Federal
Safeguard Tribal Objects of Patrimony Act of 2020
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116TH CONGRESS
2D SESSION
S. 2165
AN ACT
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
2
† S 2165 ES
SECTION 1. SHORT TITLE.
1
This Act may be cited as the ‘‘Safeguard Tribal Ob-
2
jects of Patrimony Act of 2020’’.
3
SEC. 2. PURPOSES.
4
The purposes of this Act are—
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(1) to carry out the trust responsibility of the
6
United States to Indian Tribes;
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(2) to increase the maximum penalty for actions
8
taken in violation of the Native American Graves
9
Protection and Repatriation Act (25 U.S.C. 3001 et
10
seq.) (including section 1170 of title 18, United
11
States Code, as added by that Act), in order to
12
strengthen deterrence;
13
(3) to stop the export, and facilitate the inter-
14
national repatriation, of cultural items prohibited
15
from being trafficked by the Native American
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Graves Protection and Repatriation Act (25 U.S.C.
17
3001 et seq.) (including section 1170 of title 18,
18
United States Code, as added by that Act) and ar-
19
chaeological resources prohibited from being traf-
20
ficked by the Archaeological Resources Protection
21
Act of 1979 (16 U.S.C. 470aa et seq.) by—
22
(A) explicitly prohibiting the export;
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(B) creating an export certification system;
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and
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† S 2165 ES
(C) confirming the authority of the Presi-
1
dent to request from foreign nations agree-
2
ments or provisional measures to prevent irre-
3
mediable damage to Native American cultural
4
heritage;
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(4) to establish a Federal framework in order
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to support the voluntary return by individuals and
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organizations of items of tangible cultural heritage,
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including items covered by the Native American
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Graves Protection and Repatriation Act (25 U.S.C.
10
3001 et seq.) (including section 1170 of title 18,
11
United States Code, as added by that Act) and the
12
Archaeological Resources Protection Act of 1979 (16
13
U.S.C. 470aa et seq.);
14
(5) to establish an interagency working group
15
to ensure communication between Federal agencies
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to successfully implement this Act, the Native Amer-
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ican Graves Protection and Repatriation Act (25
18
U.S.C. 3001 et seq.) (including section 1170 of title
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18, United States Code, as added by that Act), the
20
Archaeological Resources Protection Act of 1979 (16
21
U.S.C. 470aa et seq.), and other relevant Federal
22
laws;
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(6) to establish a Native working group of In-
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dian Tribes and Native Hawaiian organizations to
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† S 2165 ES
assist in the implementation of this Act, the Native
1
American Graves Protection and Repatriation Act
2
(25 U.S.C. 3001 et seq.) (including section 1170 of
3
title 18, United States Code, as added by that Act),
4
the Archaeological Resources Protection Act of 1979
5
(16 U.S.C. 470aa et seq.), and other relevant Fed-
6
eral laws;
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(7) to exempt from disclosure under section 552
8
of title 5, United States Code (commonly known as
9
the ‘‘Freedom of Information Act’’)—
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(A) information submitted by Indian
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Tribes or Native Hawaiian organizations pursu-
12
ant to this Act; and
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(B) information relating to an Item Re-
14
quiring Export Certification for which an export
15
certification was denied pursuant to this Act;
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and
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(8) to encourage buyers to purchase legal con-
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temporary art made by Native artists for commercial
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purposes.
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SEC. 3. DEFINITIONS.
21
In this Act:
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(1) ARCHAEOLOGICAL
RESOURCE.—The term
23
‘‘archaeological resource’’ means an archaeological
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resource (as defined in section 3 of the Archae-
25
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† S 2165 ES
ological Resources Protection Act of 1979 (16
1
U.S.C. 470bb)) that is Native American.
2
(2) CULTURAL AFFILIATION.—The term ‘‘cul-
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tural affiliation’’ means that there is a relationship
4
of shared group identity that can be reasonably
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traced historically or prehistorically between a
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present day Indian Tribe or Native Hawaiian orga-
7
nization and an identifiable earlier group.
