Calendar No. 608
116th CONGRESS 2d Session |
[Report No. 116–308]
To enhance protections of Native American tangible cultural heritage, and for other purposes.
July 18, 2019
Mr. Heinrich (for himself, Ms. Murkowski, Ms. Baldwin, Mr. Daines, Mr. Schatz, Ms. McSally, Mr. Udall, Mr. Lankford, Ms. Sinema, Mr. Sullivan, Ms. Cortez Masto, Mr. Crapo, and Ms. Rosen) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs
December 9, 2020
Reported by Mr. Hoeven, with an amendment
[Strike out all after the enacting clause and insert the part printed in italic]
To enhance protections of Native American tangible cultural heritage, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This Act may be cited as the “Safeguard Tribal Objects of Patrimony Act of 2019”.
It is the purpose of this Act—
(2) to increase the maximum penalty for actions taken in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act), in order to strengthen deterrence;
(3) to make internationally applicable the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act), the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.), and the Antiquities Act under section 1866(b) of title 18, United States Code, to facilitate the international repatriation of Native American cultural items, Native American archaeological resources, and Native American objects of antiquity;
(4) to access other countries’ domestic laws and law enforcement mechanisms to facilitate international repatriation by explicitly prohibiting the exportation of Native American cultural items obtained in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act), Native American archaeological resources obtained in violation of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.), and Native American objects of antiquity obtained in violation of the Antiquities Act under section 1866(b) of title 18, United States Code, and by creating an export certification system;
(5) to confirm the authority of the President to request from foreign nations agreements or provisional measures under the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (823 U.N.T.S. 231 (1972)), to facilitate the return of Native American cultural items obtained in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act), Native American archaeological resources obtained in violation of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.), and Native American objects of antiquity obtained in violation of the Antiquities Act under section 1866(b) of title 18, United States Code;
(6) to establish a Federal framework in order to support individuals’ and organizations’ voluntary return of items of tangible cultural heritage, which need not be obtained in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act), the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.), or the Antiquities Act under section 1866(b) of title 18, United States Code;
(7) to establish an interagency working group to ensure communication between all Federal agencies to successfully implement the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act), the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.), and the Antiquities Act under section 1866(b) of title 18, United States Code;
(8) to establish a Tribal working group to provide recommendations regarding implementation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act), the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.), and the Antiquities Act under section 1866(b) of title 18, United States Code; and
In this Act, the following definitions apply:
(1) CULTURAL AFFILIATION.—The term “cultural affiliation” has the meaning given the term in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001).
(2) INDIAN TRIBE.—The term “Indian Tribe”—
(A) has the meaning given the term “Indian tribe” in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001); and
(B) includes “Native Hawaiian organization” as that term is defined in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001).
(3) ITEM REQUIRING EXPORT CERTIFICATION.—The term “Item Requiring Export Certification” means—
(A) a Native American “cultural item” as defined in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001);
(B) a Native American “archaeological resource” as defined in section 3 of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470bb); or
(C) a Native American “object of antiquity” within the meaning of section 1866(b) of title 18, United States Code.
(4) ITEM PROHIBITED FROM EXPORTATION.—The term “Item Prohibited from Exportation” means—
(A) a Native American “cultural item” as defined in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001) and obtained in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act);
(B) a Native American “archaeological resource” as defined in section 3 of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470bb) and obtained in violation of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.);
(C) a Native American “object of antiquity” within the meaning of and obtained in violation of the Antiquities Act under section 1866(b) of title 18, United States Code; or
(D) a Native American “cultural item” as defined in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001), Native American “archaeological resource” as defined in section 3 of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470bb), or Native American “object of antiquity” within the meaning of the Antiquities Act under section 1866(b) of title 18, United States Code, that is under active Federal investigation.
(5) NATIVE AMERICAN.—The term “Native American”—
(A) has the meaning given the term in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001); and
(B) includes “Native Hawaiian” as that term is defined in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001).
SEC. 4. Enhanced NAGPRA penalties.
Section 1170 of title 18, United States Code, is amended by striking “5 years” each place it appears and inserting “10 years”.
SEC. 5. Export prohibition and certification system and international agreements.
