[Senate Report 116-308]
[From the U.S. Government Publishing Office]


                                                     Calendar No. 608
116th Congress       }                         {               Report
                                 SENATE
 2d Session          }                         {              116-308

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

 
 TO ENHANCE PROTECTIONS OF NATIVE AMERICAN TANGIBLE CULTURAL HERITAGE, 
                         AND FOR OTHER PURPOSES

                                _______
                                

                December 9, 2020.--Ordered to be printed

                                _______
                                

           Mr. Hoeven, from the Committee on Indian Affairs, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 2165]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 2165) to enhance protections of Native American 
tangible cultural heritage, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment (in the nature of a substitute) and recommends that 
the bill, as amended, do pass.

                                PURPOSE

    The purpose of S. 2165 is to provide a framework for Indian 
Tribes to repatriate items of Native American cultural heritage 
from individuals and organizations in possession thereof. S. 
2165 increases the maximum penalty for trafficking items of 
Native American cultural heritage, in violation of current 
federal law. S. 2165 will establish an interagency working 
group and a Native working group of Indian Tribes and Native 
Hawaiian organizations, to ensure both a smooth implementation 
of the law, and consistent communication between all relevant 
stakeholders.

                          NEED FOR LEGISLATION

    For generations, Native American cultural items, including 
human remains, funerary objects, sacred objects, and objects of 
cultural patrimony have been looted and sold to collectors in 
the United States and abroad. These pieces are of great 
importance to the cultural heritage and traditions of Native 
peoples who do not consider them pieces of art to be traded 
without their consent. Over the last 30 years, a growing 
awareness in public and government policy regarding the problem 
has developed, resulting in action to ensure the repatriation 
objects of cultural patrimony.
    The federal government has a unique and sacred duty to 
Indian Tribes to assist in the protection of their cultural 
heritage that is essential to preserving spiritual traditions 
in Tribal communities. S. 2165, is necessary to provide 
explicit export restrictions that would help curb illegal 
trafficking in Native American cultural heritage. Without an 
explicit export restriction, a sophisticated and lucrative 
international black market trade in Tribal cultural heritage 
will continue to thrive.
    In most cases, theft of Native American cultural heritage 
is a violation of either the Native American Graves Protection 
and Repatriation Act (NAGPRA), the Archaeological Resources 
Protection Act (ARPA), or both.\1\ S. 2165 is necessary to 
build upon NAGPRA and ARPA, and provides greater export 
controls to stop the export of cultural heritage items already 
protected under federal law. These are the same export 
protections afforded to foreign countries whose illegally 
trafficked cultural heritage is imported to the United States. 
S. 2165 is also necessary to facilitate greater cooperation 
among federal agencies, and international partners, in the 
repatriation of items of cultural heritage once they are 
identified.
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    \1\The Native American Graves Protection and Repatriation Act, Pub. 
L. 101-601, 104 Stat. 3048 (1990) (codified at 25 U.S.C. 3001 et seq.); 
Archaeological Resources Protection Act of 1979, Pub. L. 96-95, 93 
Stat. 721 (1979) (codified as amended at 16 U.S.C. 470aa et seq.).
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                               BACKGROUND

