Safeguard Tribal Objects of Patrimony Act of 2021

II Calendar No. 109 117TH CONGRESS 1ST SESSION S. 1471 [Report No. 117–33] To enhance protections of Native American tangible cultural heritage, and for other purposes. IN THE SENATE OF THE UNITED STATES APRIL 29, 2021 Mr. HEINRICH (for himself, Ms. MURKOWSKI, Ms. CORTEZ MASTO, Mr. CRAPO, Mr. LUJA´N, Mr. DAINES, Ms. SINEMA, Mr. ROUNDS, Ms. ROSEN, Mr. LANKFORD, Ms. BALDWIN, and Mr. SULLIVAN) introduced the fol- lowing bill; which was read twice and referred to the Committee on In- dian Affairs JULY 28, 2021 Reported by Mr. SCHATZ, without amendment A BILL To enhance protections of Native American tangible cultural heritage, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Safeguard Tribal Ob- 4 jects of Patrimony Act of 2021’’. 5 VerDate Sep 11 2014 21:53 Jul 28, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1471.RS S1471 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 1471 RS SEC. 2. PURPOSES. 1 The purposes of this Act are— 2 (1) to carry out the trust responsibility of the 3 United States to Indian Tribes; 4 (2) to increase the maximum penalty for actions 5 taken in violation of the Native American Graves 6 Protection and Repatriation Act (25 U.S.C. 3001 et 7 seq.) (including section 1170 of title 18, United 8 States Code, as added by that Act), in order to 9 strengthen deterrence; 10 (3) to stop the export, and facilitate the inter- 11 national repatriation, of cultural items prohibited 12 from being trafficked by the Native American 13 Graves Protection and Repatriation Act (25 U.S.C. 14 3001 et seq.) (including section 1170 of title 18, 15 United States Code, as added by that Act) and ar- 16 chaeological resources prohibited from being traf- 17 ficked by the Archaeological Resources Protection 18 Act of 1979 (16 U.S.C. 470aa et seq.) by— 19 (A) explicitly prohibiting the export; 20 (B) creating an export certification system; 21 and 22 (C) confirming the authority of the Presi- 23 dent to request from foreign nations agree- 24 ments or provisional measures to prevent irre- 25 VerDate Sep 11 2014 21:53 Jul 28, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1471.RS S1471 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 1471 RS mediable damage to Native American cultural 1 heritage; 2 (4) to establish a Federal framework in order 3 to support the voluntary return by individuals and 4 organizations of items of tangible cultural heritage, 5 including items covered by the Native American 6 Graves Protection and Repatriation Act (25 U.S.C. 7 3001 et seq.) (including section 1170 of title 18, 8 United States Code, as added by that Act) and the 9 Archaeological Resources Protection Act of 1979 (16 10 U.S.C. 470aa et seq.); 11 (5) to establish an interagency working group 12 to ensure communication between Federal agencies 13 to successfully implement this Act, the Native Amer- 14 ican Graves Protection and Repatriation Act (25 15 U.S.C. 3001 et seq.) (including section 1170 of title 16 18, United States Code, as added by that Act), the 17 Archaeological Resources Protection Act of 1979 (16 18 U.S.C. 470aa et seq.), and other relevant Federal 19 laws; 20 (6) to establish a Native working group of In- 21 dian Tribes and Native Hawaiian organizations to 22 assist in the implementation of this Act, the Native 23 American Graves Protection and Repatriation Act 24 (25 U.S.C. 3001 et seq.) (including section 1170 of 25 VerDate Sep 11 2014 21:53 Jul 28, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1471.RS S1471 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 1471 RS title 18, United States Code, as added by that Act), 1 the Archaeological Resources Protection Act of 1979 2 (16 U.S.C. 470aa et seq.), and other relevant Fed- 3 eral laws; 4 (7) to exempt from disclosure under section 552 5 of title 5, United States Code (commonly known as 6 the ‘‘Freedom of Information Act’’)— 7 (A) information submitted by Indian 8 Tribes or Native Hawaiian organizations pursu- 9 ant to this Act; and 10 (B) information relating to an Item Re- 11 quiring Export Certification for which an export 12 certification was denied pursuant to this Act; 13 and 14 (8) to encourage buyers to purchase legal con- 15 temporary art made by Native artists for commercial 16 purposes. 17 SEC. 3. DEFINITIONS. 18 In this Act: 19 (1) ARCHAEOLOGICAL RESOURCE.—The term 20 ‘‘archaeological resource’’ means an archaeological 21 resource (as defined in section 3 of the Archae- 22 ological Resources Protection Act of 1979 (16 23 U.S.C. 470bb)) that is Native American. 24 VerDate Sep 11 2014 21:53 Jul 28, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1471.RS S1471 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 1471 RS (2) CULTURAL AFFILIATION.