a person charged with a more serious crime, who
has yet to be arraigned, or convicted of a crime;
an adult or juvenile sentenced to a short term detention of
a few weeks; and
a person sentenced for six months or more.
With these on the ground differences, it is very frustrating when
Congress or federal officials suggest a new emphasis on funding
``alternatives to incarceration,'' when that term only applies to one
or possibly two of the categories of detention referenced above.
The MHA Nation also emphasizes that some alternatives to
incarceration, like house arrest and ankle bracelets, simply do not
work on most reservations. For example, in remote areas of our
Reservation law enforcement may have limited ability to receive a
signal from an ankle bracelet because of a lack of Internet
connections. And, even worse, no officer available to respond to that
ankle bracelet signal if, for example, a domestic abuser decides to
violate the terms of release.
Section 107--Reauthorization for Tribal Courts Training
The MHA Nation strongly supports the reauthorization of the Office
of Justice Support to provide tribal governments and tribal justice
systems with the resources and training needed.
Section 108--Amendments to the Indian Civil Rights Act
The MHA Nation supports the amendments clarifying when a jury trial
would be required, but notes generally that the requirements for jury
trials amounts to unfunded federal mandate. Federal budgets for our
court has never been increased to accommodate requirements of the
Tribal Law and Order Act and the Violence Against Women Act.
On a related issue, the MHA Nation opposes existing language in 25
U.S.C. 1304(d)(3)(B) suggesting that tribal jury pools are not
impartial unless non-Indians are included. Throughout the United
States, jury pools are merely composed of the citizens of the
jurisdiction whose laws were violated. This system and presumption of
fairness should be afforded to tribal courts. Instead, the language of
25 U.S.C. 1304 (d)(3)(B) suggests that the system for selecting tribal
court juries is unfair. This presumption of unfairness undermines the
tribal justice systems. To resolve this issue and promote tribal
justice systems we ask that the phrase, ``including non- Indians,'' be
deleted from 25 U.S.C. 1304 (d)(3)(B).
Section 109--Public Defenders
The MHA Nation supports the creation of tribal liaisons within
Federal Public Defender's districts and for the appointment of such
tribal liaisons in consultation with the tribes in those districts.
Section 110--Offenses in Indian Country: Trespass on Indian Land
The MHA Nation supports the proposed amendment to 18 U.S.C. 1165,
but suggests that tribal courts will require additional assistance and
training if this provision is ultimately adopted. In addition, given
our limited number of law enforcement officers, we also need federal
enforcement of tribal court exclusion orders. The MHA Nation needs to
have individuals who threaten the peace and well-being of our community
removed from our Reservation quickly and permanently.
Section 111--Resources for Public Safety in Indian Communities; Drug
Trafficking Prevention
The MHA Nation strongly supports continuing the Shadow Wolves
Division and applauds their efforts on behalf of their tribal nations
and the United States of America.
Section 112--Substance Abuse Prevention Tribal Action Plans
The MHA Nation believes strongly that Indian tribes are in the best
position to decide how best to deal with substance abuse in their
communities. At the same time, tribes cannot run effective prevention
programs when federal funding is limited and the programs that they
flow through lack the flexibility to allow tribes to implement what we
recognize to be effective strategies.
Section 201--Federal Jurisdiction over Indian Juveniles.
The MHA Nation feels strongly that juveniles should never be tried
as adults, except in the most unique circumstances.
Section 202--Reauthorization of Tribal Youth Programs
The MHA Nation strongly supports the continuation of the summer
youth program and encourages its expansion.
We also strongly support the continuation and expansion of
emergency shelter grants. All too often, we find juveniles in need of
supervision, but we lack the resources to address that emergency on
both a short and long term basis. These emergency shelter grants are
important, but so is federal funding for the long-term placement of
juveniles who, as repeat status offenders, need a supervised
environment. If this assistance is not provided, the chances that these
status offenders will end up before the criminal justice system
increase exponentially.
Section 203--Assistance for Indian Tribes Relating to Juvenile Crime
While the MHA Nation was pleased to see that S. 1953 recommends
increased federal coordination on juvenile crime, we must emphasis
again, that technical assistance is not helpful if we lack the
resources to implement those ideas.
We are highly supportive of the bill's new requirement for tribal
notice when a tribal juvenile is taking in by off-reservation law
enforcement and/or the off-reservation criminal justice systems. Many
tribal juveniles end up in those places because of a breakdown in
family support, or a lack of substance abuse or mental health services.
If we know about these situations, we can help.
The MHA Nation also supports the inclusion of tribal cultural and
traditional practices in the juvenile justice system. Too often our
traditional approaches are not afforded the respect that they deserve,
even though they have often shown themselves to be the most effective
way of helping given individuals.
Section 204--Coordinating Council on Juvenile Justice and Delinquency
Prevention
While the MHA Nation supports the continued operation of the
Coordinating Council on Juvenile Justice, and the proposed inclusion of
the Indian Health Service on this entity, we must point out that one of
the reasons that Councils like this are not as effective as they could
be, is because they fail to afford an appropriate role for tribal
government. While we understand that this Coordinating Council is a
federal entity, we must note that this Council could benefit greatly
from the input of tribal leaders who live with these problems every
day, and who see how and why federal programs are not as effective as
they could be.
Section 205--Grants for Delinquency Prevention Programs
The MHA Nation supports the continuation and expansion of the
juvenile delinquency grant program.
Conclusion
The MHA Nation strongly supports the efforts of Chairman Hoeven,
Vice Chairman Udall, and Members of the Committee, in particular
Senator Heitkamp, to introduce and consider bills that will support
tribal law and order and justice systems. For too long the federal
government has not fulfilled its law and order responsibilities on
Indian lands. In this era supporting tribal sovereignty and self-
determination, federal laws and programs need to be updated and
supported so that Indian tribes can take the lead in providing law and
order on our reservations. But, we cannot run these programs without
adequate federal funding that matches the United States treaty and
trust responsibilities to Indian tribes.
As our Fort Berthold Indian Reservation and our entire region faces
significant population increases from oil and gas development on our
Reservation, the MHA Nation sees the most dramatic side of these law
and order issues every day. Areas like ours need additional support
from Congress and federal budgets. Our Reservation is not only rural
and remote, it is also large and seeing crime levels comparable to some
cities. Federal law and order programs and funding should be flexible
to address these situations.
Thank you for this opportunity to provide this testimony. The MHA
Nation stands ready to assist the Committee in further consideration
and passage of S. 1870, S. 1942, and S. 1953.
______
Prepared Statement of the 23rd Navajo Nation Council (NNC)
On behalf of the 23rd Navajo Nation Council (NNC), I would like to
thank the United States Senate Committee on Indian Affairs for the
opportunity to present written testimony regarding the hearing on the
Safeguard Tribal Objects of Patrimony Act (``STOP Act'') of 2017 \1\ as
it relates to the Navajo Nation. Our history has been documented
through historical items such as ceremonial items and paraphernalia,
pottery and rugs, and land base. The importance of these ceremonial
items is deemed invaluable and should be protected at all costs.
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\1\ Safeguard Tribal Objects of Patrimony Act, S. 1400, 155th Cong.
(2017)
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We also extend our gratitude to Senator Martin Heinrich and the
several sponsors who introduced the STOP Act, and we seek to voice our
support regarding the importance of this act. It is not only vital for
Navajo people, but indigenous nations across the United States.
I. Introduction
In December 2016, the United States Congress (``Congress'') passed
House Concurrent Resolution 122, the Protection of the Right of Tribes
to Stop the Export of Cultural and Traditional Patrimony Resolution \2\
(``PROTECT Patrimony Resolution'') to condemn the theft, illegal
possession or sale, transfer, and export of tribal cultural items \3\
of American Indians, Alaska Natives, and Native Hawaiians in the United
States and internationally.
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\2\ H.R. Con. Res. 122, 114th Cong. (2016) (enacted).
\3\ Id. at 4.
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The PROTECT Patrimony Resolution compliments the United Nations
Educational, Scientific and Cultural Organization Convention on the
Means of Prohibiting and Preventing the Illicit Import, Export and
Transfer of Ownership of Cultural Property \4\ (``Convention'') of
1970, which the United States Senate gave its unanimous advice and
consent in 1972.
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\4\ U.N. Educational, Scientific and Cultural Organization,
Convention on the Means of Prohibiting and Preventing the Illicit
Import, Export and Transfer of Ownership of Cultural Property, Nov. 17,
1970, No. 11806, U.N.T.S. 1972.
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The Convention Article 2(1) states, ``[t]he States Parties to this
Convention recognize that the illicit import, export and transfer of
ownership of cultural property is one of the main causes of the
impoverishment of the cultural heritage of the countries of origin of
such property and that international co-operation constitutes one of
the most efficient means of protecting each country's cultural property
against all the dangers resulting there from.'' \5\ The PROTECT
Patrimony Resolution calls for the ``development of explicit
restrictions on the export of tribal cultural items,'' \6\ which the
STOP Act would accomplish.
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\5\ Id. at art. 2(1).
\6\ H.R. Con. Res. 122, supra note 2, at 4(4).
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First, this report provides a background on Navajo Nation's
experience and effort to protect sacred cultural items that appeared in
Paris, France. Second, this report discusses the current United States
laws intended to protect sacred cultural items from leaving the Navajo
Nation. Finally, this report highlights the importance of the STOP Act
that the NNC favors.
II. Background
The Navajo Nation's stake in protecting sacred cultural items began
in Spring 2014 when the Navajo Nation Historic Preservation Department,
the Sacred Sites Task Force as a Subcommittee of the Naabik'!yati'
Committee, \7\ the Navajo Nation Human Rights Commission, \8\ and the
Navajo Nation Office of the President and Vice-President became aware
of thirty (30) confirmed Navajo Yeibichei masks that would be auctioned
off on June 27, 2014 by the Eve Auction House in Paris, France.
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\7\ Resolution of the Naabik'!yati' Committee of the Navajo Nation
Council, NABIJY-51-12 (07/10/2012).
\8\ See NAVAJO NATION CODE ANN. tit. 2, 921 (stating that the
Commission ``is organized to operate as a clearinghouse entity to
administratively address discriminatory actions against citizens of the
Navajo Nation and to interface with the local state and federal
governments and with national and international human rights
organizations in accordance with its plan of operation and applicable
laws and regulations of the Navajo Nation.'')
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The Navajo Nation made every effort to prevent the auction of these
thirty (30) confirmed Navajo Yeibechei masks, which are sacred items to
the Navajo people, and have the sacred items returned to the Navajo
Nation. The Navajo Nation met and spoke with the United States
Department of State, United States Department of the Interior, United
States Ambassador Keith Harper to the United Nations Human Rights
Council, \9\ United States Mission to the United Nations in New York,
United States Mission of the United Nations and Other International
Organizations in Geneva, and the Embassy of the United States in Paris
on the importance of these sacred masks and their assistance to
repatriate these sacred items without cost.
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\9\ Letter from Ben Shelly, President, Navajo Nation, to Ambassador
Keith Harper, U.N. Human Rights Council, Permanent Mission of the U.S.A
(Aug. 13, 2014) (on file with the Navajo Nation Human Rights
Commission)
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All efforts made by the Navajo Nation to prevent the auction and
return of these sacred masks by the auction house were unsuccessful. On
June 27, 2014, all but seven (7) confirmed Navajo Yeibechei masks were
auctioned off and the remaining sacred masks would later be scheduled
to be auctioned on December 15, 2014. The Sacred Sites Task Force then
directed the Office of Navajo Nation Human Rights Commission to travel
to Paris to recover the remaining seven (7) sacred masks from the Eve
Auction House. This included purchasing them directly before they go to
auction or bid on them directly when the auction takes place if
purchasing them was not possible. On December 15, 2014, the remaining
seven (7) sacred masks were successfully bided on and returned to the
Navajo Nation.
In the of Fall 2015, the Eve Auction House owner reached out to the
Office of Navajo Nation Human Rights Commission and communicated that
he will be in possession of eighteen (18) Navajo Yeibichei masks, which
will be scheduled for auction on December 7, 2015. The possession and
auction of these Navajo Yeibichei masks was communicated to the Navajo
Nation Historic Preservation Department, the Sacred Sites Task Force,
\10\ and Navajo Nation Office of the President and Vice-President.
Through our efforts, we were able to work out an arrangement with Eve
Auction House to not photograph, catalog, and publish the possession
and auction of these sacred items as the Navajo Nation would be
purchasing and repatriating them directly. As a result, the Navajo
Nation stakes on protecting sacred cultural items for monetary gain
nationally and internationally increased.
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\10\ Resolution of the Naabik'!yati' Committee of the Navajo Nation
Council, NABIMY-31-15 (05/28/2015).
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III. Laws Intended To Protect Sacred Cultural Items
The United States Government has already banned domestic
trafficking on protected items of Native American tangible cultural
heritage, including our ancestors and sacred cultural items.
The Antiquities Act of 1906 makes it illegal to appropriate or
injure objects of antiquity taken from federal land without proper
permission. \11\ The Archaeological Resources Protection Act (``ARPA'')
of 1979 makes it a crime to traffic in archaeological resources removed
from public or Indian lands without proper permitting. \12\ The Native
American Graves Protection and Repatriation Act (NAGPRA) of 1990 makes
it illegal to traffic in Native American cultural items, including
human remains, removed from federal or tribal land without proper
permitting and tribal consent. \13\
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\11\ 54 U.S.C. 320301-320303 (1906), 18 U.S.C. 1866 (2014).
\12\ 16 U.S.C. 470aa-470mm (1979).
\13\ 25 U.S.C. 3001-3013 (1990), 18 U.S.C. 1170 (1994).
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Currently, the existing federal laws, such as NAGPRA, does not go
far enough to protect cultural sacred items. It is clear the penalties
are not high enough and prosecutions not frequent enough to deter
criminals. NAGPRA does not explicitly make exportation unlawful and
those who currently possess protected cultural sacred items fear
prosecution if they repatriate the objects. For this reason, many
indigenous peoples have found their cultural objects trafficked through
black markets and these objects are essential for the cultural survival
of indigenous nations.
IV. Importance of the Safeguard Tribal Objects of Patrimony Act
With the introduction of the STOP Act, it would increase NAGPRA
sentences and penalties from five to ten years and prohibit the
exportation of cultural sacred items obtained in violations of NAGPRA,
ARPA and the Antiquities Act. \14\ However, the STOP Act does not
expand categories of protected cultural heritage beyond cultural items,
human remains, archaeological resources, and objects of antiquity as
they are defined by and protected under current law. \15\
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\14\ S. 1400, supra note 2, at 2(a).
\15\ E-mail from Gregory A. Smith, Attorney, Hobbs, Straus, Dean &
Walker, LLP, to Rodney L. Tahe, Policy Analyst, Office of Navajo Nation
Human Rights Commission (Sept. 26, 2017, 08:25 MST) (on file with
author).
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The STOP Act establishes a federal framework to ``encourage the
voluntary return of tangible cultural heritage to Indian tribes and
Native Hawaiian organizations.'' \16\ In addition, the STOP Act
provides for liaisons in the Departments of the Interior and State to
facilitate the voluntary return, \17\ training and workshops, \18\ and
establishes a referral program within the Department of the Interior by
creating a ``list of representatives from each Indian tribe and
Hawaiian organization'' \19\ to assist in the ``voluntary return of
tangible cultural heritage.'' \20\
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\16\ S. 1400, supra note 2, at 4(a).
\17\ Id. at 4(b).
\18\ Id. at 4(c).
\19\ Id. at 4(d)(2).
\20\ Id. at 4(d)(1).
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Lastly, the STOP Act establishes ``a tribal working group'' \21\ to
advise the United States Government on the ``return of tangible
cultural heritage,'' \22\ ends the illegal trafficking of tribal
cultural heritage, \23\ and the return or repatriation of tribal
cultural heritage. \24\
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\21\ Id. at 5(a).
\22\ Id. at 5(b)(1).
\23\ Id. at 5(b)(2).
\24\ Id. at 5(b)(3).
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V. Conclusion
The 23rd Navajo Nation Council urges the United States Senate to
pass the S. 1400 to ensure protections for not only tangible cultural
heritage, but the Navajo (Dine) Life Way. The illicit trade of Native
American tangible cultural heritage poses a threat to cultural
survival. Our sacred and cultural items are illegally being taken from
our people, threatening the maintenance of our culture and tradition,
and depriving us of the legacy we seek to leave for our future
generations. Meanwhile, a lucrative market of our tangible cultural
heritage thrives, and without explicit export restrictions many of our
sacred and cultural items end up abroad. The Navajo Nation is committed
to preserving its cultural heritage and implores the Federal Government
to aid us in repatriating our sacred items.
We believe the STOP Act will help to end illegal trafficking of
Native American tangible cultural heritage, and it will also bring home
our sacred and cultural items that have been separated from our
communities for far too long.
______
Prepared Statement of Vinton Hawley, Chairperson, National Indian
Health Board (NIHB)
Introduction:
Chairman Hoeven, Vice Chairman Udall and Members of the Committee,
thank you for holding this important hearing on S. 465 ``The
Independent Outside Audit of the Indian Health Service Act of 2017.''
On behalf of the National Indian Health Board (NIHB) \1\ and the 567
federally recognized Tribal nations we serve, I submit this testimony
for the record.
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\1\ NIHB is a 501(c) 3 not for profit, charitable organization
providing health care advocacy services, facilitating Tribal budget
consultation and providing timely information and other services to all
Tribal Governments. Whether Tribes operate their own health care
delivery systems through contracting and compacting or receive health
care directly from the IHS, NIHB is their advocate. Because the NIHB
serves all federally-recognized Tribes, it is important that the work
of the NIHB reflect the unity and diversity of Tribal values and
opinions in an accurate, fair, and culturally-sensitive manner. The
NIHB is governed by a Board of Directors consisting of representatives
elected by the Tribes in each of the twelve IHS Areas. Each Area Health
Board elects a representative and an alternate to sit on the NIHB Board
of Directors.