(1) IN GENERAL.—It shall be unlawful for any person to export or otherwise transport from the United States any Item Prohibited from Exportation.
(2) PENALTIES.—Any person who violates paragraph (1) shall be fined in accordance with section 3571 of title 18, United States Code, and shall be imprisoned for not more than 1 year for a first violation and not more than 10 years for a second or subsequent violation.
(b) Export certification system.—
(1) EXPORT CERTIFICATION REQUIREMENT.—
(A) IN GENERAL.—No Item Requiring Export Certification may be exported from the United States without first having obtained an export certification in accordance with this subsection.
(B) PUBLICATION.—The Secretary shall, in consultation with Indian Tribes, publish in the Federal Register a notice that includes—
(i) a description of characteristics typical of Items Requiring Export Certification, which shall be sufficiently specific and precise to ensure an export certification is required only of such Items Requiring Export Certification and that fair notice is given to exporters and other persons as to which items require an export certification under this paragraph; and
(ii) a description of characteristics typical of items that do not qualify as Items Requiring Export Certification and therefore do not require an export certification under this paragraph, which shall—
(I) clarify that objects made for commercial purposes generally do not qualify as an Item Requiring Export Certification; and
(II) clarify that in some circumstances receipts or certifications issued by Indian Tribes may be used as evidence to demonstrate a particular item does not qualify as an Item Requiring Export Certification.
(2) ELIGIBILITY FOR EXPORT CERTIFICATION.—An Item Requiring Export Certification is not an Item Prohibited from Exportation and is therefore eligible for an export certification if it is not under ongoing Federal investigation and it—
(A) was not obtained within the time and location provenance parameters of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act), the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.), or the Antiquities Act under section 1866(b) of title 18, United States Code, and the export of the Item Requiring Export Certification would not otherwise violate any other provision of law;
(B) was excavated or removed pursuant to a permit issued under section 4 of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470cc) or section 320302 of title 54, United States Code, or in compliance with section 3(c) of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3002(c)), if the permit for excavation or removal authorizes export, and the export of the Item Requiring Export Certification would not otherwise violate any other provision of law; or
(C) is accompanied by written confirmation from an Indian Tribe that the exporter has a right of possession, as defined in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001), or that the Indian Tribe has relinquished title or control, as provided for in section 3 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3002), of the Item Requiring Export Certification, and the export of the Item Requiring Export Certification would not otherwise violate any other provision of law.
(3) EXPORT CERTIFICATION APPLICATION AND ISSUANCE PROCEDURES.—
(A) APPLYING FOR EXPORT CERTIFICATION.—
(I) IN GENERAL.—With respect to each Item Requiring Export Certification to be exported from the United States, the exporter shall make an attestation (on an attestation form described in subclause (III)) that, to the best of the exporter's knowledge and belief, the exporter is not exporting an Item Prohibited from Exportation.
(II) CONSEQUENCES OF FALSE STATEMENT.—Any willful or knowing false statement made on an attestation form under subclause (I) shall—
(aa) subject the exporter to criminal penalties pursuant to section 1001 of title 18, United States Code; and
(bb) prohibit the exporter from receiving an export certification for any Item Requiring Export Certification through attestation alone in the future.
(III) ATTESTATION FORM.—An attestation form shall describe and provide pictures of each Item Requiring Export Certification. The Secretary shall consult with Indian Tribes in designing the attestation form.
(ii) ADDITIONAL EVIDENCE.—If attestation alone is no longer permitted or an export certification is delayed or denied, notice shall be given to the exporter, who may provide the Secretary with evidence to establish that the Item Requiring Export Certification is not an Item Prohibited from Exportation.
(B) AVAILABILITY OF APPLICATIONS.—The Secretary shall make each export certification application available to Indian Tribes via a secure website immediately after each export certification application has been submitted.
(C) ISSUANCE OF EXPORT CERTIFICATION.—The Secretary, in consultation with Indian Tribes, may issue an export certification for an Item Requiring Export Certification that is not an Item Prohibited from Exportation and is therefore eligible for export.
(D) REVOCATION OF EXPORT CERTIFICATION.—If credible evidence is provided that indicates an item that received an export certification qualifies as an Item Prohibited from Exportation, the Secretary may immediately revoke the export certification. In making a determination about whether revocation is warranted, Indian Tribes shall be consulted.