    Congress addressed this issue and imposed civil and 
criminal penalties for these practices when it passed the ARPA 
in 1979. The ARPA governed the permitting of excavations of 
archaeological resources on public and Indian lands.\2\ This 
Act required, among other things, that before the federal land 
manager issues a permit for excavation, which may result in the 
harm to, or destruction of, any cultural or religious site, 
notice be provided to any potentially affected Indian Tribe. 
Permits are not required for Indian Tribes to excavate and 
remove resources on Tribal lands.\3\ Individual Tribal members 
must require permits to excavate in the absence of Tribal law 
governing excavate and removal policies.\4\
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    \2\The ARPA, supra note 1.
    \3\Id.
    \4\Id.
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    Congress again addressed this issue with the passage of 
NAGPRA in 1990.\5\ NAGPRA was intended to address the rights of 
lineal descendants, Indian Tribes, and Native Hawaiians 
organizations to Native cultural items, including human 
remains, funerary objects, sacred objects, and objects of 
cultural patrimony.
---------------------------------------------------------------------------
    \5\The NAGPRA, supra note 1.
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    The enactment of both ARPA and NAGPRA were milestones in 
the federal effort to address the domestic theft, illegal sale, 
and distribution of Tribal cultural items. Nevertheless, 
concerns from Indian Tribes and Tribal advocacy groups remain 
about the level of federal enforcement of NAGPRA. In addition, 
the lack of an explicit export ban on illegally obtained items 
has significantly hindered the efforts by Indian Tribes 
themselves to curb the theft, illegal possession, sale, 
transfer, and export of these items.
    Moving forward, one particular incident involving an 
ancient artifact, the ``Acoma Shield,'' illustrates the 
protections that the STOP Act will provide to Tribes and their 
respective objects of cultural patrimony. Acoma Pueblo Tribal 
leaders assert that the sacred ``Acoma Shield'' was stolen in a 
1970s home robbery on Acoma Pueblo lands, making it subject to 
federal forfeiture laws. In 2016, the shield surfaced at the 
EVE Auction House in Paris when it was scheduled for sale in 
May 2016. It became the subject of diplomatic pleas from Indian 
Tribes, executive branch officials, and members of Congress, 
until the Auction House acquiesced and stopped the sale.
    There is no question that cultural patrimony is vital to 
the continued existence and maintenance of Tribal culture and 
ways of life. The illegal sale of items of cultural patrimony 
has occurred domestically for decades but, as evidenced by the 
Acoma Shield controversy, the export and sale of these items 
has spread internationally. The bill, S. 2165, contains 
measures that will make those who traffic in Tribal cultural 
patrimony contemplate whether the risk is worth the reward--
monetary or otherwise.

                          LEGISLATIVE HISTORY

    In the 114th Congress, Senators Heinrich, Flake, and Udall 
introduced the ``Safeguard Tribal Objects of Patrimony Act of 
2016'' (i.e. S. 3127). The Committee held an Oversight hearing 
on ``The Theft, Illegal Possession, Sale, Transfer and Export 
of Tribal Cultural Items,'' on October 18, 2016. No further 
hearings were held, and the Committee did not consider the bill 
prior to adjournment of the 114th Congress. Representatives Ben 
Ray Lujan and Michelle Lujan Grisham introduced H.R. 5854, the 
House companion to S. 3127. The bill was referred to the House 
Judiciary Subcommittee on Crime, Terrorism, Homeland Security, 
and Investigations. No further action on the bill took place 
prior to adjournment.
    In the 115th Congress, Senators Heinrich, Flake, McCain, 
Schatz, Daines, Tester, Murkowski, and Udall introduced S. 
1400, the ``Safeguard Tribal Objects of Patrimony Act of 
2017''. On November, 8, 2017, the Committee held a legislative 
hearing to receive testimony on the bill. On May 16, 2018, the 
Committee ordered the bill reported favorably without 
amendment. No further action on the bill took place prior to 
adjournment.
    In the 116th Congress, Senators Heinrich, Murkowski, 
Baldwin, Daines, Schatz, McSally, Lankford, and Udall 
introduced the bill, S. 2165. On June 24, 2020, the Committee 
held a legislative hearing to receive testimony on the bill. On 
July 29, 2020, the Committee ordered the bill reported 
favorably, with an amendment in the nature of a substitute, 
offered by Senator Udall, on behalf of Senator Heinrich.
    Amendment. Senator Udall's amendment incorporated the 
concerns the Committee received in hearing testimony, as well 
as extensive feedback and technical assistance from the U.S. 
Departments of the Interior, State, Homeland Security, and 
Justice. Among other things, the substitute amendment added 
language noting that, in the event an item is found not to have 
a certification upon export, it will be detained and referred 
to the Secretary of the Interior to determine whether the item 
qualifies as an ``Item Prohibited from Export.'' Should an item 
be deemed prohibited from trafficking under federal law (i.e. 
NAGPRA or ARPA), that law alone will trigger the repatriation 
process that will apply until the item is returned to the 
appropriate Indian Tribe. The amendment created an exemption in 
the definition of ``Item Requiring Export Certification'' that 
allows Indian Tribes with a cultural affiliation to an item to 
issue certificates authorizing exportation, thereby allowing 
the exporter to avoid the federal certification process 
entirely. Lastly, the amendment authorized $3,000,000 in 
funding for each of the fiscal years 2021 through 2026 to carry 
out the provisions in the bill.