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The federal promise to provide for the health and welfare of Indian
people was made long ago. Since the earliest days of the Republic, all
branches of the Federal Government have acknowledged the nation's
obligations to the Tribes and the special trust relationship between
the United States and Tribes. The United States assumed this
responsibility through a series of treaties with Tribes, exchanging
compensation and benefits for Tribal land and peace. The Snyder Act of
1921 (25 USC 13) legislatively affirmed this trust responsibility. To
facilitate upholding its responsibility, the federal government created
the Indian Health Service (IHS) and tasked the agency with providing
health services to American Indians and Alaska Natives (AI/ANs). Since
its creation in 1955, IHS has worked to fulfill the federal promise to
provide health care to Native people, but has routinely been plagued by
underfunding and mismanagement.
In passing the Affordable Care Act (ACA) (P.L. 111-148), Congress
also reauthorized and made permanent the Indian Health Care Improvement
Act (IHCIA). As part of the IHCIA, Congress reaffirmed the duty of the
federal government to American Indians and Alaska Natives, declaring
that ``it is the policy of this Nation, in fulfillment of its special
trust responsibilities and legal obligations to Indians--to ensure the
highest possible health status for Indians and urban Indians and to
provide all resources necessary to effect that policy.'' \2\
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\2\ Indian Health Care Improvement Act, 103(2009).
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IHS Quality of Care Challenges
But the promise made by the Federal Government and renewed by
Congress over seven years ago has not been kept. Not only has funding
for the agency always been woefully inadequate, \3\ but as noted in the
hearing on S. 465, and at countless other times before the Committee,
health care provided at many IHS-operated facilities falls woefully
short of safe, and effective care. Time and again, we learn of
situations where a patient goes to their local IHS-service unit only to
be misdiagnosed, not attended to and often cannot get the necessary
referral to seek care elsewhere. Anywhere else in the country, this
level of care would be completely unacceptable. However, in some places
in Indian Country it is a fact of life. This must change.
---------------------------------------------------------------------------
\3\ In 2015, for example, funding per patient at IHS was just
$3,107 at IHS compared to the national average of over $8,000.
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This low level of care at some IHS-operated facilities has been
well documented by other federal agencies as well. Over 7 years ago,
this committee issued a report citing widespread mismanagement of the
Great Plains region. \4\ The Winnebago-Omaha Indian Hospital has not
been able to bill the Centers for Medicare and Medicaid Services (CMS)
since July 2015 due to deficiencies found there. The Rosebud Indian
Hospital and Pine Ridge Indian Hospital have also been under
investigation by CMS for failing to meet the conditions of
participation by the agency.
---------------------------------------------------------------------------
\4\ ``In Critical Condition: The Urgent Need To Reform The Indian
Health Service's Aberdeen Area--Report of Chairman Byron L. Dorgan.''
Senate Committee on Indian Affairs. December 28, 2010.
---------------------------------------------------------------------------
NIHB commends the Senate Committee on Indian Affairs for the
attention that it has given to improving the quality of care delivered
at IHS facilities. The Committee has held numerous hearings on the
topic and elevated these critical issues. Legislation has been
introduced in two consecutive Congresses to improve the situation at
IHS, but has not been enacted into law. Yet, patients continue to
suffer. As recently as November 3, 2017, the Pine Ridge Indian Hospital
was given notice that it would no longer be able to bill CMS for
failing to meet conditions of participation. This is simply
inexplicable given that the agency has been addressing challenges with
CMS at this facility since at least 2015. Clearly, more must be done to
improve the care at IHS-operated facilities.
Tribes have continuingly expressed frustration at not being able to
ascertain funding information for the agency, especially when direct
service Tribes are interested in taking over operations. Without
question, the IHS has much to account for when it comes to the health
facilities that they operate directly.
Recommendations on S. 465
Given all these concerns, and the failure of IHS to improve the
delivery of health services in some areas, it is not surprising that
legislation has been introduced to provide more information about IHS
and the agency's operations. However, NIHB and Tribes have a few
concerns about the legislation that are detailed below. As Senator
Udall noted at the hearing, Congress should use its current oversight
authority to compel IHS (and the Department of Health and Human
Services (HHS), when necessary) to provide the information currently
outlined in this legislation. For example, information on the IHS
patient population; Information Technology Strategies of the IHS; and
process of the Service for carrying out construction and maintenance
projects at medical facilities should all be readily available for IHS
to provide.
The legislation, as amended, requires the HHS office of the
Inspector General (OIG) to complete the assessment, but only allows 180
days to complete the study. Acceding to OIG's 2017 work plan they
already have plans to investigate IHS in 5 separate areas including
management and hospital operations. Congress should fully evaluate the
findings of those investigations before investing a significant amount
of time and resources into an assessment of this nature. Furthermore,
180 days is not a sufficient time to complete the study given the wide
breath of information required. If OIG cannot complete the study in
this time, it will be sent out to a private entity. The bill does not
require the entity to have familiarity with the Indian health system.
This is troubling because the Indian health system, is like no other
health delivery system in the United States. Any assessor should be
able to understand the unique historical background as well as the
cultural aspects of working within Indian Country to ensure the most
informed, objective report is produced.
Additionally, different operational divisions and agencies within
HHS should share responsibility for helping to improve the quality of
care in the IHS system. The Committee should compel the HHS to work
with IHS to make improvements in the quality of care of IHS. Other
federal agencies are well experienced in the delivery of quality health
care services and should be tasked with engagement of the IHS to
improve some of the challenges at IHS-operated facilities. For example,
the Health Resources and Services Administration has significant
expertise in health professional staffing in underserved areas, and
could provide a valuable resource for IHS. While we understand that
these agencies currently collaborate somewhat, it is critical all
expertise is leveraged to the maximum extent possible. NIHB requests
that the Committee use its current oversight authority to ensure better
coordination between HHS agencies and the IHS.
NIHB also has heard from Tribes that the information asked for in
this legislation is so comprehensive that it could consume an already
overtaxed agency to answer the questions required by this assessment.
While IHS itself would not be performing the assessment, and IHS
resources would not be used to directly pay for the study, it would
require significant time of IHS staff to answer the information
required. In an agency where staffing of senior management is a well-
documented challenge, \5\ NIHB and Tribes remain concerned that an
assessment of this nature would place severe strain on the agency,
possibly at the expense of patient care. Instead, S. 465 should include
language that would specifically state that IHS staff or funds would
not be able to be reassigned to answer questions of the investigation
at the expense of other operational duties.
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\5\ See: ``The Indian Health Service: Actions Needed to Improve
Oversight of Quality of Care.'' Government Accountability Office. GAO-
17-181. January 2017.
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In Section 2, paragraph (d)(2) we recommend adding ``public health
and environmental health services.'' Tribal communities continue to
experience underdeveloped public health systems due to a lack of
federal investment in public health infrastructure for Indian Country.
This lack of public health services is a contributing reason to the
severe health disparities for AI/ANs. Therefore, we believe it is
warranted that any investigation that includes access to medical
services should explicitly look at public health as well.
In Section 2, paragraph (d)(4) the bill requires assessment into
appropriate system wide access standard applicable to hospital care,
medical services, and other health care furnished by and through the
Service. This aspect should require the assessor to take into account
geographic inconsistences across the agency including access to medical
staff, health facilities, and existing health disparities. All 12 areas
of IHS are different, so while it is important to maintain a standard
across the agency, the assessment should also consider how to account
for this variation across the system.
Self-Governance Impact
Tribes welcome the changes to this legislation that would limit
investigations to the IHS-operated facilities. Over 60 percent of the
Indian health service appropriated budget is delivered directly to
Tribes and Tribal organizations through contracts and compacts as
authorized by the Indian Self Determination Education and Assistance
Act (P.L. 93-638). Though the assessment called for in S. 465 would not
directly impact those self-governance Tribes, the impacts could have
great consequences on self-governance. For example, in Section 2,
paragraph (d)(13) S. 465 requires the assessor to look into the lack of
funding formula at IHS. These findings would undoubtedly impact all
Indian health facilities throughout the country, including those
operated by Tribes. A conversation of this nature should only occur
with the full consultation and participation of Indian Country.
Instead, NIHB recommends that the legislation be amended to include
Tribal consultation on this and other aspects of the report.
The bill does not prescribe how the report that is produced will be
used to improve current IHS practices, but does say the document will
be available publicly. This, paired with the lack of Tribal
consultation in the legislation, gives Tribes little opportunity to
weigh in on how the report will be used or the potential harmful
effects it could have on the Indian health system. We believe that the
recommendations should be discussed in full collaboration with the
Tribes on this legislation. Time and time again, Tribes in the Great
Plains Area have noted the failure of IHS to come to engage them in
consultation or important decisionmaking regarding the operation of the
health facilities on their reservations. This will only compound this
problem, and result in little change from IHS.
Conclusion and Policy Recommendations
NIHB welcomes the efforts of the Senate Committee on Indian Affairs
to provide oversight the IHS-operated facilities. For too long, our
people have suffered at the hands of mismanagement, negligence and
underfunding. However, we continue to express reservations about S. 465
due to the resources it would take away from current IHS operations and
lack of Tribal involvement outlined in the legislation. Again, we
sincerely appreciate the work of the Committee to improve the delivery
of health services at IHS-operated facilities, but caution on engaging
in this assessment without further input and consideration by the
Tribes.
We look forward to working with you on these and other proposals as
we work towards our joint goal of improving the health of American
Indians and Alaska Natives.
______
Prepared Statement of Hon. Troy Scott Weston, President, Oglala Sioux
Tribe
Thank you for this opportunity to provide testimony on behalf of
the Oglala Sioux Tribe in support of S. 465, the Independent Outside
Audit of the Indian Health Service Act of 2017. We also thank Senator
Rounds for introducing the legislation, an important step towards
increasing transparency at the Indian Health Service (IHS) and
understanding its failures in providing effective and efficient care
for our people. We support S. 465 but think it should focus on the
Great Plains Area.
The Oglala Sioux Tribe is a sovereign nation and part of the Great
Sioux Nation. In addition to the general trust responsibility to
provide for Indian health care, the United States has a specific treaty
obligation to provide health care to the Oglala Sioux people. The Sioux
Treaty of 1868, known as the Fort Laramie Treaty, includes terms
through which the United States promised to provide certain benefits
and annuities to the Sioux Bands each year, including health care
services, in exchange for the right to occupy vast areas of Sioux
territory. Our Treaty remains in full force and effect, but the United
States has not fulfilled its obligation to provide health care
services, along with other benefits.
We are the largest tribe of the Great Sioux Nation, with more than
47,000 tribal citizens. Our Reservation, the Pine Ridge Reservation,
spans more than 2.8 million acres, making it larger than the States of
Delaware and Rhode Island combined. According to the U.S. Census
Bureau, Oglala Lakota County on the western side of our Pine Ridge
Reservation is the third poorest county in the United States. The
unemployment rate on our Reservation is well over 70 percent and our
high school dropout rate exceeds 60 percent. These statistics directly
impact the health of our tribal members who have among the worst health
indicators, access to care, and quality of care in the United States.
For example, the average life expectancy on the Pine Ridge Indian
Reservation is only 50 years, significantly lower than that of non-
Indian Americans and among the lowest in the country. \1\
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\1\ Joel Achenbach, ``U.S. Life Expectancy Varies by More Than 20
Years From County to County,'' Washington Post (May 8, 2017); Laura
Dwyer-Lindgren, et al. ``Inequalities in Life Expectancy Among US
Counties, 1980 to 2014: Temporal Trends and Key Drivers,'' JAMA Intern.
Med. (May 8, 2017).
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The state of Indian health care in the Great Plains Area, and
specifically in our Reservation IHS facilities, is one of the greatest
challenges facing our Reservation community. It is also an issue
requiring federal attention and action on behalf of the United States.
Accordingly, it is our position that the obligation of the federal
government to provide adequate health care services to the Oglala Sioux
people, who are some of the poorest and most disenfranchised in this
Nation, is not only a moral responsibility, but a legal one. IHS is to
provide adequate health care services to Native communities but it has
not lived up to its mandate. The agency is currently operating in an
unsatisfactory--even dangerous--manner and continually fails to meet
basic federal standards for competency and quality of care.
This failure is alarmingly apparent on our Reservation and at the
Pine Ridge Hospital where we a facing a crisis of care. On November 3,
2017, the Pine Ridge Hospital received a Termination Notice from the
Centers for Medicare and Medicaid Services (CMS). CMS is terminating
the Pine Ridge Hospital's provider agreement, effective November 18,
2017, based on the Hospital's failure to attain compliance with CMS
Conditions of Participation (CoP) requirements for Emergency Services.
CMS found that the Hospital's deficiencies limit its capacity to
provide services at an adequate level and quality. CMS's termination of
the Hospital's provider agreement terminates the Hospital's ability to
provide Medicaid/Medicare services and bill for the same.
The IHS's failure to comply with the CMS CoP requirements is
unacceptable. It is especially egregious given that this Termination
Notice comes after a long string of CMS cited deficiencies at the Pine
Ridge Hospital. IHS has a long history of inadequate quality of care at
the Pine Ridge Hospital, set forth in detail in recent times in the
2010 Dorgan Report. \2\ This latest CMS cited deficiency is
particularly deplorable as CMS's onsite survey of the Hospital was part
of IHS's effort to satisfy CMS's cited deficiencies from November and
December 2015 and its effort to get out from under the Systems
Improvement Agreement (SIA) it entered into in April 2016. IHS executed
the SIA specifically to ensure compliance with the CoPs and facilitate
the delivery of quality health care services at the Pine Ridge
Hospital.
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\2\ In Critical Condition: The Urgent Need to Reform the Indian
Health Service's Aberdeen Area, Report of Chairman Byron L. Dorgan to
the Committee on Indian Affairs, 111th Cong. (Dec. 28, 2010) (``2010
Report'').
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To say our Tribe is disappointed with the IHS is an understatement,
but we are also severely frustrated and deeply concerned about the
impacts the termination of the Hospital's provider agreement will have
on the IHS's delivery of health care services to our people. The loss
of Medicare/Medicaid reimbursements will have significant financial
consequences for the Pine Ridge Hospital. Medicaid is critical to the
Indian health system. In 1976, Congress authorized the IHS to bill
Medicaid in an effort to provide badly needed resources to the
chronically underfunded IHS. We have heard the IHS previously state
that approximately 52 percent of our Pine Ridge Hospital's budget is
from third party billing to Medicare and Medicaid. Regardless of that
exact figure, the IHS undoubtedly needs Medicare/Medicaid funds to
operate the Hospital, which already operates on a woefully underfunded
budget. The Hospital simply cannot operate on its base budget alone,
let alone address the alarming health care disparities on our
Reservation.
We are thankful that Congress recently appropriated $29 million to
the Great Plains Area in emergency funds for IHS to use in addressing
compliance with CMS standards. However, as Elizabeth Fowler, Deputy
Director for Management Operations of the IHS, testified, our Hospital
will still lose its certification and although IHS is considering next
steps, she was unable to identify exactly what those were. Ms. Fowler
agreed to provide the Committee a briefing paper on next steps. We look
forward to this information. In light of the longstanding and pervasive
nature of IHS's substandard quality of health care in the Great Plains
Area, we remain wary of a temporary fix and request that the IHS
implement a root and branch approach to achieve lasting reform. A part
of this root and branch approach must be transparency in how IHS is
spending its funds.
The current crisis at our Hospital stems, in part, from ongoing
problems: a staffing shortage, high turnover and an unqualified staff.
Filling the copious vacancies at our Hospital is essential to help keep
it open and improve its quality of care not only to satisfy CMS's CoP
requirements but also to ensure that our members receive the health
care they need and deserve. The position vacancy rates at our
facilities are unacceptable. IHS is limited in its ability to attract
qualified staff because it cannot compete with the private sector. To
be on a level playing field with the private sector, IHS needs more
funds and the flexibility to provide additional resources in
compensation packages. In addition to an inability to attract staff,
IHS cannot retain those it does hire. It is common for health care
providers to only stay long enough to satisfy their temporary contract.
Once their contract is up, they move on. The Tribe has continually
expressed concern with IHS's inability to recruit, hire, and retain
skilled medical staff.
In addition to qualified medical staff, we need trained, expert
hospital administrators and administrative staff. Administrators must
prioritize recruitment and a stable, well-managed work environment.
Further, the administrative staff should be trained and proficient in
third party billing to enable aggressive pursuit of third party
collections, so no available health care funding is left on the table.
This assumes our Hospital will be recertified by CMS, a necessary step
for us. Limited funding for medical facilities and basic and necessary
equipment is, of course, another challenge in recruitment and retention
because these inadequacies make the staff's jobs much harder.
Third party resources are an increasingly important component of
IHS funding. The Oglala Sioux Tribe would like to be assured that these
resources have been effectively managed or used by the IHS to improve
patient care. Under federal law, third party collections are primarily
to be used ``to achieve or maintain compliance with applicable
conditions and requirements'' of the Medicaid and Medicare programs. If
there are amounts collected in excess of what is needed for this
purpose, such collections shall be used ``subject to consultation with
the Indian tribes being served by the service unit. . , , for reducing
the health resource deficiencies (as determined in section 1621(c) of
this title) of such Indian tribes.'' \3\ An audit of IHS should reveal
whether third party collections have been and are being used for
maintaining compliance or for reducing health resource deficiencies.
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\3\ 25 U.S.C. 1641(c)(1)(B).
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We have asked for congressional action regarding the IHS's
unacceptable operations because Congress should act to ensure the
proper provision of health care by the IHS to Indian tribes and fair
access to Medicare and Medicaid by our people. S. 465 takes important
steps towards determining how the IHS is using Indian health care
funding. We support this legislation. Again, we believe the legislation
should focus on the Great Plains Area. We do not want IHS resources
expended in other Areas for audit purposes if those Areas are
functioning properly and with transparency, and do not affect how the
Great Plains Area operates. We also believe Congress could do more.