8
(3) CULTURAL
ITEM.—The term ‘‘cultural
9
item’’ means any 1 or more cultural items (as de-
10
fined in section 2 of the Native American Graves
11
Protection and Repatriation Act (25 U.S.C. 3001)).
12
(4) INDIAN TRIBE.—The term ‘‘Indian Tribe’’
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has the meaning given the term ‘‘Indian tribe’’ in
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section 2 of the Native American Graves Protection
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and Repatriation Act (25 U.S.C. 3001).
16
(5) ITEM PROHIBITED FROM EXPORTATION.—
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The term ‘‘Item Prohibited from Exportation’’
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means—
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(A) a cultural item prohibited from being
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trafficked, including through sale, purchase, use
21
for profit, or transport for sale or profit, by—
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(i) section 1170(b) of title 18, United
23
States Code, as added by the Native Amer-
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† S 2165 ES
ican Graves Protection and Repatriation
1
Act (25 U.S.C. 3001 et seq.); or
2
(ii) any other Federal law or treaty;
3
and
4
(B) an archaeological resource prohibited
5
from being trafficked, including through sale,
6
purchase, exchange, transport, receipt, or offer
7
to sell, purchase, or exchange, including in
8
interstate or foreign commerce, by—
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(i) subsections (b) and (c) of section
10
6 of the Archaeological Resources Protec-
11
tion Act of 1979 (16 U.S.C. 470ee); or
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(ii) any other Federal law or treaty.
13
(6)
ITEM
REQUIRING
EXPORT
CERTIFI-
14
CATION.—
15
(A) IN
GENERAL.—The term ‘‘Item Re-
16
quiring Export Certification’’ means—
17
(i) a cultural item; and
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(ii) an archaeological resource.
19
(B) EXCLUSION.—The term ‘‘Item Requir-
20
ing Export Certification’’ does not include an
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item described in clause (i) or (ii) of subpara-
22
graph (A) for which an Indian Tribe or Native
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Hawaiian organization with a cultural affili-
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† S 2165 ES
ation with the item has provided a certificate
1
authorizing exportation of the item.
2
(7) NATIVE
AMERICAN.—The term ‘‘Native
3
American’’ means—
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(A) Native American (as defined in section
5
2 of the Native American Graves Protection
6
and Repatriation Act (25 U.S.C. 3001)); and
7
(B) Native Hawaiian (as so defined).
8
(8) NATIVE
HAWAIIAN
ORGANIZATION.—The
9
term ‘‘Native Hawaiian organization’’ has the mean-
10
ing given the term in section 2 of the Native Amer-
11
ican Graves Protection and Repatriation Act (25
12
U.S.C. 3001).
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(9) SECRETARY.—The term ‘‘Secretary’’ means
14
the Secretary of the Interior.
15
(10) TANGIBLE
CULTURAL
HERITAGE.—The
16
term ‘‘tangible cultural heritage’’ means—
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(A) Native American human remains; or
18
(B)
culturally,
historically,
or
19
archaeologically significant objects, resources,
20
patrimony, or other items that are affiliated
21
with a Native American culture.
22
SEC. 4. ENHANCED NAGPRA PENALTIES.
23
Section 1170 of title 18, United States Code, is
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amended—
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† S 2165 ES
(1) by striking ‘‘5 years’’ each place it appears
1
and inserting ‘‘10 years’’; and
2
(2) in subsection (a), by striking ‘‘12 months’’
3
and inserting ‘‘1 year and 1 day’’.
4
SEC. 5. EXPORT PROHIBITIONS; EXPORT CERTIFICATION
5
SYSTEM; INTERNATIONAL AGREEMENTS.
6
(a) EXPORT PROHIBITIONS.—
7
(1) IN GENERAL.—It shall be unlawful for any
8
person—
9
(A) to export, attempt to export, or other-
10
wise transport from the United States any Item
11
Prohibited from Exportation;
12
(B) to conspire with any person to engage
13
in an activity described in subparagraph (A); or
14
(C) to conceal an activity described in sub-
15
paragraph (A).