—The term ‘‘cul- 1 tural affiliation’’ means that there is a relationship 2 of shared group identity that can be reasonably 3 traced historically or prehistorically between a 4 present day Indian Tribe or Native Hawaiian orga- 5 nization and an identifiable earlier group. 6 (3) CULTURAL ITEM.—The term ‘‘cultural 7 item’’ means any 1 or more cultural items (as de- 8 fined in section 2 of the Native American Graves 9 Protection and Repatriation Act (25 U.S.C. 3001)). 10 (4) INDIAN TRIBE.—The term ‘‘Indian Tribe’’ 11 has the meaning given the term ‘‘Indian tribe’’ in 12 section 2 of the Native American Graves Protection 13 and Repatriation Act (25 U.S.C. 3001). 14 (5) ITEM PROHIBITED FROM EXPORTATION.— 15 The term ‘‘Item Prohibited from Exportation’’ 16 means— 17 (A) a cultural item prohibited from being 18 trafficked, including through sale, purchase, use 19 for profit, or transport for sale or profit, by— 20 (i) section 1170(b) of title 18, United 21 States Code, as added by the Native Amer- 22 ican Graves Protection and Repatriation 23 Act (25 U.S.C. 3001 et seq.); or 24 VerDate Sep 11 2014 21:53 Jul 28, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1471.RS S1471 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 1471 RS (ii) any other Federal law or treaty; 1 and 2 (B) an archaeological resource prohibited 3 from being trafficked, including through sale, 4 purchase, exchange, transport, receipt, or offer 5 to sell, purchase, or exchange, including in 6 interstate or foreign commerce, by— 7 (i) subsections (b) and (c) of section 8 6 of the Archaeological Resources Protec- 9 tion Act of 1979 (16 U.S.C. 470ee); or 10 (ii) any other Federal law or treaty. 11 (6) ITEM REQUIRING EXPORT CERTIFI- 12 CATION.— 13 (A) IN GENERAL.—The term ‘‘Item Re- 14 quiring Export Certification’’ means— 15 (i) a cultural item; and 16 (ii) an archaeological resource. 17 (B) EXCLUSION.—The term ‘‘Item Requir- 18 ing Export Certification’’ does not include an 19 item described in clause (i) or (ii) of subpara- 20 graph (A) for which an Indian Tribe or Native 21 Hawaiian organization with a cultural affili- 22 ation with the item has provided a certificate 23 authorizing exportation of the item. 24 VerDate Sep 11 2014 21:53 Jul 28, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1471.RS S1471 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 1471 RS (7) NATIVE AMERICAN.—The term ‘‘Native 1 American’’ means— 2 (A) Native American (as defined in section 3 2 of the Native American Graves Protection 4 and Repatriation Act (25 U.S.C. 3001)); and 5 (B) Native Hawaiian (as so defined). 6 (8) NATIVE HAWAIIAN ORGANIZATION.—The 7 term ‘‘Native Hawaiian organization’’ has the mean- 8 ing given the term in section 2 of the Native Amer- 9 ican Graves Protection and Repatriation Act (25 10 U.S.C. 3001). 11 (9) SECRETARY.—The term ‘‘Secretary’’ means 12 the Secretary of the Interior. 13 (10) TANGIBLE CULTURAL HERITAGE.—The 14 term ‘‘tangible cultural heritage’’ means— 15 (A) Native American human remains; or 16 (B) culturally, historically, or 17 archaeologically significant objects, resources, 18 patrimony, or other items that are affiliated 19 with a Native American culture. 20 SEC. 4. ENHANCED NAGPRA PENALTIES. 21 Section 1170 of title 18, United States Code, is 22 amended— 23 (1) by striking ‘‘5 years’’ each place it appears 24 and inserting ‘‘10 years’’; and 25 VerDate Sep 11 2014 21:53 Jul 28, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1471.RS S1471 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 1471 RS (2) in subsection (a), by striking ‘‘12 months’’ 1 and inserting ‘‘1 year and 1 day’’. 2 SEC. 5. EXPORT PROHIBITIONS; EXPORT CERTIFICATION 3 SYSTEM; INTERNATIONAL AGREEMENTS. 4 (a) EXPORT PROHIBITIONS.— 5 (1) IN GENERAL.—It shall be unlawful for any 6 person— 7 (A) to export, attempt to export, or other- 8 wise transport from the United States any Item 9 Prohibited from Exportation; 10 (B) to conspire with any person to engage 11 in an activity described in subparagraph (A); or 12 (C) to conceal an activity described in sub- 13 paragraph (A). 14 (2) PENALTIES.—Any person who violates 15 paragraph (1) and knows, or in the exercise of due 16 care should have known, that the Item Prohibited 17 from Exportation was taken, possessed, transported, 18 or sold in violation of, or in a manner unlawful 19 under, any Federal law or treaty, shall be fined in 20 accordance with section 3571 of title 18, United 21 States Code, imprisoned for not more than 1 year 22 and 1 day for a first violation, and not more than 23 10 years for a second or subsequent violation, or 24 both. 25 VerDate Sep 11 2014 21:53 Jul 28, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1471.RS S1471 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 1471 RS (3) DETENTION, FORFEITURE, AND REPATRI- 1 ATION.— 2 (A) DETENTION AND DELIVERY.