Hence, we support the recommendations offered by David Flute, Chairman
of the Sisseton-Wahpeton Sioux Tribe, to improve and strengthen S. 465.
Indeed, efforts to improve transparency, accountability, and meaningful
partnership and consultation with IHS should begin with S. 465. Thus,
we support an amendment to S. 465 that would require the Department of
Health and Human Services Office of Inspector General to meaningfully
consult and collaborate with Tribes concerning the formulation of the
study, findings of the report and the submission to Congress.
The chronic underfunding of the IHS and the neglect of treaty
obligations over the years has and continues to take an enormous toll
on our members' health and well-being. The IHS Great Plains Area has
struggled for too long with lack of resources, poor administration, and
the inability to retain qualified medical staff to serve at its service
units. This all leads to substandard quality of care for our people.
All we want is quality health care for our people. Certainly, this
should not be an unachievable goal in the United States of America,
especially when the United States of America bears treaty and trust
responsibilities to us.
Thank you for your attention to this most important matter.
______
Prepared Statement of Kate Fitz Gibbon, Executive Director, Committee
for Cultural Policy \1\
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\1\ The Committee for Cultural Policy, POB 4881, Santa Fe, NM
87502. www.committeeforculturalpolicy.org,
[email protected].
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Mr. Chairman, my name is Kate Fitz Gibbon and I am the Executive
Director of the Committee for Cultural Policy, a non-profit
organization dedicated to educating the American public and urging an
open discourse as the foundation of a balanced cultural policy in the
US. The Committee for Cultural Policy supports museums and the museum
mission to preserve, research, and display art and artifacts for the
public benefit. We support the lawful circulation of art and artifacts,
as Congress did in enacting the 1983 Convention of Cultural Property
Act and the 1979 Archaeological Resources Protection Act (ARPA).
The Committee for Cultural Policy (CCP) has identified a number of
key concerns with the STOP Act:
The STOP Act will discourage collecting and trade of
lawfully owned Native American objects, undermine cultural
tourism, which is an economic mainstay of several Western
states, and create legal uncertainties for the hundreds of
thousands of Americans who have collected Native American art
and artifacts for generations.
The STOP Act fails to define the difference between
ceremonial and nonceremonial objects, and it leaves the
definition of ``Native American cultural objects'' subject to
export prohibitions open to new tribal interpretation for each
Native American object seeking export. The knowledge of what is
communally owned and inalienable is privileged information, and
may be known only to initiates within each tribe.
The Stop Act would violate the individual right to due
process under the Fifth Amendment by making it illegal to
export certain items without giving the individual proper
notice of what items are illegal to export.
The STOP Act is unnecessary because `trafficking'' in
violation of NAGPRA or ARPA is already unlawful, and 18 U.S.C.
554 already prohibits export from the United States of any
object contrary to any law or regulation of the United States,
and imposes ten years' jail time for a first offense.
The STOP Act establishes as official U.S. government policy
the return of all ``items affiliated with a Native American
Culture'' to the tribes, which would include millions of
objects currently in lawful circulation in the U.S., and
millions more in American museums.
We have highlighted the following issues in the STOP Act that are
of particular interest to American museums and the collectors that
support them.
1. The STOP Act makes it federal policy to encourage the return of all
Native American-affiliated objects to tribes. This could damage
cultural tourism, particularly in the West, eliminate a major
form of art collecting and art appreciation, and destroy
hobbyist activities that are legal, educational and give
pleasure to hundreds of thousands of Americans
The STOP Act's federal returns program is based on a new and
dangerous federal policy to encourage the return of all Native
American-affiliated items to tribes, even when ownership and trade in
such objects is perfectly legal. STOP Act fails to address what the
repercussions will be for ``collectors, dealers, and other individuals
and non-Federal organizations that hold such heritage'' who do not to
engage in the returns program and attempt to sell or donate these
legally-owned objects to a museum or other organization.
The ``tangible cultural heritage'' protected by the STOP Act's
returns policy extends beyond any individual's reasonable expectations
because this policy seeks to curb the trade of any ``culturally,
historically, or archaeologically significant objects, resources,
patrimony, or other items that are affiliated with a Native American
culture,'' \2\ regardless of an object's legal title, cultural
significance, economic value, or even the tribes' desire to have the
object returned. Is the STOP Act truly seeking to have every miniscule
potsherd and arrowhead returned to Native American tribes? Every Native
American ceramic pot, rug or bracelet?
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\2\ H.R.3211, 115th Cong. 3(5) (2017).
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To give just one example of the type of legal material affected by
this provision of the STOP Act, the prohibition against trafficking in
archeological resources in ARPA specifically excludes arrowheads found
on the surface of the ground. President Jimmy Carter was just one of
thousands of American hobbyists who have collected arrowheads legally
since they were children. There are now hundreds of hobbyist groups of
arrowhead collectors, with hundreds of thousands of members, who like
President Carter, are enthusiastic collectors of arrowheads. These
clubs may be found in every state in the U.S.
The adverse effects of the STOP Act's ``voluntary'' returns program
and Tribal Working Group will affect not only private dealers and
collectors, and private individuals, but also the Native American
artisans who rely on the sale of their artworks to support their
livelihood. Is that truly the outcome that the STOP Act seeks to
achieve?
2. The creation of a federal policy that encourages the return of all
Native American-affiliated objects to tribes could deprive
legally owned objects of their fair market value, amounting to
a regulatory taking
The STOP Act's adoption of a federalized return policy applying to
all Native American affiliated objects policy will likely result in an
insidious regulatory taking by destroying the value of American private
property and threatening the collections of America's citizens, museums
and cultural institutions, as well as the viability of many businesses
and Native American artisans.
Supreme Court precedent recognizes two forms of takings for Fifth
Amendment purposes: First, where the government requires permanent
physical invasion of individual's private property, however minor,
there must be just compensation. \3\ Second, and more relevant to the
STOP Act's dangerous effects, is where regulations completely deprive
an owner of ``all economically beneficial us[e]'' of his or her
property. \4\
---------------------------------------------------------------------------
\3\ Lingle v. Chevron USA Inc., 544 U.S. 528, 538 (2005).
\4\ Lingle v. Chevron USA Inc., 544 U.S. 528, 538 (2005) (citing
Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019 (1992)
---------------------------------------------------------------------------
In the seminal case on government takings, Penn Central Transp. Co.
v. New York City, the Supreme Court outlined three main factors to
determine whether there has been a taking within the scope of the Fifth
Amendment: (1) the economic impact of the regulation on the claimant;
(2) the extent to which the regulation interferes with investment-
backed expectations and (3) the character of the government action. \5\
Later, in Lingle v. Chevron, the Court applied the Penn Central and
other `takings' jurisprudence to conclude that any taking inquiry
``turns in large part. . . upon the magnitude of the regulation's
economic impact and the degree to which it interferes with legitimate
property interests.'' \6\
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\5\ Penn Central Transp. Co. v. New York City, 438, U.S. 104, 124
(1978);
\6\ Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539-40 (2005)
(citing Penn Central Transp. Co. v. New York City, 438, U.S. 104
(1978); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419
(1982); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)).
---------------------------------------------------------------------------
There is no disputing that individuals, ranging from private
collectors to tribal artisans have legitimate private property
interests in these objects. No regulations at the time of acquisition
of this property would put the individual on actual or constructive
notice that these objects would be subject to such broad oversight. \7\
Thus, their investment-backed expectations would reasonably include the
rights to buy, sell, and possess the item so long as the object was not
illegally acquired in contravention of state or federal law, such as
ARPA and NAGPRA. These are some of the most fundamental ``sticks'' that
form legitimate property interests under United States law.
---------------------------------------------------------------------------
\7\ See e.g., Good v. United States, 189 F.3d 1355 (Fed. Cir.
1999), cert. denied, 529 U.S. 1053 (2000).
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The impact on the economic value of these objects is both
predictable and deleterious. The proposed federal voluntary returns
policy fails to address what the repercussions will be for the
individuals who do not to engage in the voluntary returns program and
attempt to sell their property or even donate it to a museum or other
organization. Instead, this policy creates a stigma on objects and
individuals who do not comply with this ``voluntary'' returns program--
a stigma that can completely diminish the market value of that object,
denying the property owner of the right to earn a ``reasonable return''
on his or her property. \8\
---------------------------------------------------------------------------
\8\ Penn Central Transp. Co. v. New York City, 438, U.S. 104, 129
(1978).
---------------------------------------------------------------------------
The STOP Act's institution of a Tribal Working Group to provide
recommendations regarding ``the return on tangible cultural heritage by
collectors, dealers, and other individuals and non-Federal
organizations'' \9\ is further problematic. The Act creates an
oversight group that is not limited to recommending the return of
illegally removed or trafficked objects in violation of federal law.
Rather, the Act delegates to this Tribal Working Group the right and
responsibility to recommend the return of any and all legally owned
objects, regardless of whether those objects were part of the voluntary
returns program. Collectors, museums, dealers, hobbyist groups, etc.
have no voice.
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\9\ H.R. 3211, 115th Cong. 5, (2017).
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How else will this Tribal Working Group find out about objects
owned by collectors, dealers, and other private individuals, except by
closely supervising the trade of Native American-affiliated items? Not
only is this an exceptionally overbroad delegation of power, it will
also contribute to a stagnation in the trade of Native American
objects, as individuals will no longer be able to trade in these
objects without constant fear that the Tribal Working Group may
intercede and recommend the object be returned.
With such power granted to this Tribal Working Group, Native
American-affiliated objects will likely become unsellable, as
individuals and institutions will likely refuse to purchase or accept
these objects because of the stigma now attached to these otherwise
lawfully-owned objects. Such an adverse economic impact would
eventually amount to a regulatory taking because the policy will
deprive numerous collectors, dealers, and individuals of the fair
market value of their property without any just compensation.
3. The STOP Act's Returns Program's Policy Also Contradicts ARPA's
Intention That Private Collections Remain a Resource for
Preservation and Study of Native American Culture
While the intentions of the STOP Act's voluntary returns program
are understandable--even admirable--the policy directly contravenes the
very policies of ARPA and NAGPRA, which undergird the STOP Act itself.
This policy acknowledges that American tribes do not have a superior
right to all Native American-affiliated objects, simply because these
are Native American in origin. Our country has had a long history of
protecting private property rights. Native American art and artifacts
collected by American citizens have long been interpreted as private
property, and our constitution requires that certain due process
requirements be met before they are taken away.
Art traders and the collecting community have been accused in the
media of exploiting Indian culture, especially in light of the 2015
auction sales in Paris of sacred masks and statues belonging to the
Native American Hopi tribe. The major Native American art trade
organization ATADA has adopted bylaws forbidding trade in items in
current ceremonial use, \10\ established due diligence guidelines to
protect buyers and sellers, \11\ and initiated public education
programs \12\ as well as a truly voluntary returns program that has
brought dozens of important ceremonial items back to tribes in the last
year. \13\
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\10\ ATADA Bylaws, Article X, Trade Practices, Ethics, And
Guarantees. https://www.atada.org/bylawspolicies/
\11\ ATADA Bylaws, Article XI, Due Diligence Guidelines. https://
www.atada.org/bylaws-policies/
\12\ ATADA Symposium, Understanding Cultural Property: A Path to
Healing Through Communication. May 22, 2017, Santa Fe, NM.
\13\ ATADA Bylaws, Article X, ATADA Guidelines Regarding the Trade
in Sacred Communal Items of Cultural Patrimony. https://www.atada.org/
bylaws-policies/
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But it should be remembered that the vast majority of the trade in
Indian artifacts--virtually all the trade in current market--is
completely legal, and that Congress deliberately excluded pre-existing
privately held collections of artifacts from ARPA's prohibitions 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.'' \14\
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\14\ 16 U.S.C. 470aa(b).
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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.''
\15\
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\15\ H.R. REP. 96-311, *12,1979 US.CC.A.N. 1709, **1714
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.'' \16\
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\16\ 16 U.S.C. 470ee(f).
As applied in Section 4(a) of the STOP Act, the implementation of a
voluntary returns program of all Native American-affiliated objects
supports a blanket federal policy to completely end the trade,
collection, preservation in institutions, museum holdings and any other
form of possession of Native American art of all kinds by US citizens.
4. STOP Is Unprecedented and Untested Legislation as an ``Export
Law.'' It is Radically Different from All Other Export Laws and
Cultural Property Laws Around the World.
Typically, export laws in developing nations prohibit export of all
cultural property, which includes everything from paintings to postage
stamps over 50-100 years old. This is often the case where a nation has
a history of colonial exploitation and also, very importantly, where
the local economy is too weak to retain important art or manage
resources. The US is by far the largest market in the world for Native
American art. Laws in some totalitarian nations prohibit all export as
a means of centralizing and controlling movement of property and
sometimes as a means of limiting free expression of ideas. So, for
example, books and historical documents are considered cultural
property under these laws.
Laws in some developed nations (such as Great Britain or Canada)
require a permit for export of items over a certain age and value.
Permits are almost always granted, and when they are not granted, the
law provides for systems (government grants, special purchases) to
acquire the art for the nation at Fair Market Value. To be subject to
export review, objects considered `ethnographic material' must have a
fair market value of $3,000 if made by an ``Aboriginal person.''
In the UK, an exporter is required to obtain a permit in order to
export artworks and historic objects meeting criteria based on Fair
Market Value, archaeological status or origin. The Arts Council's
Committee on the Export of Works of Art and Objects of Cultural
Interest (RCEWA) advises the government on whether to retain an artwork
or grant an export license. Permission to send the item out of the UK
may be refused in order to allow time for repurchase of the artwork by
a UK museum or charitable fund. Repurchases are usually supplemented by
public donations.
Laws in other developed nations regulate export of all art in a
national inventory, based on a specific list of identified objects that
are restricted from permanent or temporary export. Each object subject
to export restriction is individually cataloged. This is the case in
Japan, where cultural property of different degrees of importance is
documented and classified into categories from freely exportable to
lawful for temporary export for exhibition purposes (just over 10,000
items in the entire history of Japanese art), to unlawful to export
under any circumstances (about 1400 individual items, many in the
Imperial collections).
Industrial nations also prohibit trade in very specific non-art
commodities, either to protect industry or limit access to technology,
for example nuclear or weapons technology.
STOP does not fit into any of these categories of existing laws.
It's not based on value, not on a list of objects, or defined types of
items that cannot be exported. That means that there are no similar
models, in the US or internationally, that we can look to and compare
how other laws have worked in the past. That no such system has ever
been tried in any other country should discourage the broad imposition
of highly restrictive policies affecting virtually all Native American
art.
5. Conclusion
The Committee for Cultural Policy urges that the Senate Indian
Affairs Committee seriously consider alternatives to the STOP Act to
find a cure for the serious concerns of the tribes. The answer cannot
be found in the flawed legislation of the STOP Act. Instead, this
Committee should consider as alternatives:
legislation to more efficiently bring objects and ancestral
remains already under federal government control back to the
tribes, to ensure adequate funding for National NAGPRA, to fund
tribal cultural offices, and to develop tribal legislation to
ensure that important cultural resources remain permanently in
tribal hands;
educating the public on tribal values;
facilitating truly voluntary returns of important cultural
objects;
building tribal government capacities and cultural heritage
institutions, and creating tribal organization(s) to accept
voluntary donations.
I would like to thank the Senate Indian Affairs Committee for the
opportunity to present testimony. The Committee for Cultural Policy
respectfully requests the Senate Indian Affairs Committee to carefully
consider all the concerns raised regarding this legislation and to
reject the STOP Act as written.
______
Prepared Statement of the Society for American Archaeology (SAA)
Dear Chairman Hoeven and Vice Chairman Udall,
The Society for American Archaeology (SAA) appreciates this
opportunity to provide testimony on S. 1400, the Safeguard Tribal
Objects of Patrimony Act of 2017. This bill would enhance the United
States' ability to prevent the export of tribal objects of cultural
patrimony acquired in violation of the Archaeological Resources
Protection Act (ARPA) or the Native American Graves Protection and
Repatriation Act (NAGPRA), and to help prevent the sale of such items
that have already been removed from US territory. While we do have
concerns with certain provisions, we are hopeful that these issues can
be resolved in the weeks ahead.
SAA is an international organization that, since its founding in
1934, has been dedicated to the research about and interpretation and
protection of the archaeological heritage of the Americas. With more
than 7,500 members, SAA represents professional archaeologists in
colleges and universities, museums, government agencies, and the
private sector. SAA has members in all 50 states and many nations
around the world.
The need for the legislation in halting overseas auctions
The looting of Native American archaeological materials and objects
of cultural patrimony from federal and tribal land is a longstanding
and multi-faceted problem and was a primary reason for the enactment of
such statutes as the Antiquities Act, ARPA, and NAGPRA. SAA has
consistently worked to end such looting and trafficking both at home
and abroad. We have long stood against the buying and selling of
objects out of archaeological context. As noted in our Principles of
Archaeological Ethics, commercialization ``. . .is contributing to the
destruction of the archaeological record on the American continents and
around the world. The commercialization of archaeological objects--
their use as commodities to be exploited for personal enjoyment or
profit--results in the destruction of archaeological sites and of
contextual information that is essential to understanding the
archaeological record.''
In recent years, numerous objects of great spiritual and cultural
importance to Native American tribes have been put up for sale in
European auction houses. SAA and other organizations, including the US
government, have repeatedly asked foreign auction houses and
governments to prevent these sales from going forward. For example, in
Europe, there were highly publicized sales of objects affiliated with
the Hopi and other Southwestern tribes in both 2012 and 2013. The sales
went ahead, in spite of objections from tribal and preservation groups
and the U.S. State Department. Foreign government officials asserted
that the auctions could not be stopped because the US did not have a
law specifically prohibiting the export of illegally procured Native
American objects.