16
(2) PENALTIES.—Any person who violates
17
paragraph (1) and knows, or in the exercise of due
18
care should have known, that the Item Prohibited
19
from Exportation was taken, possessed, transported,
20
or sold in violation of, or in a manner unlawful
21
under, any Federal law or treaty, shall be fined in
22
accordance with section 3571 of title 18, United
23
States Code, imprisoned for not more than 1 year
24
and 1 day for a first violation, and not more than
25
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† S 2165 ES
10 years for a second or subsequent violation, or
1
both.
2
(3) DETENTION, FORFEITURE, AND REPATRI-
3
ATION.—
4
(A) DETENTION
AND
DELIVERY.—The
5
Secretary of Homeland Security, acting through
6
the Commissioner of U.S. Customs and Border
7
Protection, shall—
8
(i) detain any Item Prohibited from
9
Exportation that is exported, attempted to
10
be exported, or otherwise transported from
11
the United States in violation of paragraph
12
(1); and
13
(ii) deliver the Item Prohibited from
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Exportation to the Secretary.
15
(B) FORFEITURE.—Any Item Prohibited
16
from Exportation that is exported, attempted to
17
be exported, or otherwise transported from the
18
United States in violation of paragraph (1)
19
shall be subject to forfeiture to the United
20
States in accordance with chapter 46 of title
21
18, United States Code (including section
22
983(c) of that chapter).
23
(C) REPATRIATION.—Any Item Prohibited
24
from Exportation that is forfeited under sub-
25
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† S 2165 ES
paragraph (B) shall be expeditiously repatriated
1
to the appropriate Indian Tribe or Native Ha-
2
waiian organization in accordance with, as ap-
3
plicable—
4
(i) the Native American Graves Pro-
5
tection and Repatriation Act (25 U.S.C.
6
3001 et seq.) (including section 1170 of
7
title 18, United States Code, as added by
8
that Act); or
9
(ii) the Archaeological Resources Pro-
10
tection Act of 1979 (16 U.S.C. 470aa et
11
seq.).
12
(b) EXPORT CERTIFICATION SYSTEM.—
13
(1) EXPORT CERTIFICATION REQUIREMENT.—
14
(A) IN GENERAL.—No Item Requiring Ex-
15
port Certification may be exported from the
16
United States without first having obtained an
17
export certification in accordance with this sub-
18
section.
19
(B) PUBLICATION.—The Secretary, in con-
20
sultation with Indian Tribes and Native Hawai-
21
ian organizations, shall publish in the Federal
22
Register a notice that includes—
23
11
† S 2165 ES
(i) a description of characteristics typ-
1
ical of Items Requiring Export Certifi-
2
cation, which shall—
3
(I) include the definitions of the
4
terms—
5
(aa) ‘‘cultural items’’ in sec-
6
tion 2 of the Native American
7
Graves Protection and Repatri-
8
ation Act (25 U.S.C. 3001); and
9
(bb)
‘‘archaeological
re-
10
source’’ in section 3 of the Ar-
11
chaeological Resources Protection
12
Act of 1979 (16 U.S.C. 470bb);
13
(II) describe the provenance re-
14
quirements associated with the traf-
15
ficking prohibition applicable to—
16
(aa) cultural items under
17
section 1170(b) of title 18,
18
United States Code; and
19
(bb) archaeological resources
20
under subsections (b) and (c) of
21
section 6 of Archaeological Re-
22
sources Protection Act of 1979
23
(16 U.S.C. 470ee);
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† S 2165 ES
(III)(aa) include the definitions
1
of the terms ‘‘Native American’’ and
2
‘‘Native Hawaiian’’ in section 2 of the
3
Native American Graves Protection
4
and Repatriation Act (25 U.S.C.