       SECTION-BY-SECTION ANALYSIS OF S. 2165 AS ORDERED REPORTED

Section 1. Short title

    This section sets forth the title of the bill as the 
Safeguard Tribal Objects of Patrimony Act of 2019.

Section 2. Purpose

    This section sets forth the purpose of the bill, most 
notably the following:
           To increase the maximum penalty for actions 
        taken in violation of federal law;
           To stop the export, and facilitate the 
        international repatriation, of cultural items 
        prohibited from being trafficked by federal law;
           To establish a Federal framework in order to 
        support the voluntary return by individuals and 
        organizations of items of tangible cultural heritage;
           To establish an interagency working group to 
        ensure communication between Federal agencies to 
        successfully implement the bill; and
           To establish a Native working group of 
        Indian Tribes and Native Hawaiian organizations to 
        assist in the implementation of this Act.

Section 3. Definitions

    This section sets forth the definitions to be used in the 
bill.

Section 4. Enhanced NAGPRA Penalties

    This section increases penalties for illegal trafficking in 
cultural items, in violation of the Native American Graves 
Protection and Repatriation Act (NAGPRA), with the goal of 
aiding in deterrence and encouraging prosecution of cultural 
theft.

Section 5. Export prohibitions; export certification system; 
        international agreements

    This section contains an explicit prohibition export of 
Tribal cultural heritage items already prohibited from being 
trafficked under existing federal law. Section 5 also creates 
an accompanying export certification system, and confirms the 
authority of the President to retrieve items from other 
countries under an existing 1970 international treaty. This 
will help prevent the export of federally-protected Tribal 
cultural heritage items, and it will also facilitate their 
repatriation from abroad. Other countries are often unwilling 
to provide aid without an explicit export prohibition and 
accompanying export certification system.
    Subsection (a) prohibits the export of cultural items 
trafficked in violation of NAGPRA, and Native American 
archaeological resources, the trafficking in which is 
prohibited by the Archaeological Resources Protection Act 
(ARPA). Section (a) creates a criminal penalty for such export 
or attempted export when a person knew, or reasonably should 
have known, the item was illegal. It also authorizes detention, 
forfeiture, and repatriation to the appropriate Indian Tribe or 
Native Hawaiian organization.
    Subsection (b) prohibits export of a cultural item (defined 
under NAGPRA), or a Native American archaeological resource 
(defined under ARPA), without an export certification obtained 
from the Department of the Interior. This subsection also 
states that cultural items, and Native American archaeological 
resources, may receive an export certification when (1) they 
are not under ongoing federal investigation, (2) are not 
covered by NAGPRA or ARPA's trafficking prohibitions, and (3) 
their export would not otherwise be unlawful.
    Subsection (b) also requires exporters to submit 
applications to the Department of the Interior, and, in most 
cases, self-attestation that an item is not prohibited from 
trafficking under NAGPRA or ARPA is sufficient evidence to 
support the application. It authorizes civil penalties for 
export or attempted export without an export certification, as 
well as detention, and, when found to be covered by NAGPRA or 
ARPA's trafficking prohibitions, authorizes forfeiture and 
repatriation.
    Subsection (c) reaffirms the authority of the President to 
enter into agreements with other countries regarding Tribal 
cultural heritage items. The U.S. is a signatory to a 1970 
international treaty under which countries may enter into 
agreements for the return of cultural property if the 
requesting country has an explicit export prohibition and 
certification system. The U.S. has enacted a federal statute 
under which it returns cultural property to other countries, 
but has not utilized the treaty to retrieve cultural property 
originating within its own borders. The bill would allow the 
U.S. to utilize the mechanisms under the 1970 international 
treaty to retrieve Tribal cultural heritage items from abroad.