Section 2 of S. 1400 would close this gap by explicitly barring and
setting penalties for the knowing export of Native American cultural
items that were obtained in violation of ARPA, NAGPRA, or the
Antiquities Act. It would also increase the maximum term of
imprisonment for repeated violations of NAGPRA from five years to ten.
These are simple and straightforward remedies that will not only help
deter the export of illicitly acquired materials, but also give our
government the crucial legal footing it needs to halt future overseas
auctions of such pieces.
Voluntary return of items
Many objects important to Native American tribes were taken
illegally, both prior to and after the enactment of the federal laws,
and in some cases against tribal law. These objects may still be
located in the US, or they may be overseas. In the US, NAGPRA provides
a valuable and effective method of repatriating certain types of
articles held by federally linked institutions to lineal descendants
and culturally affiliated tribes. No such mechanism exists, however,
for objects and materials still in the United States but not covered by
NAGPRA.
Sections 3 and 4 of S. 1400 attempt to address this matter by
defining and establishing a mechanism of voluntary return of items of
``tangible cultural heritage.'' Under this language, it would become
the official policy of the federal government for ``collectors,
dealers, and other individuals and non-Federal organizations'' that
hold such articles to return them--without threat of prosecution--to
Indian tribes and Native Hawaiian organizations.
We find that enactment of these provisions, as currently worded,
would be highly problematic for the following reasons:
Sec. 3(5)(B)'s current definition of Tangible Cultural Heritage
will be interpreted to mean virtually anything of Native American
origin, regardless of age or means of acquisition. This would pose
dramatic practical problems in both interpretation and implementation.
Every potsherd and arrowhead in archaeological collections can be
considered ``significant,'' and thus subject to the Federal
Government's voluntary return policy.
Coupled with the broad definition of ``tangible cultural heritage''
in Section 3, Section 4 says that all non-federal museums and research
institutions should return all of their Native American collections,
regardless of the provenance of the items, the means of acquisition, or
of the ongoing relationships that such facilities have with tribes.
Thousands of cultural, natural history, and art museums that hold
substantial collections of Native American items and that use them both
for research and educational exhibits would be subject to this
voluntary return policy of the United States, even though the objects
in their collections were acquired legally, and even though many of
these museums have excellent relationships with tribes and hold items
in trust for them. Under such circumstances, research into our shared
past would come to a halt.
It should also be stated that the Voluntary Return section of the
bill is vague, convoluted and, in many ways, simply impractical. For
example, the bill is not clear on how the referrals process would be
effectuated from what consultation means under the bill, including how
notice would be given to other tribes and Native Hawaiian organizations
to the operation (selection, election, terms) of a new advisory working
group. Moreover, the proposed bill provides no funding for a position
at DOI to do the referrals, maintain the referral list, or make
determinations of ``likely'' affiliation. It offers no funds for tribes
to repatriate items or hire staff to handle the referrals, both of
which can present a significant financial hardship. Additionally, it
should also be stated that the ``return'' outcome envisioned in the
bill would not be as straightforward as it might appear. For example,
to which Apache or Cherokee or Yavapai tribe should an item known only
as Apache, or Cherokee, or Yavapai go? Also, what about objects whose
affiliation might be shared between tribes, or items that don't have an
associated modern tribe but are nonetheless Native American?
Furthermore, NAGPRA provides an established process for the
repatriation of cultural items (human remains, sacred objects, funerary
objects, and cultural patrimony) that are under the control of museums
and universities that receive federal funds. We believe that cultural
items, as defined by NAGPRA (including human remains), will cover the
items at issue. As written, S.1400 provides a parallel process for the
return of these same items from these same institutions, adding a legal
conflict and leading to confusion without providing any additional
protection or benefit with respect to these remains and items.
However, we appreciate the intent of Sections 3 and 4, and see the
need for some kind of voluntary method for restoring to the tribes
looted objects that are not covered by NAGPRA, and that are still in
the U.S. We believe the language could be rewritten (1) to apply to
``cultural items'' as defined by NAGPRA (and embodied in Section 2 of
the proposed law--eliminating the term ``tangible cultural property);
and (2) to specify that the voluntary return policy does not apply to
museums, universities, and other institutions that are subject to
NAGPRA, only to dealers, collectors, and other organizations.
An alternative would be to eliminate Section 4 altogether and to
convene a gathering of all stakeholders on this issue to create a new
approach in separate legislation. In either case, it would be useful to
add a provision authorizing more funding and staffing for law
enforcement in the area of cultural resources and looting or illegal
trafficking.
SAA strongly supports the export-related provisions of S. 1400, and
stands ready to work with Senator Heinrich and the committee to remedy
what we see as some serious problems and to help move this legislation
forward.
______
Prepared Statement of Hon. Russell Begaye, President, Navajo Nation
Ya 1'at'eeh Chairman Hoeven and Members of the Committee.
My name is Russell Begaye. I am president of the Navajo Nation. I
want to thank the Committee, Chairman Hoeven, and Vice Chairman Tom
Udall for holding this legislative hearing on an important matter that
affects all of Indian Country.
The Navajo Nation supports S. 1400, the Safeguard Tribal Objects of
Patrimony Act of 2017 (STOP Act).
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 the President of the Navajo Nation, this responsibility is not
all my own. I am humbled and honored to share in this sacred
responsibility with our past leaders, our current cultural teachers,
and the medicine people who today lead our ceremonies and our sacred
prayers. We believe that through their practice and use of our sacred
objects, they restore balance, health, and spirituality to bring us
together as Dine People. These sacred objects are central to our future
as Dine people. These objects 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.
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 protection of
tribal patrimonial items. To those cultural pioneers and leaders, we
thankful to them for their work and advocacy on behalf of all Indian
Nations. However, from time to time, we must revisit these cultural
protection laws based on the ever-changing world and add protections
that were unseen at the time these laws were enacted.
Today, we are here to show our support of the STOP Act to improve
upon the body of cultural resource protection law, domestically and
internationally.
The Navajo Nation is in full support of federal and legislative
measures that address the illegal sale and trafficking of Native
American cultural patrimony. We thank the lawmakers and the
administrative officials for their leadership and support on these
matters.
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 concept of art,
archeology, anthropology, and government encompasses a view of cultural
patrimony as objects to be studied and admired for intellectual gain.
We also acknowledge that there are individuals in academia who have
spent their entire careers studying our people and that there are
higher education institutions devoted to teaching their students about
American Indians.
However, our people and our objects of cultural patrimony are not
to be studied, hung on walls to be admired or cataloged and placed in
storage bins in annexes across the world. Our sacred objects are not
like the western concept of icons and statuaries that are found in
western churches, displayed in museums or sold at auction or traded on
the black or open market.
Our medicine people sang and prayed over these sacred items in
ceremonies for days, and in some cases, weeks. The raw materials used
to create our sacred items are sacred themselves. Our people, our holy
people, created these items for the benefit of our Nation. These items
were created to maintain the sacredness and the wholeness of our
people. Without them, we are not a whole people.
Museum curators, scientists, and collectors do not have the
inherent knowledge, nor do they possess the right to care for these
sacred objects in our sacred way. Curators, scientists, and collectors
cannot care for these objects, nor can they restore balance into the
lives of our people. These are scared responsibilities that were
bestowed upon by our holy people to our medicine people. Our medicine
people possess the divine right to care for these objects. We believe
that by utilizing our sacred objects in ceremonies--through our songs
and our prayers--that balance, harmony and healing is restored to our
communities.
Despite protections in current law, the illicit trade in Native
American tangible cultural heritage continues to pose a serious threat
to tribal cultural survival. Our sacred and cultural items are
illegally taken from our peoples, threatening the maintenance of our
cultures and traditions and depriving us of the legacy we seek to leave
our future generations. Meanwhile, a lucrative black market in our
tangible cultural heritage thrives, and without explicit export
restrictions many of our sacred and cultural items end up abroad.
For decades, the Navajo Nation has shared in the struggles with
other tribal nations to recover the physical remains of our ancestors
and the sacred objects they left behind. The Navajo Nation has
litigated tirelessly over the shortcomings of NAGPRA as recently as
last year. We, as a sovereign nation, continue to struggle with
utilizing current U.S. laws to protect our sacred objects and remains
in the jurisdiction of your international counterparts.
Last year, the Navajo Nation recovered several ceremonial masks
from a Paris, France auction, but not without extreme difficulty. The
Paris Auction House refused to remove Navajo ceremonial masks from its
sale, citing lack of explicit export prohibitions. The Nation
eventually recovered 15 masks following monetary negotiations with the
Auction House. Unfortunately for the Nation, the French people and
their government did not understand, nor did they attempt to
understand, our perspective--these objects were sacred and were not
created to hang on walls of museums. France simply equated our interest
in the return of these objects as a religious issue. France did not
take into consideration that these ceremonial masks were integral to
our very existence. Other nations have demonstrated a similar view.
Our most recent experience with the Paris Auction House, not
dissimilar from all other repatriation efforts, is why the Navajo
Nation passionately supports the STOP Act. Why should we, as Dine
People, be forced to participate in a bidding process to retrieve items
that were taken and sold by individuals who had no right to do so?
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
wellbeing.
We look forward to working with Congress and the Administration to
enact current measures including the STOP Act of 2017--a bill that will
prohibit the exporting of sacred Native American items and increase
penalties for stealing and illegally trafficking tribal cultural
patrimony.
We support the STOP Act's increased penalties for violations of the
Native American Graves Protection and Repatriation Act (NAGPRA) and its
explicit prohibition on exporting items obtained in violation of
NAGPRA, the Archaeological Resources Protection Act (ARPA), and the
Antiquities Act. It is important to note, the STOP Act does not extend
the reach of these three laws to the tribal cultural heritage that is
not already protected, and thus it does not criminalize any currently
legal domestic activity. Instead, it increases the deterrent effect of
current law, creates a structure for federal facilitation of the
voluntary return of tribal cultural heritage and engages tribes through
a working group to provide input on implementation.
By passing these cultural protection laws, Congress will take a
major step in history in its endeavor to make the Navajo Nation and all
tribes across the country whole after experiencing the erosion of their
cultural identities. We are grateful to you, to the Committee members,
and to the Committee staff for your work in drafting STOP. Your
continued support for the recovery of our sacred objects will not only
contribute to our hozho, the beauty way of our life, but your support
of S. 1400 will also ensure the survival of our People. The Navajo
Nation and Indian Country are grateful for your service and long-term
vision and wisdom on this matter. Thank you.
______
Prepared Statement of the United South and Eastern Tribes Sovereignty
Protection Fund (USET SPF)
The United South and Eastern Tribes Sovereignty Protection Fund
(USET SPF) is pleased to provide the Senate Committee on Indian Affairs
(SCIA) with the following testimony for the record of its November 8,
2017 legislative hearing on S.1400, The Safeguarding Tribal Objects of
Patrimony (STOP) Act of 2017, and S.465, The Independent Outside Audit
of the Indian Health Service Act of 2017.
USET SPF is an intertribal organization comprised of twenty-seven
federally recognized Tribal Nations, ranging from Maine to Florida to
Texas. \1\ USET SPF is dedicated to enhancing the development of
federally recognized Tribal Nations, to improving the capabilities of
Tribal governments, and assisting USET SPF Member Tribal Nations in
dealing effectively with public policy issues and in serving the broad
needs of Indian people.
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\1\ USET SPF member Tribal Nations include: Alabama-Coushatta Tribe
of Texas (TX), Aroostook Band of Micmac Indians (ME), Catawba Indian
Nation (SC), Cayuga Nation (NY), Chitimacha Tribe of Louisiana (LA),
Coushatta Tribe of Louisiana (LA), Eastern Band of Cherokee Indians
(NC), Houlton Band of Maliseet Indians (ME), Jena Band of Choctaw
Indians (LA), Mashantucket Pequot Indian Tribe (CT), Mashpee Wampanoag
Tribe (MA), Miccosukee Tribe of Indians of Florida (FL), Mississippi
Band of Choctaw Indians (MS), Mohegan Tribe of Indians of Connecticut
(CT), Narragansett Indian Tribe (RI), Oneida Indian Nation (NY),
Pamunkey Indian Tribe (VA), Passamaquoddy Tribe at Indian Township
(ME), Passamaquoddy Tribe at Pleasant Point (ME), Penobscot Indian
Nation (ME), Poarch Band of Creek Indians (AL), Saint Regis Mohawk
Tribe (NY), Seminole Tribe of Florida (FL), Seneca Nation of Indians
(NY), Shinnecock Indian Nation (NY), Tunica-Biloxi Tribe of Louisiana
(LA), and the Wampanoag Tribe of Gay Head (Aquinnah) (MA).
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Safeguarding Tribal Objects of Patrimony Act of 2017
USET SPF registers our strong support for the STOP Act of 2017. The
protection of our sacred cultural items is essential to the survival of
our cultures. For too long, USET SPF Tribal Nations, and Tribal Nations
across the country, have faced the ongoing theft and commercial sale of
our sacred cultural objects. These sales have occurred both nationally
and internationally, despite current federal law aimed at protecting
items of cultural patrimony. The desecration of our cultural objects,
which often include human remains, must stop, and these items must be
returned to our people.
Stronger penalties are urgently needed to deter the illegal conduct
by which these sacred items are obtained and sold. The STOP Act of 2017
would make necessary changes to existing federal law by increasing
penalties, explicitly prohibiting exportation of cultural items, and
providing immunity for the voluntary repatriation of cultural objects.
Further, the STOP Act calls upon the federal government to form Tribal
working groups to advise and help federal agencies fully understand the
scope of these problems and how to solve them.
USET SPF believes that stronger penalties will discourage illegal
conduct and even lead to a dialogue with the holders of these cultural
objects that will enable their safe return home. The ability of Tribal
Nations to rebuild and create a healthy future depends, in large part,
on how we are able to understand our respective pasts. Our cultural and
sacred items provide a vital link to our history, our ceremonies, and
our way of life.
USET SPF commends Senator Martin Heinrich, and cosponsors, for the
introduction of the STOP Act and calls upon Congress for its swift
passage.
Independent Outside Audit of the Indian Health Service Act of 2017
The manager's amendment to S.465, The Independent Outside Audit of
the Indian Health Service Act of 2017, would require the Inspector
General (IG) of the Department of Health and Human Services (HHS) to
conduct an assessment of IHS' health care delivery systems and
financial management processes at IHS direct-care facilities. If the IG
does not conduct the assessment after 180 days, then HHS would be
required to enter into one or more contracts with an independent,
private entity to conduct the assessment. The assessment would focus on
several issue areas including: the demographics and health care needs
of the patient population, health care capabilities and resources,
staffing levels and productivity health care providers, and information
technology strategies, among others.
USET SPF appreciates Senator Rounds' and SCIA's efforts to address
the ongoing health care delivery issues within the Great Plains Area
and understands that S. 465 is a response to this crisis. However, we
have a number of concerns with both the legislation as introduced and
the Senator's proposed manager's amendment. USET SPF feels a broad,
one-size-fits-all approach to addressing these problems is unwarranted.
S. 465 seems to be a national response to regional, Area-specific
concerns. Not all twelve IHS Areas are experiencing these same types of
failures, and there are lessons to be learned from the best practices
they employ. Yet, S. 465 does not examine best practices across the IHS
system, and many of the issues the bill seeks to examine are currently
being reviewed or have previously been reviewed by the Government
Accountability Office (GAO) and other entities.
Effect on Self-Governance Facilities and Indian Health System
We acknowledge the Senator's work in responding to concerns with S.
465 by issuing a manager's amendment clarifying the assessment would
apply only to IHS-run facilities. However, it is important to note that
regardless of the assessment's scope, it has the potential to impact
the entire Indian Health System. For example, all Tribal Nations
utilize the Purchased/Referred Care (PRC) Program for the purchase of
care outside of IHS and Tribal facilities. Both the bill and the
manager's amendment seek a review of the authorities under which
outside care is furnished. GAO is currently reviewing this program and
providing its recommendations to IHS' PRC Workgroup. It is unclear,
then, whether the review prescribed by S. 465 is necessary and what
effect it might have on the implementation of GAO recommendations
occurring at the time of passage. In addition, the Senator has
indicated this bill is designed to lay the groundwork for additional
legislative action reforming IHS. Resulting legislation that seeks
changes in funding levels, formulas, or management processes is
unlikely to be limited to Direct Service units.
Assessment of the Indian Health Service
While USET SPF fully agrees that the devastating failures of the
Great Plains IHS Area must be accounted for and fully addressed, an
assessment of this magnitude, whether internal or external, is likely
to divert much needed funding and/or attention away from patient care,
a violation of the federal trust responsibility. IHS witness, Elizabeth
Fowler, included this concern in her written testimony. Vital
healthcare resources must be not be redirected to provide information
that, in many cases, has already been provided to Congress and the
public. We agree with IHS that 180 days is an insufficient timeframe
for an internal assessment.
Additionally, we continue to have concerns that an external entity
may not have experience with the Indian Health System, a requirement to
interpret any data collected. The Indian Health System, while in some
ways similar to Veteran's Affairs, is the only federal health care
system operating in fulfillment of a legal and moral trust
responsibility to its patients. Its purpose, goals, and processes
reflect the unique nature of this responsibility. USET SPF contends
that a majority of outside entities will not have the knowledge or
perspective required to properly assess IHS. The language of S. 465 and
its manager's amendment must reflect the need for any outside entity to
have expertise in Indian Health.
Continued Need for Tribal Consultation
In addition, it is problematic that this bill was introduced
without broad Tribal consultation. Legislation that attempts to address
issues within IHS through Congressional action, or otherwise, must be
accomplished through extensive Tribal consultation. It is similarly
troubling that neither the bill as written nor the manager's amendment
requires consultation with Tribal Nations during the assessment/audit
process or prior to the issuance of the resulting report. Tribal
Nations, the recipients of care provided by IHS, must provide guidance
during the assessment and have the opportunity to comment on the
results of any assessment. We must have the ability to dictate how the
information in the report will be presented and utilized.
