[Senate Report 116-308]
[From the U.S. Government Publishing Office]
Calendar No. 608
116th Congress } { Report
SENATE
2d Session } { 116-308
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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.
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\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.
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