5
3001); and
6
(bb) describe how those terms
7
apply
to
archaeological
resources
8
under this Act; and
9
(IV) be sufficiently specific and
10
precise to ensure that—
11
(aa) an export certification
12
is required only for Items Requir-
13
ing Export Certification; and
14
(bb) fair notice is given to
15
exporters and other persons re-
16
garding which items require an
17
export certification under this
18
subsection; and
19
(ii) a description of characteristics
20
typical of items that do not qualify as
21
Items Requiring Export Certification and
22
therefore do not require an export certifi-
23
cation under this subsection, which shall
24
clarify that—
25
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† S 2165 ES
(I) an item made solely for com-
1
mercial purposes is presumed to not
2
qualify as an Item Requiring Export
3
Certification, unless an Indian Tribe
4
or Native Hawaiian organization chal-
5
lenges that presumption; and
6
(II) in some circumstances, re-
7
ceipts or certifications issued by In-
8
dian Tribes or Native Hawaiian orga-
9
nizations with a cultural affiliation
10
with an item may be used as evidence
11
to demonstrate a particular item does
12
not qualify as an Item Requiring Ex-
13
port Certification.
14
(2)
ELIGIBILITY
FOR
EXPORT
CERTIFI-
15
CATION.—An Item Requiring Export Certification is
16
eligible for an export certification under this sub-
17
section if—
18
(A) the Item Requiring Export Certifi-
19
cation is not under ongoing Federal investiga-
20
tion;
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(B) the export of the Item Requiring Ex-
22
port Certification would not otherwise violate
23
any other provision of law; and
24
14
† S 2165 ES
(C) the Item Requiring Export Certifi-
1
cation—
2
(i) is not an Item Prohibited from Ex-
3
portation;
4
(ii) was excavated or removed pursu-
5
ant to a permit issued under section 4 of
6
the Archaeological Resources Protection
7
Act of 1979 (16 U.S.C. 470cc) and in
8
compliance with section 3(c) of the Native
9
American Graves Protection and Repatri-
10
ation Act (25 U.S.C. 3002(c)), if the per-
11
mit for excavation or removal authorizes
12
export; or
13
(iii) is accompanied by written con-
14
firmation from the Indian Tribe or Native
15
Hawaiian organization with authority to
16
alienate the Item Requiring Export Certifi-
17
cation that—
18
(I) the exporter has a right of
19
possession (as defined in section 2 of
20
the Native American Graves Protec-
21
tion and Repatriation Act (25 U.S.C.
22
3001)) of the Item Requiring Export
23
Certification; or
24
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† S 2165 ES
(II) the Indian Tribe or Native
1
Hawaiian
organization
has
relin-
2
quished title or control of the Item
3
Requiring Export Certification in ac-
4
cordance with section 3 of the Native
5
American Graves Protection and Re-
6
patriation Act (25 U.S.C. 3002).
7
(3) EXPORT CERTIFICATION APPLICATION AND
8
ISSUANCE PROCEDURES.—
9
(A) APPLICATIONS FOR EXPORT CERTIFI-
10
CATION.—
11
(i) IN GENERAL.—An exporter seek-
12
ing to export an Item Requiring Export
13
Certification from the United States shall
14
submit to the Secretary an export certifi-
15
cation application in accordance with
16
clause (iii).
17
(ii) CONSEQUENCES OF FALSE STATE-
18
MENT.—Any willful or knowing false state-
19
ment made on an export certification appli-
20
cation form under clause (i) shall—
21
(I) subject the exporter to crimi-
22
nal penalties pursuant to section 1001
23
of title 18, United States Code; and
24
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† S 2165 ES
(II) prohibit the exporter from
1
receiving an export certification for
2
any Item Requiring Export Certifi-
3
cation in the future unless the ex-
4
porter submits additional evidence in
5
accordance
with
subparagraph
6
(B)(iii)(I).
7
(iii) FORM OF EXPORT CERTIFICATION
8
APPLICATION.—The Secretary, in consulta-
9
tion with Indian Tribes and Native Hawai-
10
ian organizations, and at the discretion of
11
the Secretary, in consultation with third
12
parties with relevant expertise, incl
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