(4) SEIZURE, FORFEITURE, AND RETURN.—
(A) SEIZURE.—Any Item Requiring Export Certification that an exporter attempts to export without an export certification shall be subject to seizure by the U.S. Customs and Border Protection.
(B) FORFEITURE.—An item found to qualify as an Item Prohibited from Exportation shall be forfeited, consistent with chapter 46 of title 18, United States Code, to the Federal Government and repatriated to the Indian Tribe pursuant to the process provided for under the law under which it is found to be obtained in violation.
(C) RETURN TO EXPORTER.—An Item Requiring Export Certification that is seized under subparagraph (A) for which credible evidence does not establish within 60 days that it is an Item Prohibited from Exportation shall be returned to the exporter but shall not receive an export certification at that time.
(5) ADMINISTRATIVE APPEAL.—If the Secretary denies an export certification or seizes an Item Requiring Export Certification under this subsection, the exporter shall upon request be given a hearing on the record under such rules and regulations as the Secretary may promulgate.
(6) FEES.—Reasonable fees may be collected for the processing of export certification applications under this subsection.
(7) TRAINING.—The Secretary of Homeland Security, acting through the Commissioner of U.S. Customs and Border Protection, shall require all appropriate personnel of U.S. Customs and Border Protection to participate in training to identify Items Requiring Export Certification for purposes of this Act and the amendment made by this Act. Indian Tribes shall be consulted in developing and delivering such trainings.
(8) VOLUNTARY RETURN.—Whoever seeks to export an Item Requiring Export Certification without a required export certification but voluntarily returns it to the Indian Tribe with a likely cultural affiliation prior to active Federal investigation shall not be prosecuted for such violation with respect to the Item Requiring Export Certification. The exporter’s application to obtain an export certification does not qualify as triggering an active Federal investigation.
(c) Agreements To request return from foreign countries.—The President is authorized to request from a State Party agreements or provisional measures pursuant to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (823 U.N.T.S. 231 (1972)), subject to the limitations of Articles 6 and 9, under which the President may request the return from the State Party of Items Prohibited from Exportation.
SEC. 6. Voluntary return of tangible cultural heritage.
(a) Liaison.—The Secretary and the Secretary of State shall each designate a liaison to facilitate the voluntary return of tangible cultural heritage.
(b) Trainings and workshops.—The individuals listed in subsection (a) shall hold trainings and workshops for representatives of Indian Tribes and collectors, dealers, and other individuals and organizations regarding the voluntary return of tangible cultural heritage.
(1) IN GENERAL.—The Secretary shall refer individuals and organizations to one or more Indian Tribes with a likely cultural affiliation to tangible cultural heritage for the purpose of facilitating the voluntary return of tangible cultural heritage.
(2) REFERRAL REPRESENTATIVES.—The Secretary shall compile a list of representatives from each Indian Tribe for purposes of referral under paragraph (1).
(3) CONSULTATION.—The Secretary shall consult with Indian Tribes before making a referral under paragraph (1).
(4) THIRD-PARTY EXPERTS.—The Secretary may utilize third parties with relevant expertise, including universities, museums, dealers, collector organizations, and others, in making determinations regarding to which Indian Tribe an individual or organization should be referred under paragraph (1).
(e) Tax documentation.—The Secretary’s voluntary return facilitation shall include provision of tax documentation for a deductible gift to an Indian Tribe.
(f) Repatriation under Native American Graves Protection and Repatriation Act.—The voluntary return provisions of this section shall apply to a specific item of tangible cultural heritage only to the extent that the repatriation provisions under section 7 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3005) do not apply to such item of tangible cultural heritage.
SEC. 7. Interagency working group.
(a) In general.—The Secretary shall convene an interagency working group consisting of representatives from the Departments of the Interior, Justice, State, and Homeland Security.
(b) Goals.—The goals of the working group are—
(1) to facilitate repatriation to Indian Tribes of items that have been illegally removed or trafficked in violation of law;
(2) to protect such items still in Indian Tribes’ possession; and
(3) to improve Federal agencies’ implementation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act), the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.), the Antiquities Act under section 1866(b) of title 18, United States Code, and other relevant laws.