Chronic Underfunding Contributes to Failures
Further, although USET SPF supports innovative legislative
solutions to improve the quality of service delivered by IHS, we
continue to underscore the obligation of Congress to meet its trust
responsibility by providing full funding to IHS. Any deficiencies that
could be identified within IHS through an assessment are, at least in
part, a direct result of the chronic underfunding of the Indian Health
System. Providing quality healthcare can only be accomplished when
programs within the Indian Health System are fully funded. USET SPF is
deeply concerned by continued rhetoric suggesting that increased
appropriations to IHS will not address problem areas. We continue to
assert that it is disingenuous to fund a health system at just under 60
percent of identified obligation and expect that system to operate
properly.
The U.S. has a legal and moral trust responsibility to Tribal
Nations that has been reaffirmed time and time again and are the result
of millions of acres of land and resources ceded to the U.S. to provide
benefits and services in perpetuity to AI/ANs. The most recent
reaffirmation of this trust responsibility was articulated in 2010
though the permanent reauthorization of the Indian Health Care
Improvement Act when, ``Congress declare[d] that it is the policy of
this nation, in fulfillment of its special trust responsibilities and
legal obligations to Indians to ensure the highest possible health
status for Indians and urban Indians and to provide all resources
necessary to effect that policy.'' Until Congress fully funds the IHS,
the Indian Health System will never be able to fully overcome its
challenges and fulfill its trust obligations. At a minimum, S. 465
should examine how the underfunding of IHS contributes to its
operational shortcomings.
USET SPF acknowledges the efforts of the Committee seeking to
address the long-standing challenges at IHS. However, we believe that
S. 465 is duplicative of current, governmental efforts and would
redirect vital funding to private entities and away from patient care.
While we stand with our brothers and sisters who are experiencing
failures in health care delivery, we ask that the Committee strongly
consider the national consequences of S. 465 and work with Tribal
Nations to come to a resolution that is beneficial for all IHS Areas.
USET SPF maintains that until Congress fully funds the IHS, the Indian
Health System will never be able to fully overcome its challenges and
fulfill its trust obligations.
______
Association on American Indian Affairs
November 22, 2017
Chairman John Hoeven,
Vice Chairman Tom Udall,
Hart Senate Office Building,
Washington, DC.
Re: Submission of Comments for November 8, 2017 STOP Act
Hearing, S. 1400
Dear Chairman Hoeven and Vice Chairman Udall:
The Association on American Indian Affairs (AAIA) is honored and
grateful for the opportunity to provide support to this bi-partisan
legislation that is necessary to the continued revitalization of Native
cultures and supports Tribal self-sufficiency and self-determination.
The Safeguard Tribal Objects of Patrimony Act of 2017 (STOP Act)
declares that the exportation of cultural items and archaeological
resources that are already protected from trafficking within the U.S.
is illegal. This assertion of law and policy through the STOP Act is
desperately needed.
AAIA absolutely supports the STOP Act. The AAIA is the oldest non-
profit organization working in Indian Country, founded in 1922 by
Indian policy reformists such as John Collier who sought to end
assimilationist and allotment policies of the late 19th and early 20th
Centuries. For at least the last 50 years, AAIA has worked to support
Tribal efforts for the protection of indigenous religions, languages,
sacred sites, and the return of ancestors, their burial items, and
other looted cultural items. AAIA assisted in the development and
drafting of the National Museum of the American Indian Act (NMAI Act)
and the Native American Graves Protection and Repatriation Act
(NAGPRA). ``Protection of Cultural Items'' is a significant AAIA
program. As part of this program, AAIA has worked with Tribal
governments and spiritual leaders, as well as attorneys and advocates,
to develop appropriate legislation to STOP the export of our indigenous
culture overseas.
The journey home of ancestors, funerary objects, objects of
cultural patrimony, sacred objects, and other archaeological items back
to their origin and into the possession and control of American Indian
Nations is a significant constitutional due process and Indian Commerce
Clause issue, as well as a human rights concern. The U.S. Congress has
already determined that federal law must support the special
government-to-government relationship with Tribes through protection
and repatriation of cultural items through NAGPRA. The U.S. Congress
has already documented the terrible history of how Native Americans
were dispossessed of their ancestors and cultural items when NAGPRA was
drafted and enacted. Yet, the commercial perspective regarding the sale
of ``tribal antiquities'' lags far behind US law and policy and is,
unsurprisingly, threatened by the current legislation that you have
proposed--and for which there has only been positive support from
Tribes, Indian organizations and Native peoples.
All opposition to this bill comes from commercial dealers that are
worried the exportation ban will eat into their sales of tribal
antiquities. The Antique Tribal Art Dealers Association (ATADA) and
non-profits supporting the agenda of commercial dealers including the
Committee for Cultural Policy (CPP) and the Global Heritage Alliance
(GHA), argue how the STOP Act is too broad, redundant and therefore
unnecessary, and will harm the sale of legitimate American Indian art.
Such comments from this opposition are misplaced and incorrect.
The STOP Act Applies to What Is Currently Protected Under Law
The STOP Act's exportation restriction applies only to what
Congress has deemed is illegal to traffic: NAGPRA ``cultural items,''
Archaeological Resources Protection Act (ARPA) ``archaeologic
resources,'' and the Antiquities Act ``objects of antiquity''.
Commercial dealers who are in possession of these items cannot traffic
them domestically already.
So why are commercial dealers concerned about their exportation?
Commercial dealers are in fact in possession of human remains, funerary
objects, objects of cultural patrimony, sacred items, archaeological
resources and objects of antiquity that were looted prior to the
enactment of these laws. But for the time period and tribal and federal
restrictions of current cultural heritage law, commercial dealers would
be in possession of illegally held cultural resource items that should
be protected by Tribal or federal governments.
This does not mean that the STOP Act is too broad; instead, it puts
the onus where it should be--on the commercial dealer--to prove that he
or she holds the item properly under current law. Any legitimate dealer
should have retained the history and context of an item--without it,
the item should not be marketable and should be presumed to be obtained
improperly. Commercial dealers are very sophisticated and are experts
on the items they hold so they can place a value on the item. Often,
unfortunately, more profit can be gained by the sale of items held
improperly.
While the STOP Act should place the burden on the holder of an item
to prove ownership at the border, the STOP Act does not present a
greater burden on the federal government or customs' agents because of
federal agency expertise in protecting against the importation of
cultural patrimony from other countries under the Convention on
Cultural Property Implementation Act (CPIA) and is trained well through
State Department programs.
In addition, the argument that Tribes will not give sacred
information about items is a red herring because such information is
not necessary to provide notice. One need only peruse a federal
register notice for the Department of Homeland Security, US Customs and
Border Protection and Department of the Treasury for import
restrictions imposed on certain cultural patrimony to clearly
understand that identifying Native American cultural resources will not
be a burden on the federal government, or for providing notice.
For example, 2013 FR 14183-14185 provides the listing of
archaeological resources protected against importation into the U.S.
from Belize and, as listed, includes broadly:
II. Stone--Objects in any type of stone, including jade,
greenstone, obsidian, flint, alabaster/calcite, limestone,
slate, or other.
A. Tools-forms such as points, blades, scrapers, hoes,
grinding stones, eccentrics and, others.
B. Jewelry-forms such as necklaces, earplugs, pendants,
beads, and others.
C. Monumental Stone Art-forms such as stelae, round altars,
architectural elements, and others.
D. Vessels-forms such as bowls and vases.
E. Figurines-forms such as human, animal, and mythological
creatures.
F. Masks-burial masks of variable stone composition.
Federal Register Notice for Belize attached hereto. There is no
need to describe particular detail, or other information that is deemed
sacred by Tribes. Again, the onus is on the person attempting to export
the item to prove proper ownership; the burden is not on Tribes to give
away sacred and protected information in order to give notice.
The Legitimate Sale and Ownership of American Indian Art
There have been no American Indian artists or American Indian
artist associations that have rallied against the STOP Act. In fact,
AAIA's work with American Indian artists has only found support for the
STOP Act because it will actually increase the market in legitimate
art. Only the commercial dealers--ATADA, CPP and GHA--argue that the
STOP Act will diminish the sale of American Indian art. American Indian
artists however, understand that American Indian art is easily
distinguishable from cultural items, archaeological resources and
objects of antiquity: simply, American Indian art is signed by the
artist--prohibited cultural items are not signed with an individual
artist's name. Neither have museums and federal agencies had this
concern when repatriating NAGPRA cultural items. This is important for
commercial dealers however, because they conflate ``art'' with
``antiquities'' and use these terms interchangeably in order to
legitimize the sale of ``antiquities'' as ``art.''
Commercial dealers are in possession of human remains, funerary
objects, objects of cultural patrimony, sacred objects and
archaeological resources that they proclaim a commercial interest in.
If those ``antiquities,'' which are distinguishable from ``art,'' are
held legitimately and in accordance with current law, then commercial
dealers should absolutely be able to prove it. If they are not, then
the item should not be marketable.
Improvements to the STOP Act
AAIA absolutely supports the passage of the STOP Act as soon as it
can be accomplished. However, it is worth noting that the STOP Act
provides Congress an opportunity to fix other issues with current
legislation. First, the Enhanced Penalty section could provide stronger
deterrence against trafficking and improper export if the intent
requirement was amended.
AAIA supports the increased penalty from 5 to 10 years. However, a
significant issue of 18 USC 1170 is the intent requirement: ``Whoever
knowingly sells. . . '' requires the individual to know that the act is
illegal. Often, this requirement of knowledge of illegality can be most
difficult to prove, and therefore the criminal penalty does not provide
a deterrence effect for the trafficking of cultural items. Revising the
penalty to include a general level of intent, such as intent to sell
(instead of the knowledge that the selling is illegal), and no
requirement of intent (strict liability), would support Congress'
efforts to end trafficking. These lower or no intent crimes could
provide misdemeanor or 1-2 year penalties, depending on scope of the
crime.
Second, the meaning of ``Native American'' under NAGPRA was
weakened by the Ninth Circuit case of Bonnichsen v. United States, 367
F.3d 864 (9th Cir. 2004). NAGPRA's definition of ``Native American''
``means of, or relating to, a tribe, people, or culture that is
indigenous to the United States.'' 25 U.S.C. 3001(9). The court found
that ``is indigenous'' meant that the human remains must be affiliated
with a present-day tribe. AAIA in concert with the NAGPRA Review
Committee, NAGPRA practitioners and Indian Tribes have sought to amend
this definition, which is used expressly in the STOP Act, to state that
Native American ``is or was'' indigenous to the United States in order
to effectuate the intent of NAGPRA to protect graves and repatriate
human remains.
Finally, outside of the STOP Act, AAIA and its membership are very
concerned that the US Department of Interior Secretary Zinke has
indefinitely suspended the NAGPRA Review Committee. This action
occurred in May 2017 and there has been no expectation from the
Department when the NAGPRA Review Committee will be able to fulfill its
statutory mandate. Congress mandated that the NAGPRA Review Committee
oversee and make decisions about the repatriation of human remains and
other cultural and sacred items. If the Review Committee doesn't meet,
museums and federal agencies are unable to fulfill certain legal
responsibilities, and tribes are further delayed from the return of
their ancestors and cultural items. The Act states that NAGPRA is based
on the unique government-to-government relationship the federal
government has with Tribes (sect. 3010). Zinke's suspension of all FACA
committees is an overbroad action; though his intention is to make sure
stakeholders have a say in what happens at Interior, his action is
actually preventing that with Tribes and NAGPRA. Even worse, it is my
understanding that a few Tribes have been working to get meetings about
the suspension of the NAGPRA Review Committee with the Secretary (or
his delegate on this issue), and have been rejected several times. I
hope that you will see to it that the NAGPRA Review Committee be
released from Secretary Zinke's suspension.
Thank you for your attention on these important matters that
support Tribal self-determination and self-sufficiency. If you have any
questions, please do not hesitate to contact me.
Yakoke--my Choctaw thanks,
Shannon Keller O'Loughlin, Executive Director.
______
Coquille Indian Tribe
North Bend OR, November 14, 2017
Chairman John Hoeven,
Vice Chairman Tom Udall,
Hart Senate Office Building,
Washington, DC.
Re: Support for the Safeguard Tribal Objects of Patrimony
Act of 2017
Dear Chairman Hoeven and Vice Chairman Udall:
Dai'sla! I am the Chairperson of the Coquille Indian Tribe. I write
you today to request that you support S. 1400, the Safeguard Tribal
Objects of Patrimony Act of 2017 (STOP Act). The Coquille is a
terminated-and-restored tribe headquartered in North Bend, Oregon. Our
ancestral territory includes large areas of the Southern Oregon coast
and interior, an area with a high percentage of federal land ownership
and many documented and still undocumented cultural resource locations.
Even though current law offers protections, the illicit trade in
Native American tangible cultural heritage continues to threaten tribal
cultural survival. Sacred and cultural items are illegally taken from
our peoples, threatening the restoration and maintenance of our
cultures and traditions and depriving us of the legacy we seek to leave
our future generations. At the same time, international black market
profiteers trade our irreplaceable cultural heritage, unfettered by
export restrictions.
The STOP act raises the stakes for people that violate the Native
American Graves Protection and Repatriation Act (NAGPRA) and prohibits
people from exporting items obtained in violation of three key
archeological and cultural resource laws: NAGPRA, the Archaeological
Resources Protection Act (ARPA), and the Antiquities Act. The STOP Act
does not change what acts are considered criminal--it merely imposes
higher penalties and stops traffickers from exporting contraband. The
STOP Act also enables the Federal Government to help to encourage the
return of tribal cultural heritage and engages a tribal working group
to provide input on implementation.
The STOP Act of 2017 will help end illegal trafficking in my
Tribe's tangible cultural heritage and restore possession of our sacred
and cultural items that have been separated from my community for so
long. I urge you to adopt the STOP Act and thank the Committee for its
attention to this important matter.
Sincerely,
Brenda Meade, Chairperson.
______
The Hopi Tribe
November 6, 2017
Chairman John Hoeven,
Vice Chairman Tom Udall,
Hart Senate Office Building,
Washington, DC.
Re: Support for S. 1400, the STOP Act
Dear Chairman Hoeven and Vice Chairman Udall:
The Hopi Tribe strongly supports S. 1400, the Safeguard Tribal
Objects of Patrimony Act of 2017 (STOP Act). The STOP Act will help
stem the pervasive and illegal trade of tribal cultural patrimony.
The Hopi people trace our history back thousands of years, making
Hopi one of the oldest living cultures in the world. Today, Hopi is a
vibrant and living culture. Hopi people, Hopisinoni, continue to
perform our ceremonial and traditional responsibilities in our ancient
language.
However, we face a new threat that strikes at the heart of our
culture. This new threat is the continued sale of Hopi sacred objects
across the United States and the globe. The issue is particularly bleak
in Paris, France where we have fought to stop these sales with both
public protests and lawsuits. We, unfortunately, have not succeeded.
It is our position that all of our sacred objects on auction were
illegally taken from our jurisdiction and subsequently sold in the
black market that thrives today. This illicit trafficking of tribal
sacred objects must stop.
Therefore, the Hopi Tribe supports your current effort to enact the
STOP Act, which will strengthen tribes' ability to protect their sacred
objects, increase penalties and explicitly prohibit the marketing and
trafficking of tribal sacred objects. We support the STOP Act's
increased penalties for violations of the Native American Graves
Protection and Repatriation Act (NAGPRA) and its explicit prohibition
on exporting items obtained in violation of NAGPRA, the Archaeological
Resources Protection Act (ARPA), and the Antiquities Act.
The STOP Act does not extend the reach of these three laws to
tribal cultural heritage that is not already protected, and thus it
does not criminalize any currently legal domestic activity.
Instead, it merely increases the deterrent effect of current law by
imposing heightened penalties and provides that traffickers may not
export their contraband. Additionally, the STOP Act creates a structure
for federal facilitation of the voluntary return of tribal cultural
heritage and engages tribes through a working group to provide input on
implementation.
We believe the STOP Act of 2017 will help end illegal trafficking
in Native American tangible cultural heritage and bring home our sacred
and cultural items that have been separated from our communities for
far too long. We support the prompt passage of the STOP Act and thank
the Committee for its attention to this important matter.
Respecfully,
Herman G. Honanie, Chairman.
______
The Navajo Nation
November 7, 2017
Chairman John Hoeven,
Vice Chairman Tom Udall,
Hart Senate Office Building,
Washington, DC.
Re: Support for the Safeguard Tribal Objects of Patrimony
Act of 2017
Dear Chairman Hoeven and Vice Chairman Udall:
1 write to support S 1400. the Safeguard Tribal Objects of
Patrimony Act of 2017 (``STOP Act''). The Navajo Nation thanks you for
introducing this forward thinking bill. This bill demonstrates the
incredible team work between Congress and the Executive Branch, and
their ability to come together for a bill that will enhance the
protection and repatriation of our human remains. funerary objects,
sacred objects and objects of cultural patrimony. In June 2016, the
23rd Navajo Nation Council passed a resolution in support of the
Safeguard Tribal Objects of Patrimony Act.
Despite the current protections afforded by the law, the illicit
trade in Native American tangible cultural heritage continues to pose a
serious threat to our cultural survival. Our sacred and cultural items
are illegally taken from our peoples. threatening the maintenance of
our cultures and traditions and depriving us of the legacy we seek to
leave our future generations. Meanwhile, a lucrative black market in
our tangible cultural heritage thrives, and without explicit export
restrictions many of our sacred and cultural items end up abroad.
We support the STOP Act's increased penalties for violations of the
Native American Graves Protection and Repatriation Act (NAGPRA) and its
explicit prohibition on exporting items obtained in violation of
NAGPRA, the Archaeological Resources Protection Act (ARPA), and the
Antiquities Act. It is important to note that the STOP Act does not
extend the reach of these three laws to tribal cultural heritage not
already specified. and thus does not criminalize any legal domestic
activity. Instead, it increases the deterrent effect of current law
while creating a structure for federal facilitation of the voluntary
return of tribal cultural heritage and engaging tribes through a
working group to provide input on implementation.
