To Enhance Protections of Native American Tangible Cultural Heritage: Senate Report 116-308
Summary
Senate Report 116-308, Calendar No. 608, of the 116th Congress, 2d Session, dated December 9, 2020, in which Mr. Hoeven reports for the Committee on Indian Affairs on S. 2165, a bill to enhance protections of Native American tangible cultural heritage. The report includes a cost estimate of the Congressional Budget Office and reports favorably with an amendment in the nature of a substitute. Its purpose section says the bill provides a framework for Indian Tribes to repatriate items of cultural heritage, increases the maximum penalty for trafficking such items and establishes an interagency working group and a Native working group. The Committee states it received no communications from the Executive Branch.
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“To Enhance Protections of Native American Tangible Cultural Heritage: Senate Report 116-308.”
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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 cul-
tural 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 organiza-
tions, to ensure both a smooth implementation of the law, and con-
sistent communication between all relevant stakeholders.
NEED FOR LEGISLATION
For generations, Native American cultural items, including
human remains, funerary objects, sacred objects, and objects of cul-
tural 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.
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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 her-
itage. Without an explicit export restriction, a sophisticated and lu-
crative international black market trade in Tribal cultural heritage
will continue to thrive.
In most cases, theft of Native American cultural heritage is a vio-
lation of either the Native American Graves Protection and Repatri-
ation 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 repatri-
ation of items of cultural heritage once they are identified.
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 re-
sources 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 Trib-
al members must require permits to excavate in the absence of
Tribal law governing excavate and removal policies.4
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 organiza-
tions to Native cultural items, including human remains, funerary
objects, sacred objects, and objects of cultural patrimony.
The enactment of both ARPA and NAGPRA were milestones in
the federal effort to address the domestic theft, illegal sale, and dis-
tribution of Tribal cultural items. Nevertheless, concerns from In-
dian 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 ar-
tifact, the ‘‘Acoma Shield,’’ illustrates the protections that the
STOP Act will provide to Tribes and their respective objects of cul-
tural patrimony. Acoma Pueblo Tribal leaders assert that the sa-
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.).
2 The ARPA, supra note 1.
3 Id.
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4 Id.
5 The NAGPRA, supra note 1.
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cred ‘‘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 con-
tinued existence and maintenance of Tribal culture and ways of
life. The illegal sale of items of cultural patrimony has occurred do-
mestically for decades but, as evidenced by the Acoma Shield con-
troversy, the export and sale of these items has spread internation-
ally. 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 in-
troduced 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 Cul-
tural 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 Luján and
Michelle Lujan Grisham introduced H.R. 5854, the House com-
panion to S. 3127. The bill was referred to the House Judiciary
Subcommittee on Crime, Terrorism, Homeland Security, and Inves-
tigations. No further action on the bill took place prior to adjourn-
ment.
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 No-
vember, 8, 2017, the Committee held a legislative hearing to re-
ceive testimony on the bill. On May 16, 2018, the Committee or-
dered 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 hear-
ing to receive testimony on the bill. On July 29, 2020, the Com-
mittee 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 con-
cerns the Committee received in hearing testimony, as well as ex-
tensive feedback and technical assistance from the U.S. Depart-
ments 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 certifi-
cation 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
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the item is returned to the appropriate Indian Tribe. The amend-
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ment created an exemption in the definition of ‘‘Item Requiring Ex-
port Certification’’ that allows Indian Tribes with a cultural affili-
ation to an item to issue certificates authorizing exportation, there-
by 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 pro-
visions 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 Trib-
al 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 vio-
lation of federal law;
• To stop the export, and facilitate the international repatri-
ation, of cultural items prohibited from being trafficked by fed-
eral 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 com-
munication between Federal agencies to successfully imple-
ment 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; inter-
national agreements
This section contains an explicit prohibition export of Tribal cul-
tural 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 inter-
national treaty. This will help prevent the export of federally-pro-
tected 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 accom-
panying export certification system.
Subsection (a) prohibits the export of cultural items trafficked in
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violation of NAGPRA, and Native American archaeological re-
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sources, the trafficking in which is prohibited by the Archaeological
Resources Protection Act (ARPA). Section (a) creates a criminal pen-
alty for such export or attempted export when a person knew, or
reasonably should have known, the item was illegal. It also author-
izes detention, forfeiture, and repatriation to the appropriate In-
dian 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 De-
partment 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 traf-
ficking 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 author-
izes 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 for-
feiture and repatriation.
Subsection (c) reaffirms the authority of the President to enter
into agreements with other countries regarding Tribal cultural her-
itage 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 origi-
nating within its own borders. The bill would allow the U.S. to uti-
lize 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 tan-
gible 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 sig-
nificant objects, resources, patrimony, or other items that are affili-
ated 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 Inte-
rior, and State, to create the infrastructure to facilitate the vol-
untary 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 documenta-
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tion for a deductible gift.
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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 representa-
tives 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 collabo-
rate 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 rep-
resentatives 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 sub-
mitted by Indian Tribes or Native Hawaiian organizations pursu-
ant 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 cer-
tification is denied. In exempting this information, Indian Tribes
and Native Hawaiian organizations are more likely to provide nec-
essary sensitive information to the federal government, and infor-
mation 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 organi-
zation to request from a federal agency its own information it pro-
vided under the bill.
Section 10. Regulations
This section directs the Department of the Interior to promulgate
regulations implementing the bill, in consultation with the Depart-
ments of State, Homeland Security, and Justice, and after con-
sultation with Indian Tribes and Native Hawaiian organizations.
Section 11. Authorization of appropriations
This section authorizes $3,000,000 in funding for each of the fis-
cal years 2021 through 2026 to carry out the bill.
COST AND BUDGETARY CONSIDERATIONS
As of the date of publishing this report, the Committee has re-
ceived the following informal communication from the Congres-
sional Budget Office regarding the cost and budgetary consider-
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ations for S. 2165:
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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, sub-
ject 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 Sen-
ate requires each report accompanying a bill to evaluate the regu-
latory and paperwork impact that would be incurred in carrying
out the bill. The Committee believes that S. 2165 will have mini-
mal impact on regulatory or paperwork requirements.
EXECUTIVE COMMUNICATIONS
The Committee has received no communications from the Execu-
tive 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.
Æ
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