[Senate Report 117-33]
[From the U.S. Government Publishing Office]


                                                          Calendar No. 109
                                                         
                                                       
117th Congress  }                                               {  Report
                                 SENATE
 1st Session    }                                               {  117-33

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



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

                                _______
                                

                 July 28, 2021.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 1471]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Indian Affairs, to which was referred the 
bill, (S. 1471) to enhance protections of Native American 
tangible cultural heritage, and for other purposes, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                                PURPOSE

    The purpose of S. 1471 is to provide a framework to prevent 
the export of Native American cultural items, held in violation 
of current federal laws, for sale in foreign countries; to 
repatriate such items from individuals and organizations in 
possession thereof; and to improve coordination between federal 
agencies, Indian Tribes, and Native Hawaiian Organizations 
seeking to prevent the export, sale, and repatriation of such 
items. To this end, S. 1471 increases the maximum penalty for 
trafficking items of Native American cultural heritage in 
violation of current federal law. S. 1471 also establishes an 
interagency working group and a Native working group of Indian 
Tribes and Native Hawaiian organizations to ensure smooth 
implementation of the law and consistent communication between 
all relevant stakeholders.

                          NEED FOR LEGISLATION

    The federal government has a unique and sacred duty to 
Indian Tribes and Native Hawaiians to assist in the protection 
of cultural heritage that is essential to preserving cultural, 
social, and religious traditions within their communities. S. 
1471 provides explicit restrictions on the export of Native 
American cultural items in order to help curb illegal 
trafficking and sale of such items. Without such restrictions, 
a sophisticated and lucrative international black market trade 
in Native cultural heritage will continue to thrive and Native 
communities in the United States will continue to suffer.
    For generations, Native American cultural items, including 
ancestral human remains, funerary objects, sacred objects, and 
objects of cultural patrimony, have been looted and sold, often 
in art auctions, to collectors in the United States and abroad. 
Although such items are traded and sold as art, in Native 
communities they are irreplaceable pieces of cultural heritage 
and indispensable to the preservation, continuation, and in 
some cases, revitalization of cultural and religious practices 
and traditions.
    Since the passage of the Native American Graves Protection 
and Repatriation Act (NAGPRA) over 30 years ago, there has been 
increasing awareness among the public, and within the federal 
government, regarding the profound impact the loss of cultural 
heritage to international art markets has on Native 
communities. S. 1471 would ensure Native American cultural 
heritage items obtained in violation of existing federal law 
are not exported to foreign markets, and that cultural items 
discovered outside of the United States have a pathway to be 
returned to their home community and cultural context.
    The theft of certain enumerated Native American cultural 
heritage items is a violation of either NAGPRA, the 
Archaeological Resources Protection Act (ARPA), or both.\1\ S. 
1471 builds upon NAGPRA and ARPA by (1) filling an existing gap 
in federal legislation that prevents the trafficking and 
exportation of Native American cultural items and tangible 
cultural property from the United States for sale in foreign 
markets; (2) creating a mechanism for the voluntary return of 
cultural items to Native communities; and (3) improving the 
coordination between and among Native Americans, federal 
agencies, and international partners engaged in repatriation.
---------------------------------------------------------------------------
    \1\The Native American Graves Protection and Repatriation Act, Pub. 
L. 101-601, 104 Stat. 3048 (1990) (codified at 25 U.S.C. Sec. Sec. 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. 
Sec. Sec. 470aa et seq.).
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                               BACKGROUND

