skip to main content

S. 2165 (116th): Safeguard Tribal Objects of Patrimony Act of 2020


The text of the bill below is as of Dec 9, 2020 (Reported by Senate Committee).


II

Calendar No. 608

116th CONGRESS

2d Session

S. 2165

[Report No. 116–308]

IN THE SENATE OF THE UNITED STATES

July 18, 2019

(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 , with an amendment

Strike out all after the enacting clause and insert the part printed in italic

A BILL

To enhance protections of Native American tangible cultural heritage, and for other purposes.

1.

Short title

This Act may be cited as the Safeguard Tribal Objects of Patrimony Act of 2019.

2.

Purpose

It is the purpose of this Act—

(1)

to carry out the United States trust responsibility to Indian Tribes;

(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

(9)

to create a Freedom of Information Act exemption for information submitted by Indian Tribes pursuant to this Act.

3.

Definitions

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).

(6)

Secretary

The term Secretary means the Secretary of the Interior.

(7)

Tangible cultural heritage

The term tangible cultural heritage means—

(A)

Native American human remains; or

(B)

culturally, historically, or archaeologically significant objects, resources, patrimony, or other items that are affiliated with a Native American culture.

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.

5.

Export prohibition and certification system and international agreements

(a)

Export prohibitions

(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)

Attestation

(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.

(d)

Rules and regulations

All rules and regulations necessary and appropriate to carry out the provisions of this section shall be prescribed by the Secretary and shall be made in consultation with Indian Tribes.

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.

(c)

Referrals

(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).

(d)

Legal liability

This section shall not impose additional penalties or legal liability.

(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.

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.

(c)

Responsibilities

The interagency working group shall aid in implementation of other provisions of this Act or the amendments made by this Act, including regarding voluntary return and halting international sales, and shall collaborate with the Tribal working group created pursuant to this Act.

8.

Tribal working group

(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.

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.

(b)

Exception

An Indian Tribe may request and shall receive its own information, as described in subsection (a), from the Federal agency to which it submitted its information.

1.

Short title

This Act may be cited as the Safeguard Tribal Objects of Patrimony Act of 2020.

2.

Purposes

The purposes of this Act are—

(1)

to carry out the trust responsibility of the United States to Indian Tribes;

(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—

(A)

explicitly prohibiting the export;

(B)

creating an export certification system; and

(C)

confirming the authority of the President to request from foreign nations agreements or provisional measures to prevent irremediable damage to Native American cultural heritage;

(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;

(7)

to exempt from disclosure under section 552 of title 5, United States Code (commonly known as the Freedom of Information Act)—

(A)

information submitted by Indian Tribes or Native Hawaiian organizations pursuant to this Act; and

(B)

information relating to an Item Requiring Export Certification for which an export certification was denied pursuant to this Act; and

(8)

to encourage buyers to purchase legal contemporary art made by Native artists for commercial purposes.

3.

Definitions

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

(ii)

any other Federal law or treaty; and

(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

(ii)

any other Federal law or treaty.

(6)

Item requiring export certification

(A)

In general

The term Item Requiring Export Certification means—

(i)

a cultural item; and

(ii)

an archaeological resource.

(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

(B)

Native Hawaiian (as so defined).

(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).

(9)

Secretary

The term Secretary means the Secretary of the Interior.

(10)

Tangible cultural heritage

The term tangible cultural heritage means—

(A)

Native American human remains; or

(B)

culturally, historically, or archaeologically significant objects, resources, patrimony, or other items that are affiliated with a Native American culture.

4.

Enhanced NAGPRA penalties

Section 1170 of title 18, United States Code, is amended—

(1)

by striking 5 years each place it appears and inserting 10 years;

(2)

in subsection (a), by striking 12 months and inserting 1 year and 1 day; and

(3)

in subsection (b), by striking one year and inserting 1 year and 1 day.

5.

Export prohibitions; export certification system; international agreements

(a)

Export prohibitions

(1)

In general

It shall be unlawful for any person—

(A)

to export, attempt to export, or otherwise transport from the United States any Item Prohibited from Exportation;

(B)

to conspire with any person to engage in an activity described in subparagraph (A); or

(C)

to conceal an activity described in subparagraph (A).

(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—

(i)

detain any Item Prohibited from Exportation that is exported, attempted to be exported, or otherwise transported from the United States in violation of paragraph (1); and

(ii)

deliver the Item Prohibited from Exportation to the Secretary.

(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—

(aa)

cultural items under section 1170(b) of title 18, United States Code; and

(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

(bb)

describe how those terms apply to archaeological resources under this Act; and

(IV)

be sufficiently specific and precise to ensure that—

(aa)

an export certification is required only for Items Requiring Export Certification; and

(bb)

fair notice is given to exporters and other persons regarding which items require an export certification under this subsection; 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—

(I)

an item made solely for commercial purposes is presumed to not qualify as an Item Requiring Export Certification, unless an Indian Tribe or Native Hawaiian organization challenges that presumption; and

(II)

in some circumstances, receipts or certifications issued by Indian Tribes or Native Hawaiian organizations with a cultural affiliation with an item 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 eligible for an export certification under this subsection if—

(A)

the Item Requiring Export Certification is not under ongoing Federal investigation;

(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—

(i)

is not an Item Prohibited from Exportation;

(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—

(I)

subject the exporter to criminal penalties pursuant to section 1001 of title 18, United States Code; and

(II)

prohibit the exporter from receiving an export certification for any Item Requiring Export Certification in the future unless the exporter submits additional evidence in accordance with subparagraph (B)(iii)(I).