—The 3 Secretary of Homeland Security, acting through 4 the Commissioner of U.S. Customs and Border 5 Protection, shall— 6 (i) detain any Item Prohibited from 7 Exportation that is exported, attempted to 8 be exported, or otherwise transported from 9 the United States in violation of paragraph 10 (1); and 11 (ii) deliver the Item Prohibited from 12 Exportation to the Secretary. 13 (B) FORFEITURE.—Any Item Prohibited 14 from Exportation that is exported, attempted to 15 be exported, or otherwise transported from the 16 United States in violation of paragraph (1) 17 shall be subject to forfeiture to the United 18 States in accordance with chapter 46 of title 19 18, United States Code (including section 20 983(c) of that chapter). 21 (C) REPATRIATION.—Any Item Prohibited 22 from Exportation that is forfeited under sub- 23 paragraph (B) shall be expeditiously repatriated 24 to the appropriate Indian Tribe or Native Ha- 25 VerDate Sep 11 2014 21:53 Jul 28, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1471.RS S1471 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 1471 RS waiian organization in accordance with, as ap- 1 plicable— 2 (i) the Native American Graves Pro- 3 tection and Repatriation Act (25 U.S.C. 4 3001 et seq.) (including section 1170 of 5 title 18, United States Code, as added by 6 that Act); or 7 (ii) the Archaeological Resources Pro- 8 tection Act of 1979 (16 U.S.C. 470aa et 9 seq.). 10 (b) EXPORT CERTIFICATION SYSTEM.— 11 (1) EXPORT CERTIFICATION REQUIREMENT.— 12 (A) IN GENERAL.—No Item Requiring Ex- 13 port Certification may be exported from the 14 United States without first having obtained an 15 export certification in accordance with this sub- 16 section. 17 (B) PUBLICATION.—The Secretary, in con- 18 sultation with Indian Tribes and Native Hawai- 19 ian organizations, shall publish in the Federal 20 Register a notice that includes— 21 (i) a description of characteristics typ- 22 ical of Items Requiring Export Certifi- 23 cation, which shall— 24 VerDate Sep 11 2014 21:53 Jul 28, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1471.RS S1471 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 1471 RS (I) include the definitions of the 1 terms— 2 (aa) ‘‘cultural items’’ in sec- 3 tion 2 of the Native American 4 Graves Protection and Repatri- 5 ation Act (25 U.S.C. 3001); and 6 (bb) ‘‘archaeological re- 7 source’’ in section 3 of the Ar- 8 chaeological Resources Protection 9 Act of 1979 (16 U.S.C. 470bb); 10 (II) describe the provenance re- 11 quirements associated with the traf- 12 ficking prohibition applicable to— 13 (aa) cultural items under 14 section 1170(b) of title 18, 15 United States Code; and 16 (bb) archaeological resources 17 under subsections (b) and (c) of 18 section 6 of Archaeological Re- 19 sources Protection Act of 1979 20 (16 U.S.C. 470ee); 21 (III)(aa) include the definitions 22 of the terms ‘‘Native American’’ and 23 ‘‘Native Hawaiian’’ in section 2 of the 24 Native American Graves Protection 25 VerDate Sep 11 2014 21:53 Jul 28, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1471.RS S1471 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 1471 RS and Repatriation Act (25 U.S.C. 1 3001); and 2 (bb) describe how those terms 3 apply to archaeological resources 4 under this Act; and 5 (IV) be sufficiently specific and 6 precise to ensure that— 7 (aa) an export certification 8 is required only for Items Requir- 9 ing Export Certification; and 10 (bb) fair notice is given to 11 exporters and other persons re- 12 garding which items require an 13 export certification under this 14 subsection; and 15 (ii) a description of characteristics 16 typical of items that do not qualify as 17 Items Requiring Export Certification and 18 therefore do not require an export certifi- 19 cation under this subsection, which shall 20 clarify that— 21 (I) an item made solely for com- 22 mercial purposes is presumed to not 23 qualify as an Item Requiring Export 24 Certification, unless an Indian Tribe 25 VerDate Sep 11 2014 21:53 Jul 28, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1471.RS S1471 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 1471 RS or Native Hawaiian organization chal- 1 lenges that presumption; and 2 (II) in some circumstances, re- 3 ceipts or certifications issued by In- 4 dian Tribes or Native Hawaiian orga- 5 nizations with a cultural affiliation 6 with an item may be used as evidence 7 to demonstrate a particular item does 8 not qualify as an Item Requiring Ex- 9 port Certification. 10 (2) ELIGIBILITY FOR EXPORT CERTIFI- 11 CATION.—An Item Requiring Export Certification is 12 eligible for an export certification under this sub- 13 section if— 14 (A) the Item Requiring Export Certifi- 15 cation is not under ongoing Federal investiga- 16 tion; 17 (B) the export of the Item Requiring Ex- 18 port Certification would not otherwise violate 19 any other provision of law; and 20 (C) the Item R [Text truncated for display. 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