We believe the STOP Act of 2017 will help end illegal trafficking
in Native American tangible cultural heritage and bring home our sacred
and cultural items that have been separated from our communities for
far too long. Our cultural heritages are not objets d'art to be traded
as decorative items to be put in a collection case or on a mantle
piece. On the contrary, these are living and breathing objects are used
specifically for healing in our most sacred of ceremonies.
We support the swift passage of the STOP Act and thank the
Committee for its attention to this important matter. We are grateful
to you. to the Committee members, and to the Committee staff for your
work in drafting STOP. Your continued support for the recovery of
sacred tribal objects will do much to ensure the survival of our
People.
Sincerely,
Russell Begaye, President.
______
______
______
Muckleshoot Indian Tribe
Auburn. WA, November 6, 2017
Chairman John Hoeven,
Vice Chairman Tom Udall,
Hart Senate Office Building,
Washington, DC.
Re: Support for S. 1400--The Safeguard Tribal Objects of
Patrimony (STOP) Act of 2017
Dear Chairman Hoeven and Vice Chairman Udall:
The Muckleshoot Indian Tribe supports your Committee's upcoming
hearings to consider the STOP Act, and we will support our Senators
Murray and Cantwell to join as co-sponsors of this bill.
Opponents have claimed that the STOP Act would create new legal
uncertainties regarding sale and export of Native American art and
artifacts. However, the STOP Act is not intended to criminalize any
additional activities, but simply increases the potential penalties for
crimes under existing laws where cultural objects have been illegally
acquired, including theft from archaeological heritage sites on federal
or tribal lands. Investigation and federal prosecution of continuing
crimes against native culture and patrimony has been woefully
inadequate. And, significantly, the STOP Act encourages and creates
opportunity for federal agencies and tribal governments to cooperate in
identifying and seeking voluntary repatriation of cultural patrimony,
including in private collections.
We encourage the Committee to further authorize, prioritize, and
fund the tribes and federal law enforcement cooperative efforts to
bring ``thieves of time'' who are profiting from such crimes to
justice. Thank you for your consideration of this matter.
Respectfully,
Anita Mitchell, Vice Chairperson.
______
National Association of Tribal Historic Preservation
Officers (NATHPO)
Washington DC, November 7, 2017
Chairman John Hoeven,
Vice Chairman Tom Udall,
Hart Senate Office Building,
Washington, DC.
Re: Support for the Safeguard Tribal Objects of Patrimony
Act of 2017
Dear Chairman Hoeven and Vice Chairman Udall:
On behalf of the National Association of Tribal Historic
Preservation Officers (NATHPO), we express our strong support for S.
1400, the Safeguard Tribal Objects of Patrimony Act of 2017 (STOP Act).
NATHPO is a national organization of Tribal government officials who
implement federal and tribal preservation laws. Membership is limited
to federally-recognized Tribal government officials who are committed
to preserving, rejuvenating, and supporting American Indian, Alaska
Native, and Native Hawaiian cultures, heritage, and practices. Tribal
Historic Preservation Officers (THPOs) often conduct repatriation
activities for their respective tribe.
The illicit trade in Native American tangible cultural heritage
poses a grave threat to tribal cultural survival. Our sacred and
cultural items are illegally taken from our peoples, threatening our
cultures and traditions and deprive us of the legacy we seek to leave
our future generations. Meanwhile, a lucrative black market in our
tangible cultural heritage thrives, and without explicit export
restrictions many of our sacred and cultural items end up abroad.
We support the STOP Act's increased penalties for violations of the
Native American Graves Protection and Repatriation Act (NAGPRA) and its
explicit prohibition on exporting items obtained in violation of
NAGPRA, the Archaeological Resources Protection Act (ARPA), and the
Antiquities Act. The Act does not extend the reach of these three laws
to tribal cultural heritage that is not already protected, and thus it
does not criminalize any currently legal domestic activity. Instead, it
merely increases the deterrent effect of current law by imposing
heightened penalties and provides that traffickers may not export their
contraband. Additionally, the STOP Act creates a structure for federal
facilitation of the voluntary return of tribal cultural heritage and
engages tribes through a working group to provide input on
implementation.
We believe the STOP Act of 2017 will help end illegal trafficking
in Native American tangible cultural heritage and bring home our sacred
and cultural items that have for too long been separated from our
communities.
Sincerely,
D. Bambi Kraus, President.
______
23rd Navajo Nation Council
October 31, 2017
Chairman John Hoeven,
Vice Chairman Tom Udall,
Hart Senate Office Building,
Washington, DC.
Re: Support for the Safeguard Tribal Objects of Patrimony
Act of 2017
Dear Chairman Hoeven and Vice Chairman Udall:
On behalf of Navajo Nation Council, I write to express our strong
support for S. 1400, the Safeguard Tribal Objects of Patrimony
(``STOP'') Act of 2017. The illicit trade in Native American tangible
cultural heritage poses a threat to Native American cultural survival.
Our sacred and cultural items are illegally being taken from our
people, threatening the maintenance of our culture and tradition, and
depriving us of the legacy we seek to leave for our future generations.
Meanwhile, a lucrative market in our tangible cultural heritage
thrives, and without explicit export restrictions many of our sacred
and cultural items end up abroad.
The Navajo Nation is committed to preserving its cultural heritage.
In December 2014 and December 2015, members of the Navajo Nation
Council traveled to Paris, France to purchase and retrieve twenty-eight
(28) sacred Navajo masks from the Eve Auction House. These masks are
items of cultural patrimony and used in the Tleeji (Nightway ceremony).
We must continue to work together.
The Navajo Nation Council supports the STOP Act's increased
penalties for violations of the Native American Graves Protection and
Repatriation Act (NAGPRA) and its explicit prohibition on exporting
items obtained in violation of NAGPRA, the Archaeological Resources
Protection Act, and the Antiquities Act. The STOP act does not extend
the reach of these three laws to tribal cultural heritage that is not
already protected;it does not criminalize any currently legal domestic
activity. Instead, it merely increases the deterrent effect of current
law by imposing heightened penalties so that traffickers may not export
their contraband. Additionally, the STOP Act creates a structure for
federal facilitation of the voluntary return of items of tribal
cultural heritage to their rightful owners. The Act also engages Tribes
by establishing a working group to provide input on its implementation.
We believe the Safeguard Tribal Objects of Patrimony Act of 2017
will help to end illegal trafficking in Native American tangible
cultural heritage. It will also bring home our sacred and cultural
items that have been separated from our communities for far too long.
Sincerely,
LoRenzo Bates, Speaker, Office of the Speaker.
______
National Indian Head Start Directors Association
November 1, 2017
Chairman John Hoeven,
Vice Chairman Tom Udall,
Hart Senate Office Building,
Washington, DC.
Re: Support for the Safeguard Tribal Objects of Patrimony
Act of 2017
Dear Chairman Hoeven and Vice Chairman Udall:
On behalf of the National Indian Head Start Directors Association
(NIHSDA), I write to express our strong support for S. 1400, the
Safeguard Tribal Objects of Patrimony Act of 2017 (STOP Act). NIHSDA
has served as the voice for American Indian and Alaska Native Head
Start programs for over 30 years. Representing 150 Indian Head Start
and Early Head Start programs, NIHSDA advocates for the best interests
of Native children and their families.
Indian Head Start programs are on the front lines of cultural
preservation, providing an important resource for the transmission of
Native languages, cultures, and ways of life to the next generation.
Native cultures are grounded in ceremony, and the illegal trafficking
in our sacred and cultural items and of our Ancestors threatens our
very cultural survival. Unless our ways of life are protected, we lose
a big part of what Indian Head Start has to offer the young children
whom we serve. Yet, despite protections in current law, illegal
trafficking in Native cultural heritage continues. Meanwhile, a
lucrative black market in our tangible cultural heritage thrives, and
without explicit export restrictions many of our sacred and cultural
items end up abroad.
We support the STOP Act's increased penalties for violations of the
Native American Graves Protection and Repatriation Act (NAGPRA) and its
explicit prohibition on exporting items obtained in violation of
NAGPRA, the Archaeological Resources Protection Act (ARPA), and the
Antiquities Act. The STOP Act does not extend the reach of these three
laws to tribal cultural heritage that is not already protected, and
thus it does not criminalize any currently legal domestic activity.
Instead, it merely increases the deterrent effect of current law by
imposing heightened penalties and provides that traffickers may not
export their contraband. Additionally, the STOP Act creates a structure
for federal facilitation of the voluntary return of tribal cultural
heritage and engages tribes through a working group to provide input on
implementation.
Because of the central importance of our Native American cultural
heritage to the futures of our children, NIHSDA strongly supports the
STOP Act of 2017. We urge the prompt passage of the STOP Act and thank
the Committee for its attention to this important matter.
Respectfully,
Lee Turney, President.
______
Yurok Tribe
November 2, 2017
Chairman John Hoeven,
Vice Chairman Tom Udall,
Hart Senate Office Building,
Washington, DC.
Re: Support for the Safeguard Tribal Objects of Patrimony
Act of 2017
Aiy-ye-kwee' Chairman Hoeven and Vice Chairman Udall:
On behalf of the Yurok Tribe, I write to express our strong support
for S. 1400, the Safeguard Tribal Objects of Patrimony Act of 2017
(STOP Act). The Yurok Tribe is a natural resources based tribe located
in rural Northern California. We are the largest federally recognized
tribe in California, with roughly 6,200 enrolled tribal members. The
Yurok Reservation represents a small remnant of our Ancestral
Territory, straddling the Klamath River one mile either side from the
mouth at the Pacific Ocean to its confluence with the Trinity River,
approximately 44 miles upstream. These are the lands Yurok people have
inhabited since time immemorial. There are many culturally sensitive
sacred areas, objects and graves of our ancestors remaining in known
and unrecovered locations across our lands. Yuroks are deeply spiritual
people, with a robust Cultural Department, including an active Tribal
Historic Preservation Office, NAGPRA Office and Committee, Cultural
Collections, Archeology, and Culture Committee. We follow well defined
Tribal laws as well as traditional rules for the continued protection
and practice of our traditions and customs.
Despite protections in current law, the illicit trade in Native
American tangible cultural heritage continues to pose a grave threat to
tribal cultural survival. Our sacred and cultural items are illegally
taken from our peoples, threatening the maintenance of our cultures and
traditions and depriving us of the legacy we seek to leave our future
generations. Meanwhile, a lucrative black market in our tangible
cultural heritage thrives, and without explicit export restrictions
many of our sacred and cultural items end up abroad.
We support the STOP Act's increased penalties for violations of the
Native American Graves Protection and Repatriation Act (NAGPRA) and its
explicit prohibition on exporting items obtained in violation of
NAGPRA, the Archaeological Resources Protection Act (ARPA), and the
Antiquities Act. The STOP Act does not extend the reach of these three
laws to tribal cultural heritage that is not already protected, and
thus it does not criminalize any currently legal domestic activity.
Instead, it merely increases the deterrent effect of current law by
imposing heightened penalties and provides that traffickers may not
export their contraband. Additionally, the STOP Act creates a structure
for federal facilitation of the voluntary return of tribal cultural
heritage and engages tribes through a working group to provide input on
implementation.
We believe the STOP Act of 2017 will help end illegal trafficking
in Native American tangible cultural heritage and bring home our sacred
and cultural items that have been separated from our communities for
far too long. We support the prompt passage of the STOP Act and thank
the Committee for its attention to this important matter.
Sincerely,
Thomas P. O'Rourke, Sr. Chairman.
______
Affiliated Tribes of Northwest Indians
November 8, 2017
Chairman John Hoeven,
Vice Chairman Tom Udall,
Hart Senate Office Building,
Washington, DC.
Re: Support for the Safeguard Tribal Objects of Patrimony
Act of 2017
Dear Chairman Hoeven and Vice Chairman Udall:
On behalf of the Affiliated Tribes of Northwest Indians (ATNI), I
write to express our strong support for S. 1400, the Safeguard Tribal
Objects of Patrimony Act of 2017 (STOP Act). Formed in 1953 to serve
Indian peoples, ATNI is a regional organization comprised of American
Indians, Alaska Natives, and sovereign nations in the states of
Washington, Idaho, Oregon, Montana, Nevada, California, and Alaska.
Preservation of tribal cultural values is one of our primary goals
and objectives, and the illicit trade in Native American tangible
cultural heritage poses a grave threat to our cultural survival. Sacred
and cultural objects from Northwest Nations are highly sought after and
are often illegally trafficked in a lucrative black market. Many people
see the inherent beauty in our cultural objects and seek to collect
them for their artistic value alone, not understanding that these
objects are so much more than beautiful to us. The protection of our
tangible cultural heritage is essential for our cultural survival.
Current federal law aims to protect Native American tangible cultural
heritage, but it remains insufficient to deter these items' removal,
export, and sale or to provide a means of securing repatriation of
stolen items.
Thus, ANTI supports the STOP Act's increased penalties for
violations of the Native American Graves Protection and Repatriation
Act (NAGPRA) and its explicit prohibition on exporting items obtained
in violation of NAGPRA, the Archaeological Resources Protection Act
(ARPA), and the Antiquities Act. The STOP Act does not extend the reach
of these three laws to tribal culturalheritage that is not already
protected, and thus it does not criminalize any currently legal
domestic activity. Instead, it merely increases the deterrent effect of
current law by imposing heightened penalties and provides that
traffickers may not export their contraband. Additionally, the STOP
Actcreates a structure for federal facilitation of the voluntary return
of tribal cultural heritage and engages tribes through a working group
to provide input on implementation.ANTI believes the STOP Act of 2017
will help end illegal trafficking in Native American tangible cultural
heritage and bring home the sacred and cultural items that have been
separated from tribal communities for too long. We urge the prompt
passage of the STOP Act and thank the Committee for itsattention to
this important matter.
Sincerely,
Leonard Forsman, President.
______
Port Gamble S'Klallam Tribe
November 1, 2017
Chairman John Hoeven,
Vice Chairman Tom Udall,
Hart Senate Office Building,
Washington, DC.
Re: Support for the Safeguard Tribal Objects of Patrimony
Act of 2017
Dear Chairman Hoeven and Vice Chairman Udall:
On behalf of the Port Gamble S'Klallam Tribe I write to express our
strong support for S. 1400, the Safeguard Tribal Objects of Patrimony
Act of 2017 (STOP Act). The Port Gamble S'Klallam Tribe, originally
known as the Nux Skiai Yem or Strong People, are descendants of the
Salish people who have been well-established in the Puget Sound basin
and surrounding areas since 2400 B.C. In the late 1930s, the Port
Gamble S'Klallam reservation, located on the northern tip of the Kitsap
Peninsula in Washington State, was established. Many of the Tribe's
members, who total about one thousand, still live there today.
Despite protections in current law, the illicit trade in Native
American tangible cultural heritage continues to pose a grave threat to
tribal cultural survival. Our sacred and cultural items are illegally
taken from our peoples, threatening the maintenance of our cultures and
traditions and depriving us of the legacy we seek to leave our future
generations. Meanwhile, a lucrative black market in our tangible
cultural heritage thrives, and without explicit export restrictions
many of our sacred and cultural items end up abroad.
We support the STOP Act's increased penalties for violations of the
Native American Graves Protection and Repatriation Act (NAGPRA) and its
explicit prohibition on exporting items obtained in violation of
NAGPRA, the Archaeological Resources Protection Act (ARPA), and the
Antiquities Act. The STOP Act does not extend the reach of these three
laws to tribal cultural heritage that is not already protected, and
thus it does not criminalize any currently legal domestic activity.
Instead, it merely increases the deterrent effect of current law by
imposing heightened penalties and provides that traffickers may not
export their contraband. Additionally, the STOP Act creates a structure
for federal facilitation of the voluntary return of tribal cultural
heritage and engages tribes through a working group to provide input on
implementation.
We believe the STOP Act of 2017 will help end illegal trafficking
in Native American tangible cultural heritage and bring home our sacred
and cultural items that have been separated from our communities for
far too long. We support the prompt passage of the STOP Act and thank
the Committee for its attention to this important matter.
Sincerely,
Jeromy Sullivan, Chairman.
______
National Congress of American Indians
November 2, 2017
Chairman John Hoeven,
Vice Chairman Tom Udall,
Hart Senate Office Building,
Washington, DC.
Re: Support for the Safeguard Tribal Objects of Patrimony
Act of 2017
Dear Chairman Hoeven and Vice Chairman Udall:
On behalf of the National Congress of American Indians (NCAI), the
oldest, largest, and most representative organization of American
Indian and Alaska Native tribal governments, we write to express our
full support for S. 1400, the Safeguard Tribal Objects of Patrimony Act
of 2017.
NCAI has two resolutions that support the intent of the STOP Act.
The resolutions call on the United States to address the issues of the
theft and illegal sale of tribal cultural heritage and assist
international repatriation efforts (SD-15-075 and SAC-12-008). The
intent of the STOP Act, to strengthen federal laws to protect our
sacred and cultural items, is one of vital importance to NCAI and
tribes all across Indian Country.
In particular, NCAI supports the STOP Act's increased penalties for
violations of the Native American Graves Protection and Repatriation
Act (NAGPRA) and its explicit prohibition on exporting items obtained
in violation of NAGPRA, the Archaeological Resources Protection Act
(ARPA), and the Antiquities Act. The STOP Act does not criminalize any
currently legal domestic activity because it does not extend the reach
of these existing laws. This legislation increases the deterrent effect
of current law with heightened penalties and provides that traffickers
may not export their contraband. Additionally, the STOP Act creates a
much needed structure for the voluntary return of tribal cultural
heritage and engages tribes through a working group to provide input on
implementation. Setting up this Federal voluntary return structure and
working group will ensure that these important objects return to the
tribes to which they belong.
