Safeguard Tribal Objects of Patrimony Act of 2019

I 116TH CONGRESS 1ST SESSION H. R. 3846 To enhance protections of Native American tangible cultural heritage, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JULY 18, 2019 Mr. LUJA´N (for himself, Mr. YOUNG, Mr. COLE, Ms. HAALAND, Ms. TORRES SMALL of New Mexico, Mr. O’HALLERAN, Mrs. RADEWAGEN, Mr. COOK, Ms. MCCOLLUM, Mr. CASE, and Mr. LAMALFA) introduced the following bill; which was referred to the Committee on Natural Resources, and in addition to the Committees on the Judiciary, and Foreign Affairs, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the com- mittee concerned 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 2019’’. 5 SEC. 2. PURPOSE. 6 It is the purpose of this Act— 7 VerDate Sep 11 2014 22:43 Jul 22, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3846.IH H3846 pamtmann on DSKBFK8HB2PROD with BILLS 2 •HR 3846 IH (1) to carry out the United States trust respon- 1 sibility to Indian Tribes; 2 (2) to increase the maximum penalty for actions 3 taken in violation of the Native American Graves 4 Protection and Repatriation Act (25 U.S.C. 3001 et 5 seq.) (including section 1170 of title 18, United 6 States Code, as added by the Native American 7 Graves Protection and Repatriation Act), in order to 8 strengthen deterrence; 9 (3) to make internationally applicable the Na- 10 tive American Graves Protection and Repatriation 11 Act (25 U.S.C. 3001 et seq.) (including section 1170 12 of title 18, United States Code, as added by the Na- 13 tive American Graves Protection and Repatriation 14 Act), the Archaeological Resources Protection Act of 15 1979 (16 U.S.C. 470aa et seq.), and the Antiquities 16 Act under section 1866(b) of title 18, United States 17 Code, to facilitate the international repatriation of 18 Native American cultural items, Native American 19 archaeological resources, and Native American ob- 20 jects of antiquity; 21 (4) to access other countries’ domestic laws and 22 law enforcement mechanisms to facilitate inter- 23 national repatriation by explicitly prohibiting the ex- 24 portation of Native American cultural items obtained 25 VerDate Sep 11 2014 22:43 Jul 22, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3846.IH H3846 pamtmann on DSKBFK8HB2PROD with BILLS 3 •HR 3846 IH in violation of the Native American Graves Protec- 1 tion and Repatriation Act (25 U.S.C. 3001 et seq.) 2 (including section 1170 of title 18, United States 3 Code, as added by the Native American Graves Pro- 4 tection and Repatriation Act), Native American ar- 5 chaeological resources obtained in violation of the 6 Archaeological Resources Protection Act of 1979 (16 7 U.S.C. 470aa et seq.), and Native American objects 8 of antiquity obtained in violation of the Antiquities 9 Act under section 1866(b) of title 18, United States 10 Code, and by creating an export certification system; 11 (5) to confirm the authority of the President to 12 request from foreign nations agreements or provi- 13 sional measures under the Convention on the Means 14 of Prohibiting and Preventing the Illicit Import, Ex- 15 port, and Transfer of Ownership of Cultural Prop- 16 erty (823 U.N.T.S. 231 (1972)), to facilitate the re- 17 turn of Native American cultural items obtained in 18 violation of the Native American Graves Protection 19 and Repatriation Act (25 U.S.C. 3001 et seq.) (in- 20 cluding section 1170 of title 18, United States Code, 21 as added by the Native American Graves Protection 22 and Repatriation Act), Native American archae- 23 ological resources obtained in violation of the Ar- 24 chaeological Resources Protection Act of 1979 (16 25 VerDate Sep 11 2014 22:43 Jul 22, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3846.IH H3846 pamtmann on DSKBFK8HB2PROD with BILLS 4 •HR 3846 IH U.S.C. 470aa et seq.), and Native American objects 1 of antiquity obtained in violation of the Antiquities 2 Act under section 1866(b) of title 18, United States 3 Code; 4 (6) to establish a Federal framework in order 5 to support individuals’ and organizations’ voluntary 6 return of items of tangible cultural heritage, which 7 need not be obtained in violation of the Native 8 American Graves Protection and Repatriation Act 9 (25 U.S.C. 3001 et seq.) (including section 1170 of 10 title 18, United States Code, as added by the Native 11 American Graves Protection and Repatriation Act), 12 the Archaeological Resources Protection Act of 1979 13 (16 U.S.C. 470aa et seq.), or the Antiquities Act 14 under section 1866(b) of title 18, United States 15 Code; 16 (7) to establish an interagency working group 17 to ensure communication between all Federal agen- 18 cies to successfully implement the Native American 19 Graves Protection and Repatriation Act (25 U.S.C. 20 3001 et seq.) (including section 1170 of title 18, 21 United States Code, as added by the Native Amer- 22 ican Graves Protection and Repatriation Act), the 23 Archaeological Resources Protection Act of 1979 (16 24 VerDate Sep 11 2014 22:43 Jul 22, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3846.IH H3846 pamtmann on DSKBFK8HB2PROD with BILLS 5 •HR 3846 IH U.S.C. 470aa et seq.), and the Antiquities Act under 1 section 1866(b) of title 18, United States Code; 2 (8) to establish a Tribal working group to pro- 3 vide recommendations regarding implementation of 4 the Native American Graves Protection and Repatri- 5 ation Act (25 U.S.C. 3001 et seq.) (including section 6 1170 of title 18, United States Code, as added by 7 the Native American Graves Protection and Repatri- 8 ation Act), the Archaeological Resources Protection 9 Act of 1979 (16 U.S.C. 470aa et seq.), and the An- 10 tiquities Act under section 1866(b) of title 18, 11 United States Code; and 12 (9) to create a Freedom of Information Act ex- 13 emption for information submitted by Indian Tribes 14 pursuant to this Act. 15 SEC. 3. DEFINITIONS. 