    The ARPA addresses the taking of archaeological resources 
from federal and Indian lands through regulation of excavation 
permitting of archaeological resources on public and Indian 
lands.\2\ ARPA requires that before the federal land manager 
issues a permit for excavation on Indian lands, for example, 
the consent of the Tribe must be obtained. As part of this 
process, if activities may result in the harm to, or 
destruction of, any cultural or religious site, the federal 
land manager must provide notice to any potentially affected 
Indian Tribe.\3\ Applicants are also directed that a permit to 
excavate on Indian lands shall include any terms and conditions 
requested by the Tribe.\4\ Further, ARPA imposes civil and 
criminal penalties on the domestic transport, excavation, 
transportation, sale, exchange, removal, or damage 
archaeological resources, as defined in the Act, without such 
permit.\5\
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    \2\16 U.S.C. Sec. 470cc.
    \3\16 U.S.C. Sec. 470cc(c).
    \4\16 U.S.C. Sec. 470cc(g)(2).
    \5\16 U.S.C. Sec. 470ee.
---------------------------------------------------------------------------
    NAGPRA addresses the need for Native Americans to 
repatriate ancestral remains, sacred objects, objects of 
cultural patrimony, and funerary objects from federal agencies 
and federally funded institutions. It also protects those items 
whether intentionally or inadvertently discovered on federal or 
tribal lands.\6\ In this regard, NAGPRA was intended to address 
the rights of lineal descendants, Indian Tribes, and Native 
Hawaiians to these cultural items, provide additional 
protections to Native American burial sites, and address trade 
in funerary and sacred items taken from tribal and federal 
lands.\7\ To do this, NAGPRA established a process for 
identifying\8\ and repatriating\9\ important cultural items and 
ancestral remains.
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    \6\ANAGPRA, supra n. 1.
    \7\S. Rep No. 101-473, at 3, 5 (1990).
    \8\25 U.S.C. Sec. 3003.
    \9\25 U.S.C. Sec. 3005.
---------------------------------------------------------------------------
    The enactment of both ARPA and NAGPRA were milestones in 
the federal effort to curb a variety of domestic threats to 
Native American cultural items, including theft, trafficking, 
and sale. Although these laws have created layers of protection 
in the United States, Indian Tribes and tribal advocacy groups 
have identified key shortcomings, notably the inability to 
prevent export of these items for sale in international 
markets. Two particular incidents involving the international 
sale and attempted sale of Native American cultural items 
illustrate this particular shortcoming.
    In 2013, the Hopi, Pueblo, and Apache Tribes discovered 
that several Katsinam, commonly known as Katchinas, were to be 
sold at the EVE Auction House in Paris, France. Katsinam are 
``friends'' of utmost importance to these Tribes' cultural, 
social, and religious practices. The Tribes attempted to use 
diplomacy and the French legal system to repatriate the items, 
but both efforts failed and the auction proceeded. It was only 
because these items were purchased by anonymous private parties 
that many of the Katsinam were ultimately returned to their 
homelands. Similarly, the attempted sale of the ``Acoma 
Shield,'' also at the EVE Auction House, caused great harm to 
the Pueblo of Acoma. The Shield is a sacred, ceremonial item 
important to Acoma religious societies.\10\ Pueblo leaders 
assert that the ``Shield'' was stolen in a 1970s during a home 
robbery on Acoma lands. Decades later, in 2016, the shield 
surfaced at the EVE Auction House when it was scheduled for 
sale. Due to lack of legal recourse available to the Tribe, 
broad-scale diplomatic pleas from Indian tribes, executive 
branch officials, and members of Congress resulted in the EVE 
Auction House withdrawing the Shield from sale. Conversations 
between the consignor of the Shield and the Tribe ultimately 
led to its return to Acoma Pueblo.
---------------------------------------------------------------------------
    \10\Legislative Hearing to Receive Testimony on S. 465 and S. 1400, 
115 (2017) (Statement of the Honorable Kurt Riley, Governor of the 
Pueblo of Acoma).
---------------------------------------------------------------------------
    Native American cultural items are vital to the continued 
existence and maintenance of Tribal cultural, religious, and 
social survival and continuance. The theft, trafficking, and 
illegal sale of these items has and continues to cause enormous 
harm to Native communities within the United States. The bill, 
S. 1471, contains measures that will address omissions in 
existing federal laws, provide needed protections against these 
activities, and improve agency coordination while meeting the 
federal government's trust responsibility.

                          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. On 
December 18, 2020, S. 2165 passed the U.S. Senate with an 
amendment from Senator Udall by unanimous consent. The bill was 
sent to the House of Representatives and held at the desk. No 
further action was taken.
    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 applies 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.
    In the 117th Congress, Senators Heinrich, Murkowski, Cortez 
Masto, Crapo, Lujan, Daines, Sinema, Rounds, Rosen, Lankford, 
Baldwin, and Sullivan introduced the bill, S. 1471. On May 26, 
2021, the Committee held a business meeting to consider the 
bill and ordered the bill reported favorably without amendment. 
Representatives Leger Fernandez, Young, Davids, Cole, Pingree, 
Mast, Radewagen, and Bass introduced H.R. 2930, the House 
companion bill to S. 1471. The bill was referred to the House 
Judiciary Committee, Committee on Foreign Affairs, and the 
Natural Resources Subcommittee for Indigenous Peoples of the 
United States. On May 20, 2021, the Subcommittee held a hearing 
to receive testimony on the bill. No further action has been 
taken since that time.

       SECTION-BY-SECTION ANALYSIS OF S. 1471 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 2021.

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 NAGPRA, with the goal of aiding 
in deterrence and encouraging prosecution of illegal 
transportation, sale, or profit of ancestral human remains and 
cultural items.