NCAI believes the STOP Act of 2017 will help end illegal
trafficking in Native American tangible cultural heritage and bring
home our sacred and cultural items that have been separated from tribal
communities for too long. We support the Committee's consideration of
the STOP Act and encourage the Committee to work to pass this important
legislation.
Jaqueline Pata, Executive Director.
Attachments
The National Congress of American Indians--Resolution #SAC-12-008
title: support for international repatriation
WHEREASwe, the members of the National Congress of American Indians
of the United States, invoking the divine blessing of the Creator upon
our efforts and purposes, in order to preserve for ourselves and our
descendants the inherent sovereign rights of our Indian nations, rights
secured under Indian treaties and agreements with the United States,
and all other rights and benefits to which we are entitled under the
laws and Constitution of the United States, to enlighten the public
toward a better understanding of the Indian people, to preserve Indian
cultural values, and otherwise promote the health, safety and welfare
of the Indian people, do hereby establish and submit the following
resolution; and
WHEREASthe National Congress of American Indians (NCAI) was
established in 1944 and is the oldest and largest national organization
of American Indian and Alaska Native tribal governments; and
WHEREASNCAI member tribes, Native nations, and indigenous
communities globally are facing a human rights violation whereby Native
American ancestral remains, funerary objects, sacred objects, and
objects of cultural patrimony were exhumed, excavated, stolen,
exchanged, studied, or taken under duress, without the free, prior, and
informed consent of Native nations and moved beyond the boundaries of
Native Nations and the United States; and
WHEREASthis human rights violation is perpetuated through the
continued possession, display, study, or profit from our ancestral
remains, funerary objects, sacred objects, and objects of cultural
patrimony; and
WHEREASthe U.N. Declaration on the Rights of Indigenous Peoples has
been signed by all nation-states of the U.N. and it supports
international repatriation in Article 12, which states:
States shall seek to enable the access and/or repatriation of
ceremonial objects and human remains in their possession
through fair, transparent and effective mechanisms developed in
conjunction with Indigenous peoples concerned; and
WHEREASthe United States has consistently supported Native nations
seeking to repatriate Native American ancestral remains, funerary
objects, sacred objects, and objects of cultural patrimony, through
U.S. Congress when it passed the NMAI Act in 1989 and the NAGPRA in
1990, and international repatriation has more recently been supported
by the United States in a Statement of the United States to the Working
Group to Prepare the Draft American Declaration on the Rights of
Indigenous Peoples and the Organization of American States in 2008,
which stated:
Indigenous peoples should be able to maintain, protect, and
have access to their religious and cultural sites and should
have the collective right to repatriation of their human
remains, ceremonial object and cultural patrimony; and
WHEREASan estimated 1-2 million Native American ancestral remains,
funerary objects, sacred objects, and objects of cultural patrimony
currently exist in international repositories; and
WHEREASNative nations are experiencing difficulty locating
ancestral remains, funerary objects, sacred objects, and objects of
cultural patrimony in international repositories due to various
reasons, such as misidentification, no listed cultural affiliation,
lack of available records from international repositories to Native
nations; and no presently existing centralized notification system to
Native nations; and
WHEREASthe NCAI member tribes and the national community of Native
nations have prioritized the need for the investigation and
implementations of legal protections to ensure the repatriation of all
ancestral remains, funerary objects, sacred objects, and objects of
cultural patrimony taken, exhumed, excavated, exchanged, studied, and
otherwise residing in repositories worldwide.
NOW THEREFORE BE IT RESOLVED, that the NCAI hereby supports the
NCAI member tribes and other Native nations in their efforts to
repatriate from international repositories; and
BE IT FURTHER RESOLVED, that the NCAI requests that the State
Department, U.S. embassies, U.S. Senators, U.S. Representatives, and
other U.S. governmental bodies make themselves available to assist
Native nations in international repatriations, and that the U.S.
government takes immediate action after consultation with Native
nations to adequately address this five hundred-year-old, ongoing human
rights issue; and
BE IT FURTHER RESOLVED, that the NCAI will advocate on behalf of
its member tribes and other Native nations to ensure international
repatriation is addressed nationally and internationally; and
BE IT FURTHER RESOLVED, that the NCAI urges President Obama and
future Presidents of the United States of American to call on Congress
to address international repatriation; and
BE IT FURTHER RESOLVED, that the NCAI will urge the U.N. to convene
a special session and implement a formalized Working Group or
Subcommittee comprised of indigenous community members to formally look
into this human rights issue; and
BE IT FURTHER RESOLVED, NCAI will work with the Association on
American Indian Affairs (AAIA) and other organizations to collaborate
with Native nations in support of international repatriation; and
BE IT FINALLY RESOLVED, that this resolution shall be the policy of
NCAI until it is withdrawn or modified by subsequent resolution.
The National Congress of American Indians--Resolution #SD-15-075
title: support the efforts to stop the theft and illegal sale of pueblo
cultural patrimony items both domestically and abroad
WHEREAS we, the members of the National Congress of American
Indians of the United States, invoking the divine blessing of the
Creator upon our efforts and purposes, in order to preserve for
ourselves and our descendants the inherent sovereign rights of our
Indian nations, rights secured under Indian treaties and agreements
with the United States, and all other rights and benefits to which we
are entitled under the laws and Constitution of the United States, to
enlighten the public toward a better understanding of the Indian
people, to preserve Indian cultural values, and otherwise promote the
health, safety and welfare of the Indian people, do hereby establish
and submit the following resolution; and
WHEREASthe National Congress of American Indians (NCAI) was
established in 1944 and is the oldest and largest national organization
of American Indian and Alaska Native tribal governments; and
WHEREAScultural patrimony is vital to the continued existence and
maintenance of tribal culture and ways of life; and
WHEREAStribes have been disproportionately affected by the theft,
illegal sale, and alienation of their cultural patrimony; and
WHEREASin recent years the Pueblos of Acoma, Laguna, and the Hopi
Tribes have been particularly targeted by illegal traffickers; and
WHEREASthe illegal sale of these items of cultural patrimony have
occurred domestically and internationally; and
WHEREASthe sale of tribal cultural patrimony is in violation of
Federal and Tribal laws; and
WHEREASthe nature and descriptions of all tribal cultural patrimony
is sensitive and to be treated with respect and confidentiality as
appropriate.
NOW THEREFORE BE IT RESOLVED, that the National Congress of
American Indians (NCAI) hereby supports the efforts of all tribal
nations to stop the theft and illegal sale of all tribal cultural
patrimony both domestically and abroad; and
BE IT FURTHER RESOLVED, that NCAI calls upon the Secretaries of the
Department of the Interior, the Department of Justice, the Department
of State, and the Attorney General of the United States to consult with
the tribal nations in addressing the important issue of the theft and
illegal sale of tribal cultural patrimony domestically and abroad, and
to take affirmative action to stop these illegal practices; and
BE IT FINALLY RESOLVED, that this resolution shall be the policy of
NCAI until it is withdrawn or modified by subsequent resolution.
______
Wiyot Tribe
November 3, 2017
Chairman John Hoeven,
Vice Chairman Tom Udall,
Hart Senate Office Building,
Washington, DC.
Re: Support for the Safeguard Tribal Objects of Patrimony
Act of 2017
Dear Chairman Hoeven and Vice Chairman Udall:
On behalf of Wiyot Tribe, I write to express our strong support for
S. 1400, the Safeguard Tribal Objects of Patrimony Act of 2017 (STOP
Act). The Wiyot Tribe has been on the Northern California Coast since
time immemorial. We have been protectors and stewards of lands that we
live on. Which was once the home of our ancestors Giant Redwood
Forests.
Despite protections in current law, the illicit trade in Native
American tangible cultural heritage continues to pose a grave threat to
tribal cultural survival. Our sacred and cultural items are illegally
taken from our peoples, threatening the maintenance of our cultures and
traditions and depriving us of the legacy we seek to leave our future
generations. Meanwhile, a lucrative black market in our tangible
cultural heritage thrives, and without explicit export restrictions
many of our sacred and cultural items end up abroad.
We support the STOP Act's increased penalties for violations of the
Native American Graves Protection and Repatriation Act (NAGPRA) and its
explicit prohibition on exporting items obtained in violation of
NAGPRA, the Archaeological Resources Protection Act (ARPA), and the
Antiquities Act.
The STOP Act does not extend the reach of these three laws to
tribal cultural heritage that is not already protected, and thus it
does not criminalize any currently legal domestic activity. Instead, it
merely increases the deterrent effect of current law by imposing
heightened penalties and provides that traffickers may not export their
contraband. Additionally, the STOP Act creates a structure for federal
facilitation of the voluntary return of tribal cultural heritage and
engages tribes through a working group to provide input on
implementation.
We believe the STOP Act of 2017 will help end illegal trafficking
in Native American tangible cultural heritage and bring home our sacred
and cultural items that have been separated from our communities for
far too long. We support the prompt passage of the STOP Act and thank
the Committee for its attention to this important matter.
Sincerely,
Ted Hernandez, Cultural Director.
______
Oglala Sioux Tribe
November 7, 2017
Chairman John Hoeven,
Vice Chairman Tom Udall,
Hart Senate Office Building,
Washington, DC.
Re: Support for the Safeguard Tribal Objects of Patrimony
Act of 2017
Dear Chairman Hoeven and Vice Chairman Udall:
On behalf of the Oglala Sioux Tribe, I write to express our strong
support for S. 1400, the Safeguard Tribal Objects of Patrimony Act of
2017 (STOP Act). Our Tribe is part of the Great Sioux Nation with
treaties with the United States of America. Our cultural patrimony and
heritage is sacred to us. Just less than two weeks ago, we were forced
to take swift action to prevent our sacred objects and items of
cultural patrimony from being sold at a public auction.
Despite protections in current law, the illicit trade in Native
American tangible cultural heritage continues to pose a grave threat to
tribal cultural survival. Our sacred and cultural items are illegally
taken from our peoples, threatening the maintenance of our cultures and
traditions and depriving us of the legacy we seek to leave our future
generations. Meanwhile, a lucrative black market in our tangible
cultural heritage thrives, and without explicit export restrictions
many of our sacred and cultural items end up abroad.
We support the STOP Act's increased penalties for violations of the
Native American Graves Protection and Repatriation Act (NAGPRA) and its
explicit prohibition on exporting items obtained in violation of
NAGPRA, the Archaeological Resources Protection Act (ARPA), and the
Antiquities Act. The STOP Act does not extend the reach of these three
laws to tribal cultural heritage that is not already protected, and
thus it does not criminalize any currently legal domestic activity.
Instead, it merely increases the deterrent effect of current law by
imposing heightened penalties and provides that traffickers may not
export their contraband. Additionally, the STOP Act creates a structure
for federal facilitation of the voluntary return of tribal cultural
heritage and engages tribes through a working group to provide input on
implementation.
We believe the STOP Act of 2017 will help end illegal trafficking
in Native American tangible cultural heritage and bring home our sacred
and cultural items that have been separated from our communities for
far too long. We support the prompt passage of the STOP Act and thank
the Committee for its attention to this important matter.
Sincerely,
Troy ``Scott'' Weston, President.
______
Response to Written Questions Submitted by Hon. Tom Udall to
Hon. Kurt Riley
Question 1. You have said that the Committee should not think of
sacred and ceremonial objects in property rights in terms like
``title'' and ``ownership,'' and that it is important to move beyond
the Western view of property rights and consider this issue as one of
human and culture rights. Could you elaborate on this idea?
Answer. Items of tribal cultural heritage, including cultural
patrimony and sacred objects, are so important to a tribe's culture and
wellbeing that they are considered to belong to the tribe as a whole.
All cultures possess such items. For the Pueblo of Acoma (Pueblo), our
items of cultural heritage have significant and tangible roles to play
in sustaining our culture, our traditional calendar, our societies, our
families, and our way of life. Many of these items are considered to
possess a life of their own, and specific Pueblo members are tasked as
their caretakers, caring for the items for the benefit of the entire
Pueblo. Many of these items are of paramount importance, as they are
understood to have both physical and metaphysical roles for the
continuity of our people and the world. Our cultural heritage also
helps us honor and uphold our values and to teach those values to our
young people. So important are these items of cultural heritage that,
under Pueblo traditional law, no one person may own them. Rather, they
belong to the community as a whole, and their caretakers cannot sell
them or take them from the Pueblo. It is impossible to fully
communicate the harm and pain that removal of these items brings, and
the damage their removal causes to our people.
The global community already thinks of cultural heritage items in
terms of human rights when considering those belonging to countries.
This is evidenced by the outrage Americans would feel if the United
States Constitution were sold. It is also evidenced by the
international norms surrounding items of cultural heritage. For
example, a 1970 international treaty entitled the UNESCO Convention on
the Means of Prohibiting and Preventing the Illicit Import, Export and
Transfer of Ownership of Cultural Property, which the United States has
signed onto, obligates its signatories to protect each other's cultural
heritage when exportation of such cultural heritage is illegal in the
originating country. The UN Declaration on the Rights of Indigenous
Peoples, which the United States supports, recognizes Indigenous
peoples' right to maintain their cultural property and ceremonial
objects. It is time to bestow the same human rights concepts on Indian
tribes' cultural heritage within the domestic United States legal
framework.
Even under existing federal statutes, Indian tribes possess
property rights to protected tribal cultural heritage. When an item
qualifies for protection under the Native American Graves Protection
and Repatriation Act (NAGPRA), 25 U.S.C. 3001-3013, 18 U.S.C.
1170, the Archaeological Resources Protection Act (ARPA), 16 U.S.C.
470aa-470m, or 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 item
cannot be said to legally belong to its possessor. Instead, these
statutes provide for tribal ownership. See 25 U.S.C. 3002; 16 U.S.C.
470gg(b), (c). Tribal law also often provides for tribal ownership.
Question 1a. Do you believe that passing the STOP Act will send a
strong message that cultural items are different and warrant additional
legal protections?
Answer. Passage of the STOP Act will send a clear message to the
collector community, Indian tribes, and other countries that the United
States understands its duty to protect items of tribal cultural
heritage and will take measures to carry out this duty.
The STOP Act will strengthen existing federal statutes--NAGPRA,
ARPA, and the Antiquities Act--that already signal the United States'
understanding of the importance of tribal cultural heritage. It will
also provide the framework for voluntary repatriation outside of the
prosecutorial context, indicating the Federal Government's interest in
facilitating return of tribal cultural heritage items as its main
priority. In fact, in response to the introduction of the STOP Act, the
Antique Tribal Art Dealers Association (ATADA) has already reacted by
creating and implementing a voluntary repatriation program of its own.
Significantly, the STOP Act will also send a clear message
internationally regarding the importance of facilitating the return of
tribal cultural heritage that has been trafficked abroad. The 1970
UNESCO Convention discussed above is not triggered unless exportation
of the item of cultural heritage is illegal in the originating country.
The United States is a signatory to the treaty and has taken steps
domestically to uphold its treaty obligations. The Convention on
Cultural Property Implementation Act (CPIA), 19 U.S.C. 2601-2613,
adopted import restrictions for protected cultural heritage from other
countries. The CPIA, however, does not implement the exportation
restrictions called for in the treaty. The CPIA does not make illegal
the exportation of cultural heritage from the United States, including
tribal cultural heritage. Thus, this provides other countries with an
argument that the United States lacks the necessary exportation
restrictions to trigger obligations under the treaty. The STOP Act's
explicit prohibition on exporting already-protected items of tribal
cultural heritage clearly signals to the international community that
these items warrant legal protections.
Question 2. Since 1922, Santa Fe's Indian Market draws hundreds of
Native artists and thousands of visitors to the city every year.
Buyers, collectors, and gallery owners come to Indian Market to take
advantage of the opportunity to buy directly from Native artists. For
some, sales from Indian Market amount can amount to an artist's entire
annual income. Are you concerned about the impact the STOP Act could
have on Native artists' livelihoods?
Answer. The STOP Act will not negatively impact Native artisans'
livelihoods. The STOP Act does not discourage all sales of Native art.
It does not create protections or penalties for any object that is not
already protected under existing federal law--meaning these items were
already illegal to sell domestically. The STOP Act's increased
penalties do not extend beyond items protected under NAGPRA, and its
export restriction does not extend beyond items protected under NAGPRA,
ARPA, and the Antiquities Act. The Native artisan and collector
communities have been operating under these standards for decades.
It is important to understand that existing federal statutes
protect only specific types of items associated with tribes. Most items
are not protected. NAGPRA, ARPA, and the Antiquities Act have specific
statutory standards for the items they protect. Generally, the items
must meet a threshold level of cultural significance and must have been
taken from specific lands within specific time periods. Although tribes
are involved in determining which items are protected, they cannot
claim items are protected if they do not meet these statutory
standards.
The existing statutory standards within NAGPRA, ARPA, and the
Antiquities Act are sufficiently clear, and they embody the clear
intention of Congress. For example, when Congress enacted NAGPRA, it
already considered the impact the statutory definitions in NAGPRA may
have on tribal art, and it set forth its firm intention for statutes
like NAGPRA to be a function of tribal understanding of an object's
ongoing cultural and religious significance. See, e.g. S. Rep. No. 101-
473, at 8-10 (1990). Courts have routinely upheld these standards, even
when law enforcement officials or courts look to tribal law or tribal
representatives to determine whether specific items meet the standards.
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 Antiquities Act); but see United States
v. Diaz, 499 F.2d 113 (9th Cir. 1974) (finding Antiquities Act
unconstitutionally vague). Providing even further protection to
collectors, prosecution is not available unless the defendant knowingly
engaged in activity made illegal under NAGPRA or ARPA. See 18 U.S.C.
1170; 16 U.S.C. 470ee(d). And those engaging in the trafficking of
cultural heritage items are expected to possess a certain level of
knowledge regarding whether an item qualifies as protected. See, e.g.,
United States v. Tidwell, 191 F.3d 976, 980 (9th Cir. 1999); United
States v. Carrow, 119 F.3d 796, 803-04 (10th Cir. 1997). This is no
different than other situations where persons who hold themselves out
as having specialized knowledge are held to a higher standard of care.