(a) In general.—The Secretary shall convene a Tribal working group consisting of representatives of Indian Tribes to advise the Federal Government.
(b) Recommendations.—The Tribal working group convened under subsection (a) may provide recommendations regarding—
(1) the voluntary return of tangible cultural heritage by collectors, dealers, and other individuals and non-Federal organizations that hold such tangible cultural heritage; and
(2) the elimination of illegal commerce in the United States and foreign markets.
(c) Requests.—The Tribal working group convened under subsection (a) may make formal requests to initiate certain agency actions, including—
(1) requesting the Department of Justice initiate judicial proceedings domestically or abroad to aid in repatriation; and
(2) requesting the Department of State initiate dialogue through diplomatic channels to aid in repatriation.
(d) Agency and committee assistance.—
(1) IN GENERAL.—The agencies and committees described in paragraph (2) shall provide information and assistance to the Tribal working group convened under subsection (a) upon request by the Tribal working group.
(2) AGENCIES AND COMMITTEES.—The agencies and committees described in this paragraph are the following:
(A) The Department of the Interior.
(B) The Department of Justice.
(C) The Department of Homeland Security.
(D) The Department of State.
(E) The Native American Graves Protection and Repatriation Review Committee established under section 8 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3006).
(F) Any other relevant Federal agency.
SEC. 9. Freedom of Information Act exemptions.
(a) In general.—Except as provided in subsection (b), information that a representative of an Indian Tribe submits to any Federal agency pursuant to this Act, or any amendment made by this Act, shall qualify for exemption from disclosure under the Freedom of Information Act pursuant to section 552(b)(3) of title 5, United States Code.
This Act may be cited as the “Safeguard Tribal Objects of Patrimony Act of 2020”.
The purposes of this Act are—
(2) to increase the maximum penalty for actions taken in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by that Act), in order to strengthen deterrence;
(3) to stop the export, and facilitate the international repatriation, of cultural items prohibited from being trafficked by the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by that Act) and archaeological resources prohibited from being trafficked by the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.) by—
(4) to establish a Federal framework in order to support the voluntary return by individuals and organizations of items of tangible cultural heritage, including items covered by the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by that Act) and the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.);
(5) to establish an interagency working group to ensure communication between Federal agencies to successfully implement this Act, the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by that Act), the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.), and other relevant Federal laws;
(6) to establish a Native working group of Indian Tribes and Native Hawaiian organizations to assist in the implementation of this Act, the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by that Act), the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.), and other relevant Federal laws;
In this Act:
(1) ARCHAEOLOGICAL RESOURCE.—The term “archaeological resource” means an archaeological resource (as defined in section 3 of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470bb)) that is Native American.
(2) CULTURAL AFFILIATION.—The term “cultural affiliation” means that there is a relationship of shared group identity that can be reasonably traced historically or prehistorically between a present day Indian Tribe or Native Hawaiian organization and an identifiable earlier group.
(3) CULTURAL ITEM.—The term “cultural item” means any 1 or more cultural items (as defined in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001)).
(4) INDIAN TRIBE.—The term “Indian Tribe” has the meaning given the term “Indian tribe” in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001).
(5) ITEM PROHIBITED FROM EXPORTATION.—The term “Item Prohibited from Exportation” means—
(A) a cultural item prohibited from being trafficked, including through sale, purchase, use for profit, or transport for sale or profit, by—
(i) section 1170(b) of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.); or
(B) an archaeological resource prohibited from being trafficked, including through sale, purchase, exchange, transport, receipt, or offer to sell, purchase, or exchange, including in interstate or foreign commerce, by—
(i) subsections (b) and (c) of section 6 of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470ee); or
(6) ITEM REQUIRING EXPORT CERTIFICATION.—
(B) EXCLUSION.—The term “Item Requiring Export Certification” does not include an item described in clause (i) or (ii) of subparagraph (A) for which an Indian Tribe or Native Hawaiian organization with a cultural affiliation with the item has provided a certificate authorizing exportation of the item.
(7) NATIVE AMERICAN.—The term “Native American” means—
(A) Native American (as defined in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001)); and
(8) NATIVE HAWAIIAN ORGANIZATION.—The term “Native Hawaiian organization” has the meaning given the term in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001).
