[Senate Report 117-33]
[From the U.S. Government Publishing Office]
Calendar No. 109
117th Congress } { Report
SENATE
1st Session } { 117-33
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TO ENHANCE PROTECTIONS OF NATIVE AMERICAN TANGIBLE CULTURAL HERITAGE,
AND FOR OTHER PURPOSES
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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.
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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. 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.
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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.
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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.
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\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).
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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.
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\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
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By fiscal year, millions of dollars--
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2021 2022 2023 2024 2025 2026 2021-2026
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Authorization................................ 3 3 3 3 3 3 18
Estimated Outlays............................ 0 2 2 3 3 3 13
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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.