The STOP Act's voluntary repatriation provision, which is
structured to apply more broadly to items associated with tribes, does
not have legal consequences. Instead, it merely provides a process for
those who wish to return an item to a tribe. That this process is
available will not legally affect whether a particular item qualifies
as protected under NAGPRA, ARPA, or the Antiquities Act, including as
amended by the STOP Act. Thus, it should not have negative impacts on
the Native art market.
However, some have proposed a certification or permitting system
for implementing the STOP Act's export restriction such that issues
related to whether a particular object is federally protected do not
require resolution at the border. We could support this. Creating such
a system could provide more clarity to exporters as well as to Border
Protection Customs agents about which objects are protected. Such a
system is also called for by the 1970 UNESCO Convention. However, if a
certification or permitting system is created, tribes should be
involved in the drafting process. If the STOP Act is not amended to add
such a provision, the STOP Act as drafted already authorizes the
Attorney General and the Secretary of Homeland Security, in
consultation with the Secretary of the Interior, to prescribe rules and
regulations to carry out the export restriction. Any guidelines
necessary for Border Protection Customs agents could be created through
such rules and regulations.
Question 3. Often many of the cultural items found in French
auction houses or other international markets are excavated unlawfully
in remote areas on both public and tribal lands. The Native American
Grave Protection and Repatriation Act (NAGPRA) and the Archeological
Resources Protection Act were designed to stop the trafficking of
cultural items domestically, but do not protect the lands where these
items are found. Are certain sites, such as Bears Ears and Chaco
Canyon, worthy of increased federal protections?
Answer. In addition to items of tribal cultural heritage holding
great cultural significance to tribes, locations themselves can also be
very important to tribes. One way to protect tribes' sacred sites is
through the Antiquities Act, which gives the Federal Government
authority to declare certain areas with historic significance national
monuments and to provide them federal protections as such. 54 U.S.C.
320301. Another method for providing protection is placing the sacred
site, if it is found eligible to be listed, on the National Register of
Historic Places under the National Historic Preservation Act. 54 U.S.C.
302706. These statutes are part of the federal government's framework
for protecting tribes' cultural heritage, which is required by the
federal government's trust responsibility to Indian tribes, and they
must be implemented faithfully.
Additionally, NAGPRA, ARPA, and the Antiquities Act generally do
not protect items removed from land that is not federal or tribal. See
25 U.S.C. 3002(a); 16 U.S.C. 470ee(a); 18 U.S.C. 1866(b). All
land within the United States once belonged to tribes, and our sacred
sites and vast tracts of our cultural landscape are therefore spread
throughout the country. Restrictions on movement and access to key
resource areas and holy places for traditional cultural practices have
limited our ability to protect these areas. Much of this land is now in
state or private hands, and the sacred sites and items of cultural
heritage on this land are not federally protected. Our limitations in
accessing these places do not make them any less important for our
communities. Thus, finding ways to protect these areas is doubly
important.
______
Response to Written Questions Submitted by Hon. Tom Udall to
Elizabeth A. Fowler
Oversight and Accountability
Question 1. In your testimony, you stated that the Indian Health
Service (IHS) has access to information that federal accountability
organs needs in order to provide effective oversight of IHS. S. 465,
however, would allocate federal taxpayer dollars to hire private
contractors to conduct external audits of IHS to obtain this exact same
information, \1\ which is both wasteful and redundant. You additionally
agreed to provide that information to the Senate Committee on Indian
Affairs within 30 days. Please provide information on the current IHS
user population, and projected service population, by Service Area and
Service Unit.
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\1\ S. 465, 115th Cong. 2(d)(1), (2), and (15).
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Answer. Appendix 1 is a table of the current IHS user population
estimates by service area and service unit for Fiscal Year (FY) 2017.
The user population is defined as those patients that receive direct or
contract healthcare services from an inpatient stay, outpatient visit,
or a direct dental visit at an IHS or tribal facility during the
previous three years. The user must also live within a Purchased
Referred Care Delivery Area (PRCDA) to be counted in the user
population.
Appendix 2 \2\ is a table of the IHS projected service population
that is currently based on the 2000 census bridged-race file and
consists of American Indians and Alaska Natives (AI/ANs) identified to
be eligible for IHS services. The service population is estimated by
counting AI/ANs who reside in a PRCDA and constitutes approximately 58
percent of all AI/ANs residing in the United States. These people may
or may not use IHS health services. The ratio (58 percent) is obtained
by dividing the service population by the total United States AI/AN
population (service plus non-service), which data is provided in
Appendix 3 \3\.
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\2\ This table originates from vital event data provided by the
National Center for Health Statistics (NCHS).
\3\ A table of the current estimates of the projected 2018 IHS
American Indian and Alaska Native service and non-service population of
the United States, by state.
Question 1a. Please provide information on the current available
medical services offered at each IHS Service Unit and the most frequent
services for which they receive Purchased/Referred Care (PRC) requests.
Answer. Appendix 4 is a listing of current available medical
services offered at each IHS Service Unit.
Appendix 5 is a listing of the top ten inpatient and outpatient
services by diagnosis category authorized by each IHS Federal facility
between the years 2014-2017.
Question 1b. Please provide information on IHS's use of Buy Indian
authority, and its progress toward implementing the recommendations of
GAO-15-588.
Answer. The Indian Health Service is committed to implementing
GAO's recommendation to:
``Clarify and codify their policies related to the priority
for use of the Buy Indian Act, including whether the Buy Indian
Act should be used before other set-aside programs.''
IHS Acquisition staff, leadership and program officials recognize
the importance of complying with Buy Indian Act responsibilities. IHS
is in the process of updating its policies, including the Indian Health
Manual (IHM), to clarify such responsibilities.
Currently, IHS is able to use Buy-Indian in an open market setting.
The Buy Indian Act is not used, however, for Government-Wide
Acquisition Contracts (GWACs) such as General Services Administration
(GSA) Alliant, National Aeronautics and Space Administration (NASA)
Solutions for Enterprise-Wide Procurement (SEWP), National Institutes
of Health (NIH) National Institutes of Health Information Technology
Acquisition and Assessment Center (NIHITAAC), etc. Because the use of
GWACs is prioritized government-wide, IHS plans to reach out to GSA and
other agencies under the Category Management program to consider the
incorporation of IHS' Buy Indian responsibilities.
``Collect data on regional office's implementation of key
requirements, such as challenges to self-certification.''
The IHS is also updating the Indian Health Manual to address
challenges to self-certification. IHS currently collects data pulled
from the Federal Procurement Data System--Next Generation (FPDS-NG) to
identify contract actions issued under the Buy Indian Act set-aside.
Once the updated policy is finalized, as identified in the draft IHM,
IHS will begin collecting monthly, quarterly and annual data related to
contract actions that deviate from the Buy Indian Act and any
challenges to Indian Economic Enterprise (IEE) self-certifications.
``Include Buy Indian Act contracts as a part of IHS' regular
acquisition review process.''
IHS recently conducted Acquisition Management Reviews (AMRs) for FY
2017 to ensure procurement integrity and standardization throughout IHS
Acquisitions. IHS plans to continue these reviews and implement the
requirements under the Buy Indian Act as regular elements conducted on
both Acquisition Peer/Supervisor review of contract actions and annual
AMRs.
IHS hit its highest mark ever under the Buy Indian Act during FY
2017 by obligating over $19.5 million to IEEs. This is an increase from
FY 2016 and FY 2015 which obligated just over $3 million in each of
those years. We expect that finalization of the IHS Buy Indian Act IHM
will improve these numbers moving forward and support economic
development in Indian Country.
Question 2. In your written testimony, you state that IHS has
routine procedures for conducting statutorily required external audits
and financial reporting. \4\ Please briefly describe the types of
independent financial auditing IHS completes each year.
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\4\ Statement of Elizabeth A. Fowler, ``Legislative Hearing to
Receive Testimony on S. 465 and S. 1400.'' Senate Committee on Indian
Affairs (Nov. 11. 2017), 6, at https://www.indian.senate.gov/sites/
default/files/HHS-IHS%20testimony%20S%20465%20SCIA%20hearing%2011-8-
17.pdf.
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Answer. The IHS complies with Office of Management and Budget (OMB)
Circular A-11 which includes standard Federal budget execution and
budgetary resource reporting requirements, including quarterly reports
that are publicly available. The IHS is also included in the Department
of Health and Human Services' (HHS or Department) annual Chief
Financial Officers (CFO) Act audit that evaluates conformance with
financial performance and disclosure standards and is performed by an
external, nationally-known independent firm contracted by HHS. The
Department publishes the results of these annual audits in the Agency
Financial Report (AFR), which is prepared in accordance with
requirements of OMB Circular A-136 and posted on the HHS website. For
the 18th consecutive year, the Department obtained an unmodified
(clean) opinion, meaning financial records and statements for FY 2017
were fairly and appropriately presented, and in accordance with
Generally Accepted Accounting Principles (GAAP).
Additionally, as required by the Federal Managers' Financial
Integrity Act (FMFIA) and OMB's Circular A-123, Management's
Responsibility for Enterprise Risk Management and Internal Control, the
IHS evaluates internal controls and financial management systems on an
annual basis. A contracted external firm is used by the IHS to conduct
and assist with these robust internal evaluations. The IHS's resulting
annual assurances are provided to HHS and included in the Department-
wide reasonable assurance that the financial information contained in
the HHS AFR is complete, reliable, and accurate.
Question 2a. Is there any overlap between the information already
being audited and what would be required under S. 465?
Answer. Yes, existing audit and assessments conducted under the CFO
Act, FMFIA, and OMB's Circular A-123 would overlap with assessments
proposed under S. 465. For example, section (12)(B) contemplates
``checks and balances'' used ``to assess potential fraud or misuse of
amounts within the Service,'' which is a key focus of existing
activities such as A-123 that specifically evaluates internal controls
and the CFO Act audit that looks at accuracy and accountability related
to financial performance and reporting. Section (13)(D) of the bill
considers ``the auditing or evaluation process used by the Service to
determine whether amounts are distributed and expended appropriately,
including'' financial records and ``whether any auditing or evaluation
is conducted in accordance with generally accepted accounting
principles or other appropriate practices.'' The IHS's financial
statements and reporting are evaluated through FMFIA and A-123 and
audited as part of the HHS' CFO Act audit, which tests for accuracy and
conformance with GAAP.
Question 2b. What percent of available resources does the Inspector
General of HHS use to review IHS operations?
Answer. The IHS would have to defer to the Department of Health and
Human Services Office of Inspector General (OIG) for specific
information on its available resources. However, the OIG's FY 2018
Congressional Justification indicates that $76.5 million or 22 percent
of its FY 2016 resources were directed toward HHS' Public Health and
Human Services programs, and of this amount two percent or $1.53
million was allocated for oversight efforts for IHS.
Question 3. You expressed concern in your written testimony with
the significant financial resources that private audit contracts would
require. \5\ If the Secretary directs IHS to fund this cost, how would
that affect health services to IHS patients?
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\5\ Id. At 7-8.
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Answer. The magnitude and detail of the assessments proposed by the
bill would likely require significant resources. The Department of
Veterans Affairs (VA) conducted a similar type of assessment in
response to the Veterans Access, Choice, and Accountability Act of
2014, and expended nearly $67 million in contractual costs alone. The
IHS's existing budget could not support a project of this scale and
potential cost without a reduction to direct health services.
Approximately 60 percent of the Agency's total $5 billion budget
authority is administered by Tribes and tribal organizations through
Indian Self-Determination and Education Assistance Act (ISDEAA)
agreements, and there is very little flexibility for reprogramming
remaining resources to accomplish the proposed assessment.
*The Appendix to this prepared statement has been retained in
the Committee files*
______
Response to Written Questions Submitted by Hon. Tom Udall to
Dave Flute
Question 1. Many of the resources expended by the Inspector General
at the Department of Health and Human Services are devoted to
combatting Medicaid and Medicare fraud. Is the HHS Inspector General's
oversight activities enough to hold IHS accountable?
Answer. The HHS Inspector General's oversight activities are not
enough to hold IHS accountable. The IHS operates in a bubble of no
accountability. For example, although Federal statutes and executive
orders require consultation on IHS budgets and funding for Indian
Service Units, the IHS Great Plains Region took $2.2 Million of our
Sisseton Wahpeton Service Unit Funding for Hospitals and Clinics last
year without notification or consultation with our Sisseton Wahpeton
Sioux Tribe. Meanwhile, our Sisseton Wahpeton tribal members were
denied medical services if they did not meet Priority 1, potential loss
of life or limb. On May 9, 2018, at the HHS Secretary's Tribal Advisory
Committee Meeting, HHS Secretary Alex Azar agreed to restore that
funding to SWO by the end of Fiscal Year 2018, but without his personal
intervention we have no confidence that IHS would have corrected their
wrongful taking of our funds.
Question 1a. Should the Committee on Indian Affairs investigate
ways to strengthen these independent reviews?
Answer. The Senate Committee on Indian Affairs should pass S. 465
to strengthen the independent review of the IHS.
Question 1b. Instead of paying for a one-time private assessment of
the IHS, would it make more sense to create a division with the Office
of Inspector General tasked with IHS oversight?
Answer. It would make sense to create an Office of IHS Treaty
Rights, Trust Responsibility, Consultation and Accountability within
the Office of the Secretary of HHS.
Question 2. IHS is funded at about 50 percent of need; this results
in severe financial constraints and leads to life-threatening denial or
deferral of care in some cases. Would directing money away from the IHS
budget to pay for an audit be detrimental to the healthcare delivery
for your tribal members?
Answer. Medical Service provided by the IHS has been prepaid by
Indian tribes and tribal members through the cession of millions of
acres of land, where America's major cities are located--for example,
Minneapolis, MN, Fargo and Bismarck, ND, Sioux City, IA, Sioux Falls
and Pierre, SD in our region. Through treaty, the United States agreed
to provide medical services when these original Native lands were
ceded. Accordingly, IHS should be fully funded--unless the United
States prefers to return ceded lands.
Question 2a. Would additional resources need to be appropriated to
cover that cost?
Answer. The IHS should receive full funding, so that our tribal
members can receive the same level of health care through IHS as the
general public is provided through Medicare. Medical care under the IHS
should not be limited to coverage for Priority 1, loss of life or limb
conditions, as it currently is because that violates our treaties with
the United States and ignores the needs of Native peoples resulting in
unnecessary suffering, injury, disease and death.
______
Response to Written Questions Submitted by Hon. Tom Udall to
John Tahsuda
NAGPRA Enforcement
Question 1. In your written testimony, you stated that the
Department of Interior believes that ``vigorous enforcement'' of the
Native American Graves Protection and Repatriation Act (NAGPRA) is an
``essential element'' to combatting theft of items of cultural
heritage. However, earlier this year, Secretary Zinke suspended all
NAGPRA Review Committee Activities indefinitely. The Review Committee
plays an important role under NAGRPA--it was established by Congress
``to monitor and review implementation of the inventory and
identification process and repatriation activities.'' Does Secretary
Zinke have the authority to suspend the NAGPRA Review Committee? If so,
what is the source of that authority?
Question 1a. What are the Secretary's reasons for suspending the
Review Committee?
Question 1b. Does the Secretary have plans to reconvene the Review
Committee so that it may pursue its statutorily mandated mission? If
so, what are those plans?
Answer to 1, 1a, and 1b. The Department's ongoing review of
advisory groups is critical to ensuring compliance with the Federal
Advisory Committee Act. The Department is currently in the process of
filling vacancies on the NAGPRA Review Committee. The NAGPRA Review
Committee is not suspended and once they have quorum, they may meet
following required public notice.
Indian Country Recommendations
Question 2. Over the past few years, tribal leaders have worked
with federal agencies on a variety of specific recommendations to
address protecting tribal patrimony, such as creating a multi-agency
task force or working group that would develop a comprehensive
regulatory language and recommendations, seeking bilateral agreements
with key foreign governments, and developing guidance for customs
officials. Is the Department of the Interior aware of any of these
recommendations?
Question 2a. If so, is the Department planning to take up any of
these recommendations? Or if not, can I get your commitment that you'll
follow up with tribal leaders and engage on this issue?
Question 2b. What is the Department currently doing to combat the
export of illicitly acquire cultural items?
Question 2c. How is the Department engaging tribes to help
repatriate their cultural heritage from abroad?
Answer to 2, 2a, 2b, and 2c. The Department is aware of these
interests and continues to work internally and with other federal
agencies to explore how best to address these challenging issues in a
meaningful way.
Protecting Cultural Heritage
Question 3. The Department's Office of International Affairs is the
primary point of contact for other agencies that conduct international
activities, including the State Department. At an Albuquerque field
hearing on this issue, I heard testimony that the lack of an explicit
ban on items of cultural patrimony hindered the federal government's
negotiations to stop the sale of the Acoma Shield and to bring it home.
Would an explicit ban on the export of items of cultural patrimony help
strengthen the federal government's hand in these types of
negotiations?
Answer. The Department is continuing to assess an array of options
as to how best to address the challenges associated with the export of
cultural patrimony.
Effective Congressional Oversight
Question 4. Since the beginning of the 115th Congress, I have sent
Secretary Zinke 10 letters (7 addressed directly to him; three to
President Trump) and submitted six submissions (questions for the
record) to the Department's hearing witnesses for response. I have not
received a single response. At the November 8th hearing, you committed
to me directly that you would address this unacceptable backlog of
unanswered letters and QFRs. It has been two weeks since you made this
commitment. What is the status of your review? What is the projected
response time?
Answer. The Department continues to work through the pending
requests you identify in your question. In fact, I understand that you
have recently received a response to several of your letters. We are
committed to addressing the backlog as expeditiously as possible.
[all]