SEC. 4. Enhanced NAGPRA penalties.
Section 1170 of title 18, United States Code, is amended—
SEC. 5. Export prohibitions; export certification system; international agreements.
(a) Export prohibitions.—
(1) IN GENERAL.—It shall be unlawful for any person—
(2) PENALTIES.—Any person who violates paragraph (1) and knows, or in the exercise of due care should have known, that the Item Prohibited from Exportation was taken, possessed, transported, or sold in violation of, or in a manner unlawful under, any Federal law or treaty, shall be fined in accordance with section 3571 of title 18, United States Code, imprisoned for not more than 1 year and 1 day for a first violation, and not more than 10 years for a second or subsequent violation, or both.
(3) DETENTION, FORFEITURE, AND REPATRIATION.—
(A) DETENTION AND DELIVERY.—The Secretary of Homeland Security, acting through the Commissioner of U.S. Customs and Border Protection, shall—
(B) FORFEITURE.—Any Item Prohibited from Exportation that is exported, attempted to be exported, or otherwise transported from the United States in violation of paragraph (1) shall be subject to forfeiture to the United States in accordance with chapter 46 of title 18, United States Code (including section 983(c) of that chapter).
(C) REPATRIATION.—Any Item Prohibited from Exportation that is forfeited under subparagraph (B) shall be expeditiously repatriated to the appropriate Indian Tribe or Native Hawaiian organization in accordance with, as applicable—
(i) the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by that Act); or
(ii) the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.).
(b) Export certification system.—
(1) EXPORT CERTIFICATION REQUIREMENT.—
(A) IN GENERAL.—No Item Requiring Export Certification may be exported from the United States without first having obtained an export certification in accordance with this subsection.
(B) PUBLICATION.—The Secretary, in consultation with Indian Tribes and Native Hawaiian organizations, shall publish in the Federal Register a notice that includes—
(i) a description of characteristics typical of Items Requiring Export Certification, which shall—
(I) include the definitions of the terms—
(aa) “cultural items” in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001); and
(bb) “archaeological resource” in section 3 of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470bb);
(II) describe the provenance requirements associated with the trafficking prohibition applicable to—
(bb) archaeological resources under subsections (b) and (c) of section 6 of Archaeological Resources Protection Act of 1979 (16 U.S.C. 470ee);
(III) (aa) include the definitions of the terms “Native American” and “Native Hawaiian” in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001); and
(ii) a description of characteristics typical of items that do not qualify as Items Requiring Export Certification and therefore do not require an export certification under this subsection, which shall clarify that—
(2) ELIGIBILITY FOR EXPORT CERTIFICATION.—An Item Requiring Export Certification is eligible for an export certification under this subsection if—
(B) the export of the Item Requiring Export Certification would not otherwise violate any other provision of law; and
(C) the Item Requiring Export Certification—
(ii) was excavated or removed pursuant to a permit issued under section 4 of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470cc) and in compliance with section 3(c) of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3002(c)), if the permit for excavation or removal authorizes export; or
(iii) is accompanied by written confirmation from the Indian Tribe or Native Hawaiian organization with authority to alienate the Item Requiring Export Certification that—
(I) the exporter has a right of possession (as defined in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001)) of the Item Requiring Export Certification; or
(II) the Indian Tribe or Native Hawaiian organization has relinquished title or control of the Item Requiring Export Certification in accordance with section 3 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3002).
(3) EXPORT CERTIFICATION APPLICATION AND ISSUANCE PROCEDURES.—
(A) APPLICATIONS FOR EXPORT CERTIFICATION.—
(i) IN GENERAL.—An exporter seeking to export an Item Requiring Export Certification from the United States shall submit to the Secretary an export certification application in accordance with clause (iii).
(ii) CONSEQUENCES OF FALSE STATEMENT.—Any willful or knowing false statement made on an export certification application form under clause (i) shall—
(iii) FORM OF EXPORT CERTIFICATION APPLICATION.—The Secretary, in consultation with Indian Tribes and Native Hawaiian organizations, and at the discretion of the Secretary, in consultation with third parties with relevant expertise, including institutions of higher education, museums, dealers, and collector organizations, shall develop an export certification application form, which shall require that an applicant—
(I) describe, and provide pictures of, each Item Requiring Export Certification that the applicant seeks to export;
(B) EVIDENCE.—
(i) IN GENERAL.—In completing an export certification application with respect to an Item Requiring Export Certification that the exporter seeks to export, the exporter shall attest that, to the best of the knowledge and belief of the exporter, the exporter is not attempting to export an Item Prohibited from Exportation.