(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;

(II)

include all available information regarding the provenance of each such Item Requiring Export Certification; and

(III)

include the attestation described in subparagraph (B)(i).

(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—

(aa)

delayed pursuant to the examination by the Secretary of the eligibility of the Item Requiring Export Certification for an export certification; or

(bb)

denied by the Secretary because the Secretary determined that the Item Requiring Export Certification is not eligible for an export certification under this subsection.

(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

(i)

In general

If credible evidence is provided that indicates that an item that received an export certification under subparagraph (D) is not eligible for an export certification under paragraph (2), the Secretary may immediately revoke the export certification.

(ii)

Determination

In determining whether a revocation is warranted under clause (i), the Secretary shall consult with Indian Tribes and Native Hawaiian organizations with a cultural affiliation with the affected Item Requiring 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—

(i)

detain any Item Requiring Export Certification that an exporter attempts to export or otherwise transport without an export certification; and

(ii)

deliver the Item Requiring Export Certification to the Secretary, for seizure by the Secretary.

(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.

(II)

Effect

The return of an Item Requiring Export Certification to an exporter under subclause (I) shall not mean that the Item Requiring Export Certification is eligible for an export certification under this subsection.

(5)

Penalties

(A)

Items requiring export certification

(i)

In general

It shall be unlawful for any person to export, attempt to export, or otherwise transport from the United States any Item Requiring Export Certification without first obtaining an export certification.

(ii)

Penalties

Except as provided in subparagraph (D), any person who violates clause (i) shall be—

(I)

assessed a civil penalty in accordance with such regulations as the Secretary promulgates pursuant to section 10; and

(II)

subject to any other applicable penalties under this Act.

(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—

(I)

for fines collected under subparagraph (A)(ii)(I), to process export certification applications under this subsection; and

(II)

for fines collected under subparagraph (B), to store and repatriate the Item Prohibited from Exportation;

(ii)

shall supplement (and not supplant) any appropriations to the Secretary to carry out this subsection; and

(iii)

shall not be covered into the Treasury as miscellaneous receipts.

(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).

(III)

The delivery to the Secretary 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)(ii).

(IV)

The seizure by the Secretary of the Item Requiring Export Certification under paragraph (4)(A)(ii).

(6)

Fees

(A)

In general

The Secretary may collect reasonable fees to process export certification applications under this subsection.

(B)

Availability of amounts collected

Any amounts collected by the Secretary under subparagraph (A)—

(i)

shall supplement (and not supplant) any appropriations to the Secretary for the activities described in subparagraph (A); and

(ii)

shall not be covered into the Treasury as miscellaneous receipts.

(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)

Consultation

In developing or modifying and delivering trainings under subparagraphs (A) and (B), the applicable heads of Federal agencies shall consult with Indian Tribes and Native Hawaiian organizations.

(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—

(1)

to discourage commerce in, and collection of, Items Prohibited from Exportation;

(2)

to encourage the voluntary return of tangible cultural heritage; and

(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).

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.

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)

other relevant Federal laws.

(c)

Responsibilities

The interagency working group convened under subsection (a) shall—

(1)

aid in implementation of this Act and the amendments made by this Act, including by aiding in—

(A)

the voluntary return of tangible cultural heritage under section 6; and

(B)

halting international sales of items that are prohibited from being trafficked under Federal law; and

(2)

collaborate with—

(A)

the Native working group convened under section 8(a);

(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

(D)

any other relevant committees and working groups.

8.

Native working group

(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—

(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 of cultural items and archaeological resources in the United States and foreign markets.

(c)

Requests

The Native working group convened under subsection (a) may make formal requests to initiate certain agency actions, including requests that—

(1)

the Department of Justice initiate judicial proceedings domestically or abroad to aid in the repatriation cultural items and archaeological resources; and

(2)

the Department of State initiate dialogue through diplomatic channels to aid in that repatriation.

(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:

(A)

The Department of the Interior.

(B)

The Department of Justice.

(C)

The Department of Homeland Security.

(D)

The Department of State.

(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).

(G)

Any other relevant Federal agency, committee, or working group.

(e)

Applicability of Federal Advisory Committee Act

The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the Native working group convened under subsection (a).

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:

(1)

Information that a representative of an Indian Tribe or Native Hawaiian organization—

(A)

submits to a Federal agency pursuant to this Act or an amendment made by this Act; and

(B)

designates as sensitive or private according to Native American custom, law, culture, or religion.

(2)

Information that any person submits to a Federal agency pursuant to this Act or an amendment made by this Act that relates to an item for which an export certification is denied under this Act.

(b)

Applicability

For purposes of subsection (a), this Act shall be considered a statute described in section 552(b)(3)(B) of title 5, United States Code.

(c)

Exception

An Indian Tribe or Native Hawaiian organization may request and shall receive its own information, as described in subsection (a), from the Federal agency to which the Indian Tribe or Native Hawaiian organization submitted the information.

10.

Regulations

(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.

(b)

Inclusion

The regulations promulgated by the Secretary pursuant to subsection (a) shall include a reasonable deadline by which the Secretary shall approve or deny an export certification application under section 5(b).

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.

December 9, 2020

Reported with an amendment