Section 5. Export prohibitions; Export certification system; 
        International agreements

    This section explicitly prohibits the export, or attempted 
export, of Native American cultural 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 authority will help prevent the export of federally-
protected Native American cultural items, and will facilitate 
their repatriation from abroad. Other countries are often 
unable to provide aid to Indian Tribes 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 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 illegally taken, 
possessed, or sold. 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 resources 
(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 self-attest 
that an item is not prohibited from trafficking under NAGPRA or 
ARPA is sufficient evidence to support the application. It 
authorizes civil penalties for the export or attempted export 
of a cultural item 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. This subsection also prohibits the prosecution of 
an individual attempting to export a cultural item without a 
permit if that person, in accordance with Section 6, 
voluntarily returns, or directs the return of, a cultural item 
prior to the commencement of a federal investigation into the 
attempted export.
    Subsection (c) reaffirms the authority of the President to 
enter into agreements with other countries regarding Native 
American 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.\11\ The bill would allow 
the U.S. to utilize the mechanisms under the 1970 international 
treaty to retrieve Tribal cultural heritage items from abroad.
---------------------------------------------------------------------------
    \11\19 U.S.C. Sec. Sec. 2601 et seq.
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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,'' as defined in the act, 
may receive federal assistance in locating the Indian Tribes or 
Native Hawaiian organizations with a cultural affiliation to 
the items. 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 the Working Group 
is to protect tangible cultural heritage, cultural items, and 
archaeological resources; facilitate repatriation of items 
illegally removed or trafficked in violation of existing 
federal law; and improve federal implementation of NAGPRA, 
ARPA, and other relevant federal laws. 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 advise the federal government regarding the 
sensitive issue of protection of Tribal cultural items and make 
requests for federal assistance.

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

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 27, 2021.
Hon. Brian Schatz,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1471, the Safeguard 
Tribal Objects of Patrimony Act of 2021.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jon Sperl.
            Sincerely,
                                         Phillip L. Swagel,
                                                          Director.
    Enclosure.

    
    

    S. 1471 would make it a federal crime to export Native 
American cultural items, archaeological resources, and objects 
of antiquity without proper authorization and would require 
exporters to obtain an export certification. Federal agencies 
would need to convene working groups to reduce trafficking and 
encourage repatriation of cultural heritage items. The bill 
also would direct the Department of the Interior (DOI) and the 
Department of State to designate liaisons to facilitate 
voluntary returns of unlawfully acquired items. Those agencies 
would provide training to tribal organizations, collectors, and 
dealers concerning the new prohibitions.
    S. 1471 would authorize the appropriation of $3 million 
annually over the 2021-2026 period to carry out the bill's 
requirements. CBO assumes that the bill will be enacted late in 
fiscal year 2021 and expects that federal agencies would begin 
incurring costs in 2022. Based on spending patterns for similar 
activities, CBO estimates, implementing S. 1471 would cost 
about $13 million over that period, assuming appropriation of 
the authorized amounts.
    In addition, S. 1471 would authorize DOI to charge fees to 
cover the costs of issuing export certifications. Those fees 
would be recorded as revenues and could be spent without 
appropriation. CBO expects the number of applications to be 
small and that the amount of fees collected and spent would be 
insignificant in each year.
    People who violate the bill's provisions could be subject 
to criminal fines. Criminal fines are recorded as revenues, 
deposited in the Crime Victims Fund, and later spent without 
further appropriation. CBO expects that any additional revenues 
and subsequent direct spending would not be significant because 
the legislation would probably affect only a small number of 
cases.
    The costs of the legislation, detailed in Table 1, fall 
within budget functions 150 (international affairs), 450 
(community and regional development), and 750 (administration 
of justice).

                TABLE 1.--ESTIMATED INCREASES IN SPENDING SUBJECT TO APPROPRIATION UNDER S. 1471
----------------------------------------------------------------------------------------------------------------
                                                             By fiscal year, millions of dollars--
                                              ------------------------------------------------------------------
                                                 2021     2022     2023     2024     2025     2026    2021-2026
----------------------------------------------------------------------------------------------------------------
Authorization................................        3        3        3        3        3        3           18
Estimated Outlays............................        0        2        2        3        3        3           13
----------------------------------------------------------------------------------------------------------------

    S. 1471 would impose a private-sector mandate as defined in 
the Unfunded Mandates Reform Act (UMRA), by requiring exporters 
of eligible Native American cultural items to obtain an export 
certification. According to the Government Accountability 
Office, fewer than 1,500 such items were identified at overseas 
auctions between 2012 and 2017. Using that information, CBO 
estimates that the number of affected exporters would be small; 
thus, the aggregate cost of the mandate would fall under the 
threshold established in UMRA for private-sector mandates ($170 
million in 2021, adjusted annually for inflation).
    The CBO staff contacts for this estimate are Jon Sperl (for 
federal costs) and Lilia Ledezma (for mandates). The estimate 
was reviewed by H. Samuel Papenfuss, Deputy Director of Budget 
Analysis.

               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. 1471 will 
have minimal impact on regulatory or paperwork requirements.

                        EXECUTIVE COMMUNICATIONS

    The Committee has received no communications from the 
Executive Branch regarding S. 1471.

                        CHANGES IN EXISTING LAW

    On February 11, 2021 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.