(ii) SUFFICIENCY OF ATTESTATION.—An attestation under clause (i) shall be considered to be sufficient evidence to support the application of the exporter under subparagraph (A)(iii)(III), on the condition that the exporter is not required to provide additional evidence under clause (iii)(I).
(iii) ADDITIONAL REQUIREMENTS.—
(I) IN GENERAL.—The Secretary shall give notice to an exporter that submits an export certification application under subparagraph (A)(i) that the exporter is required to submit additional evidence in accordance with subclause (III) if the Secretary has determined under subparagraph (A)(ii) that the exporter made a willful or knowing false statement on the application or any past export certification application.
(II) DELAYS OR DENIALS.—The Secretary shall give notice to an exporter that submits an export certification application under subparagraph (A)(i) that the exporter may submit additional evidence in accordance with subclause (III) if the issuance of an export certification is—
(III) ADDITIONAL EVIDENCE.—On receipt of notice under subclause (I), an exporter shall, or on receipt of a notice under subclause (II), an exporter may, provide the Secretary with such additional evidence as the Secretary may require to establish that the Item Requiring Export Certification is eligible for an export certification under this subsection.
(C) DATABASE APPLICATIONS.—
(i) IN GENERAL.—The Secretary shall establish and maintain a secure central Federal database information system (referred to in this subparagraph as the “database”) for the purpose of making export certification applications available to Indian Tribes and Native Hawaiian organizations.
(ii) COLLABORATION REQUIRED.—The Secretary shall collaborate with Indian Tribes, Native Hawaiian organizations, and the interagency working group convened under section 7(a) in the design and implementation of the database.
(iii) AVAILABILITY.—Immediately on receipt of an export certification application, the Secretary shall make the export certification application available on the database.
(iv) DELETION FROM DATABASE.—On request by an Indian Tribe or Native Hawaiian organization, the Secretary shall delete an export certification application from the database.
(v) TECHNICAL ASSISTANCE.—If an Indian Tribe or Native Hawaiian organization lacks sufficient resources to access the database or respond to agency communications in a timely manner, the Secretary, in consultation with Indian Tribes and Native Hawaiian organizations, shall provide technical assistance to facilitate that access or response, as applicable.
(D) ISSUANCE OF EXPORT CERTIFICATION.—On receipt of an export certification application for an Item Requiring Export Certification that meets the requirements of subparagraphs (A) and (B), if the Secretary, in consultation with Indian Tribes and Native Hawaiian organizations with a cultural affiliation with the Item Requiring Export Certification, determines that the Item Requiring Export Certification is eligible for an export certification under paragraph (2), the Secretary may issue an export certification for the Item Requiring Export Certification.
(E) REVOCATION OF EXPORT CERTIFICATION.—
(4) DETENTION, FORFEITURE, REPATRIATION, AND RETURN.—
(A) DETENTION AND DELIVERY.—The Secretary of Homeland Security, acting through the Commissioner of U.S. Customs and Border Protection, shall—
(B) FORFEITURE.—Any Item Requiring Export Certification that is detained under subparagraph (A)(i) shall be subject to forfeiture to the United States in accordance with chapter 46 of title 18, United States Code (including section 983(c) of that chapter).
(C) REPATRIATION OR RETURN TO EXPORTER.—
(i) IN GENERAL.—Not later than 60 days after the date of delivery to the Secretary of an Item Requiring Export Certification under subparagraph (A)(ii), the Secretary shall determine whether the Item Requiring Export Certification is an Item Prohibited from Exportation.
(ii) REPATRIATION.—If an Item Requiring Export Certification is determined by the Secretary to be an Item Prohibited from Exportation and is forfeited under subparagraph (B), the item shall be expeditiously repatriated to the appropriate Indian Tribe or Native Hawaiian organization in accordance with, as applicable—
(I) the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by that Act); or
(II) the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.).
