PUBLIC LAW 117–258—DEC. 21, 2022 SAFEGUARD TRIBAL OBJECTS OF PATRIMONY ACT OF 2021 VerDate Sep 11 2014 09:37 Dec 29, 2022 Jkt 039139 PO 00258 Frm 00001 Fmt 6579 Sfmt 6579 E:\PUBLAW\PUBL258.117 PUBL258 dkrause on LAP5T8D0R2PROD with PUBLAWS 136 STAT. 2372 PUBLIC LAW 117–258—DEC. 21, 2022 Public Law 117–258 117th Congress An Act 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, SECTION 1. SHORT TITLE. This Act may be cited as the ‘‘Safeguard Tribal Objects of Patrimony Act of 2021’’. SEC. 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 repa- triation, 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 cul- tural 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 imple- ment 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), 25 USC 3071. Safeguard Tribal Objects of Patrimony Act of 2021. 25 USC 3071 note. Dec. 21, 2022 [H.R. 2930] VerDate Sep 11 2014 09:37 Dec 29, 2022 Jkt 039139 PO 00258 Frm 00002 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL258.117 PUBL258 dkrause on LAP5T8D0R2PROD with PUBLAWS 136 STAT. 2373 PUBLIC LAW 117–258—DEC. 21, 2022 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 implementa- tion 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. SEC. 3. DEFINITIONS. In this Act: (1) ARCHAEOLOGICAL RESOURCE.—The term ‘‘archaeological resource’’ means an archaeological resource (as defined in sec- tion 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 trans- port 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 Archae- ological Resources Protection Act of 1979 (16 U.S.C. 470ee); or (ii) any other Federal law or treaty. (6) ITEM REQUIRING EXPORT CERTIFICATION.— 25 USC 3072. VerDate Sep 11 2014 09:37 Dec 29, 2022 Jkt 039139 PO 00258 Frm 00003 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL258.117 PUBL258 dkrause on LAP5T8D0R2PROD with PUBLAWS 136 STAT. 2374 PUBLIC LAW 117–258—DEC. 21, 2022 (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 expor- tation 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 Repatri- ation 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 signifi- cant objects, resources, patrimony, or other items that are affiliated with a Native American culture. SEC. 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’’; and (2) in subsection (a), by striking ‘‘12 months’’ and inserting ‘‘1 year and 1 day’’. SEC. 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 Expor- tation; (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, pos- sessed, 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 subse- quent violation, or both. (3) DETENTION, FORFEITURE, AND REPATRIATION.— 25 USC 3073. VerDate Sep 11 2014 09:37 Dec 29, 2022 Jkt 039139 PO 00258 Frm 00004 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL258.117 PUBL258 dkrause on LAP5T8D0R2PROD with PUBLAWS 136 STAT. 2375 PUBLIC LAW 117–258—DEC. 21, 2022 (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 para- graph (1); and (ii) deliver the Item Prohibited from Exportation to the Secretary. (B) FORFEITURE.—Any Item Prohibited from Expor- tation that is exported, attempted to be exported, or other- wise 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 Expor- tation 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 Certifi- cation 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 Repa- triation 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 sub- sections (b) and (c) of section 6 of Archae- ological Resources Protection Act of 1979 (16 U.S.C. 470ee); (III)(aa) include the definitions of the terms ‘‘Native American’’ and ‘‘Native Hawaiian’’ in sec- tion 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001); and Federal Register, publication. Notice. VerDate Sep 11 2014 09:37 Dec 29, 2022 Jkt 039139 PO 00258 Frm 00005 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL258.117 PUBL258 dkrause on LAP5T8D0R2PROD with PUBLAWS 136 STAT. 2376 PUBLIC LAW 117–258—DEC. 21, 2022 (bb) describe how those terms apply to archae- ological 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 Certifi- cation and therefore do not require an export certifi- cation under this subsection, which shall clarify that— (I) an item made solely for commercial pur- poses 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 certifi- cations issued by Indian Tribes or Native Hawaiian organizations with a cultural affiliation with an item may be used as evidence to dem- onstrate 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 certifi- cation under this subsection if— (A) the Item Requiring Export Certification is not under ongoing Federal investigation; (B) the export of the Item Requiring Export Certifi- cation 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 compli- ance 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 Certifi- cation 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 accord- ance with section 3 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3002). (3) EXPORT CERTIFICATION APPLICATION AND ISSUANCE PROCEDURES.— VerDate Sep 11 2014 09:37 Dec 29, 2022 Jkt 039139 PO 00258 Frm 00006 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL258.117 PUBL258 dkrause on LAP5T8D0R2PROD with PUBLAWS 136 STAT. 2377 PUBLIC LAW 117–258—DEC. 21, 2022 (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 certifi- cation 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 sub- mits additional evidence in accordance with subparagraph (B)(iii)(I). (iii) FORM OF EX [Text truncated for display. Full text available on Congress.gov.]