Section 6. Voluntary return of tangible cultural heritage

    This section creates a voluntary return framework through 
which individuals and organizations seeking to voluntarily 
return tangible cultural heritage may receive federal 
assistance in locating the Indian Tribes or Native Hawaiian 
organizations with a cultural affiliation. Tangible cultural 
heritage includes Native American human remains and culturally, 
historically, or archaeologically significant objects, 
resources, patrimony, or other items that are affiliated with a 
Native American culture. Tangible cultural heritage also 
extends beyond items protected under existing federal law.
    Subsections (a) through (c) call on the Departments of the 
Interior, and State, to create the infrastructure to facilitate 
the voluntary return of tangible cultural heritage to Indian 
Tribes and Native Hawaiian organizations by individuals and 
organizations.
    Subsection (d) clarifies that there will be no additional 
penalties or legal liabilities imposed beyond what is specified 
in the bill, and Subsection (e) directs the Department of the 
Interior to provide the individual, or organization returning 
the item, with tax documentation for a deductible gift.
    Subsection (f) mandates that the voluntary return framework 
is not applicable to items subject to NAGPRA's repatriation 
process for federal agencies and museums.

Section 7. Interagency working group

    Creates an interagency working group consisting of 
representatives from the Departments of the Interior, Justice, 
State, and Homeland Security, the function of which are 
required to protect Tribal cultural heritage items. Federal 
agencies currently collaborate without statutory mandate, but a 
framework for their ongoing collaboration and mechanisms by 
which Indian Tribes and Native Hawaiian organizations can more 
easily interact with them are necessary.

Section 8. Native working group

    This section creates a Native working group through which 
representatives of Indian Tribes and Native Hawaiian 
organizations. This working group will advise the federal 
government regarding the sensitive issue of protection of 
Tribal cultural heritage items and make requests for aid.

Section 9. Treatment Under Freedom of Information Act

    This section creates an exemption from disclosure under the 
Freedom of Information Act for sensitive information provided 
under the bill.
    Subsections (a) and (b) exempt from disclosure information 
submitted by Indian Tribes or Native Hawaiian organizations 
pursuant to the bill, and designated as sensitive or private. 
Also exempt is information submitted by any person pursuant to 
the bill that relates to a Tribal cultural heritage item for 
which an export certification is denied. In exempting this 
information, Indian Tribes and Native Hawaiian organizations 
are more likely to provide necessary sensitive information to 
the federal government, and information provided that may 
otherwise be used to authenticate an item will not increase 
that item's value on the black market.
    Subsection (c) allows an Indian Tribe or Native Hawaiian 
organization to request from a federal agency its own 
information it provided under the bill.

Section 10. Regulations

    This section directs the Department of the Interior to 
promulgate regulations implementing the bill, in consultation 
with the Departments of State, Homeland Security, and Justice, 
and after consultation with Indian Tribes and Native Hawaiian 
organizations.

Section 11. Authorization of appropriations

    This section authorizes $3,000,000 in funding for each of 
the fiscal years 2021 through 2026 to carry out the bill.

                   COST AND BUDGETARY CONSIDERATIONS

    As of the date of publishing this report, the Committee has 
received the following informal communication from the 
Congressional Budget Office regarding the cost and budgetary 
considerations for S. 2165:
          CBO estimates this legislation would increase both 
        direct spending and revenues by an insignificant amount 
        over the 2021-2030 period. They would offset each 
        other, resulting in an insignificant decrease in the 
        deficit over that period.
          CBO estimates the legislation would increase 
        spending, subject to appropriation, by $7 million over 
        the 2021-2025 period.
            Sincerely,
                                         Jon Sperl,
                                         Principal Analyst,
                                       Congressional Budget Office.

               REGULATORY AND PAPERWORK IMPACT STATEMENT

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 2165 will 
have minimal impact on regulatory or paperwork requirements.

                        EXECUTIVE COMMUNICATIONS

    The Committee has received no communications from the 
Executive Branch regarding S. 2165.

                        CHANGES IN EXISTING LAW

    On February 6, 2019, the Committee unanimously approved a 
motion to waive subsection 12 of rule XXVI of the Standing 
Rules of the Senate. In the opinion of the Committee, it is 
necessary to dispense with subsection 12 of rule XXVI of the 
Standing Rules of the Senate to expedite the business of the 
Senate.

                                  [all]