(iii) RETURN TO EXPORTER.—
(I) IN GENERAL.—If the Secretary determines that credible evidence does not establish that the Item Requiring Export Certification is an Item Prohibited from Exportation, or if the Secretary does not complete the determination by the deadline described in clause (i), the Secretary shall return the Item Requiring Export Certification to the exporter.
(5) PENALTIES.—
(A) ITEMS REQUIRING EXPORT CERTIFICATION.—
(B) ITEMS PROHIBITED FROM EXPORTATION.—Whoever exports an Item Prohibited from Exportation without first securing an export certification shall be liable for a civil money penalty, the amount of which shall equal the total cost of storing and repatriating the Item Prohibited from Exportation.
(C) USE OF FINES COLLECTED.—Any amounts collected by the Secretary as a civil penalty under subparagraph (A)(ii)(I) or (B)—
(i) may be used by the Secretary—
(D) VOLUNTARY RETURN.—
(i) IN GENERAL.—Any person who attempts to export or otherwise transport from the United States an Item Requiring Export Certification without first obtaining an export certification, but voluntarily returns the Item Requiring Export Certification, or directs the Item Requiring Export Certification to be returned, to the appropriate Indian Tribe or Native Hawaiian organization in accordance with section 6 prior to the commencement of an active Federal investigation shall not be prosecuted for a violation of subparagraph (A) with respect to the Item Requiring Export Certification.
(ii) ACTIONS NOT COMMENCING A FEDERAL INVESTIGATION.—For purposes of clause (i), the following actions shall not be considered to be actions that commence an active Federal investigation:
(I) The submission by the exporter of an export certification application for the Item Requiring Export Certification under paragraph (3)(A)(i).
(II) The detention of the Item Requiring Export Certification by the Secretary of Homeland Security, acting through the Commissioner of U.S. Customs and Border Protection, under paragraph (4)(A)(i).
(6) FEES.—
(A) IN GENERAL.—The Secretary may collect reasonable fees to process export certification applications under this subsection.
(7) ADMINISTRATIVE APPEAL.—If the Secretary denies an export certification or an Item Requiring Export Certification is detained under this subsection, the exporter, on request, shall be given a hearing on the record in accordance with such rules and regulations as the Secretary promulgates pursuant to section 10.
(8) TRAINING.—
(A) IN GENERAL.—The Secretary, the Secretary of State, the Attorney General, and the heads of all other relevant Federal agencies shall require all appropriate personnel to participate in training regarding applicable laws and consultations to facilitate positive government-to-government interactions with Indian Tribes and Native Hawaiian Organizations.
(B) U.S. CUSTOMS AND BORDER PROTECTION TRAINING.—The Secretary of Homeland Security, acting through the Commissioner of U.S. Customs and Border Protection, shall require all appropriate personnel of U.S. Customs and Border Protection to participate in training provided by the Secretary of the Interior or an Indian Tribe or Native Hawaiian organization to assist the personnel in identifying, handling, and documenting in a culturally sensitive manner Items Requiring Export Certification for purposes of this Act.
(c) Agreements to request return from foreign countries.—The President may request from foreign nations agreements that specify concrete measures that the foreign nation will carry out—
(3) to expand the market for the products of Indian art and craftsmanship in accordance with section 2 of the Act of August 27, 1935 (49 Stat. 891, chapter 748; 25 U.S.C. 305a) (commonly known as the “Indian Arts and Crafts Act”).
SEC. 6. Voluntary return of tangible cultural heritage.
(a) Liaison.—The Secretary and the Secretary of State shall each designate a liaison to facilitate the voluntary return of tangible cultural heritage.
(b) Trainings and workshops.—The liaisons designated under subsection (a) shall offer to representatives of Indian Tribes and Native Hawaiian organizations and collectors, dealers, and other individuals and organizations trainings and workshops regarding the voluntary return of tangible cultural heritage.
(c) Referrals.—
(1) IN GENERAL.—The Secretary shall refer individuals and organizations to 1 or more Indian Tribes and Native Hawaiian organizations with a cultural affiliation to tangible cultural heritage for the purpose of facilitating the voluntary return of tangible cultural heritage.
(2) REFERRAL REPRESENTATIVES.—The Secretary shall compile a list of representatives from each Indian Tribe and Native Hawaiian organization for purposes of referral under paragraph (1).
(3) CONSULTATION.—The Secretary shall consult with Indian Tribes, Native Hawaiian organizations, and the Native working group convened under section 8(a) before making a referral under paragraph (1).
(4) THIRD-PARTY EXPERTS.—The Secretary may use third parties with relevant expertise, including institutions of higher education, museums, dealers, and collector organizations, in determining to which Indian Tribe or Native Hawaiian organization an individual or organization should be referred under paragraph (1).
(d) Legal liability.—Nothing in this section imposes on any individual or entity any additional penalties or legal liability.
(e) Tax documentation.—In facilitating the voluntary return of tangible cultural heritage under this section, the Secretary shall include provision of tax documentation for a deductible gift to an Indian Tribe or Native Hawaiian organization, if the recipient Indian Tribe or Native Hawaiian organization consents to the provision of tax documentation.
(f) Repatriation under native american graves protection and repatriation act.—The voluntary return provisions of this section shall apply to a specific item of tangible cultural heritage only to the extent that the repatriation provisions under section 7 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3005) do not apply to the item of tangible cultural heritage.
SEC. 7. Interagency working group.
(a) In general.—The Secretary shall designate a coordinating office to convene an interagency working group consisting of representatives from the Departments of the Interior, Justice, State, and Homeland Security.
(b) Goals.—The goals of the interagency working group convened under subsection (a) are—
(1) to facilitate the repatriation to Indian Tribes and Native Hawaiian organizations of items that have been illegally removed or trafficked in violation of applicable law;
(2) to protect tangible cultural heritage, cultural items, and archaeological resources still in the possession of Indian Tribes and Native Hawaiian organizations; and
(3) to improve the implementation by the applicable Federal agencies of—
(A) the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by that Act);
(B) the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.); and
(c) Responsibilities.—The interagency working group convened under subsection (a) shall—
(2) collaborate with—
(B) the review committee established under section 8(a) of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3006(a));
(C) the Cultural Heritage Coordinating Committee established pursuant to section 2 of the Protect and Preserve International Cultural Property Act (Public Law 114–151; 19 U.S.C. 2601 note); and
(a) In general.—The Secretary shall convene a Native working group consisting of not fewer than 12 representatives of Indian Tribes and Native Hawaiian organizations with relevant expertise, who shall be nominated by Indian Tribes and Native Hawaiian organizations, to advise the Federal Government in accordance with this section.
(b) Recommendations.—The Native working group convened under subsection (a) may provide recommendations regarding—
(c) Requests.—The Native working group convened under subsection (a) may make formal requests to initiate certain agency actions, including requests that—
(d) Agency and committee assistance.—
(1) IN GENERAL.—On request by the Native working group convened under subsection (a), the agencies and committees described in paragraph (2) shall make efforts to provide information and assistance to the Native working group.
(2) DESCRIPTION OF AGENCIES AND COMMITTEES.—The agencies and committees referred to in paragraph (1) are the following:
(E) The review committee established under section 8(a) of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3006(a)).
(F) The Cultural Heritage Coordinating Committee established pursuant to section 2 of the Protect and Preserve International Cultural Property Act (Public Law 114–151; 19 U.S.C. 2601 note).
SEC. 9. Treatment under Freedom of Information Act.
(a) In general.—Except as provided in subsection (c), the following information shall be exempt from disclosure under section 552 of title 5, United States Code:
(a) In general.—Not later than 1 year after the date of enactment of this Act, the Secretary, in consultation with the Secretary of State, the Secretary of Homeland Security, and the Attorney General, and after consultation with Indian Tribes and Native Hawaiian organizations, shall promulgate rules and regulations to carry out this Act.
SEC. 11. Authorization of appropriations.
There is authorized to be appropriated to carry out this Act $3,000,000 for each of fiscal years 2021 through 2026.
Calendar No. 608 | |||||
| |||||
[Report No. 116–308] | |||||
A BILL | |||||
To enhance protections of
Native American tangible cultural heritage, and for other purposes. | |||||
December 9, 2020 | |||||
Reported with an amendment |