16 In this Act, the following definitions apply: 17 (1) CULTURAL AFFILIATION.—The term ‘‘cul- 18 tural affiliation’’ has the meaning given the term in 19 section 2 of the Native American Graves Protection 20 and Repatriation Act (25 U.S.C. 3001). 21 (2) INDIAN TRIBE.—The term ‘‘Indian 22 Tribe’’— 23 (A) has the meaning given the term ‘‘In- 24 dian tribe’’ in section 2 of the Native American 25 VerDate Sep 11 2014 22:43 Jul 22, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3846.IH H3846 pamtmann on DSKBFK8HB2PROD with BILLS 6 •HR 3846 IH Graves Protection and Repatriation Act (25 1 U.S.C. 3001); and 2 (B) includes ‘‘Native Hawaiian organiza- 3 tion’’ as that term is defined in section 2 of the 4 Native American Graves Protection and Repa- 5 triation Act (25 U.S.C. 3001). 6 (3) ITEM REQUIRING EXPORT CERTIFI- 7 CATION.—The term ‘‘Item Requiring Export Certifi- 8 cation’’ means— 9 (A) a Native American ‘‘cultural item’’ as 10 defined in section 2 of the Native American 11 Graves Protection and Repatriation Act (25 12 U.S.C. 3001); 13 (B) a Native American ‘‘archaeological re- 14 source’’ as defined in section 3 of the Archae- 15 ological Resources Protection Act of 1979 (16 16 U.S.C. 470bb); or 17 (C) a Native American ‘‘object of antiq- 18 uity’’ within the meaning of section 1866(b) of 19 title 18, United States Code. 20 (4) ITEM PROHIBITED FROM EXPORTATION.— 21 The term ‘‘Item Prohibited from Exportation’’ 22 means— 23 (A) a Native American ‘‘cultural item’’ as 24 defined in section 2 of the Native American 25 VerDate Sep 11 2014 22:43 Jul 22, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3846.IH H3846 pamtmann on DSKBFK8HB2PROD with BILLS 7 •HR 3846 IH Graves Protection and Repatriation Act (25 1 U.S.C. 3001) and obtained in violation of the 2 Native American Graves Protection and Repa- 3 triation Act (25 U.S.C. 3001 et seq.) (including 4 section 1170 of title 18, United States Code, as 5 added by the Native American Graves Protec- 6 tion and Repatriation Act); 7 (B) a Native American ‘‘archaeological re- 8 source’’ as defined in section 3 of the Archae- 9 ological Resources Protection Act of 1979 (16 10 U.S.C. 470bb) and obtained in violation of the 11 Archaeological Resources Protection Act of 12 1979 (16 U.S.C. 470aa et seq.); 13 (C) a Native American ‘‘object of antiq- 14 uity’’ within the meaning of and obtained in 15 violation of the Antiquities Act under section 16 1866(b) of title 18, United States Code; or 17 (D) a Native American ‘‘cultural item’’ as 18 defined in section 2 of the Native American 19 Graves Protection and Repatriation Act (25 20 U.S.C. 3001), Native American ‘‘archaeological 21 resource’’ as defined in section 3 of the Archae- 22 ological Resources Protection Act of 1979 (16 23 U.S.C. 470bb), or Native American ‘‘object of 24 antiquity’’ within the meaning of the Antiq- 25 VerDate Sep 11 2014 22:43 Jul 22, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3846.IH H3846 pamtmann on DSKBFK8HB2PROD with BILLS 8 •HR 3846 IH uities Act under section 1866(b) of title 18, 1 United States Code, that is under active Fed- 2 eral investigation. 3 (5) NATIVE AMERICAN.—The term ‘‘Native 4 American’’— 5 (A) has the meaning given the term in sec- 6 tion 2 of the Native American Graves Protec- 7 tion and Repatriation Act (25 U.S.C. 3001); 8 and 9 (B) includes ‘‘Native Hawaiian’’ as that 10 term is defined in section 2 of the Native Amer- 11 ican Graves Protection and Repatriation Act 12 (25 U.S.C. 3001). 13 (6) SECRETARY.—The term ‘‘Secretary’’ means 14 the Secretary of the Interior. 15 (7) TANGIBLE CULTURAL HERITAGE.—The 16 term ‘‘tangible cultural heritage’’ means— 17 (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 VerDate Sep 11 2014 22:43 Jul 22, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3846.IH H3846 pamtmann on DSKBFK8HB2PROD with BILLS 9 •HR 3846 IH SEC. 4. ENHANCED NAGPRA PENALTIES. 1 Section 1170 of title 18, United States Code, is 2 amended by striking ‘‘5 years’’ each place it appears and 3 inserting ‘‘10 years’’. 4 SEC. 5. EXPORT PROHIBITION AND CERTIFICATION SYS- 5 TEM AND INTERNATIONAL AGREEMENTS. 6 (a) EXPORT PROHIBITIONS.— 7 (1) IN GENERAL.—It shall be unlawful for any 8 person to export or otherwise transport from the 9 United States any Item Prohibited from Expor- 10 tation. 11 (2) PENALTIES.—Any person who violates 12 paragraph (1) shall be fined in accordance with sec- 13 tion 3571 of title 18, United States Code, and shall 14 be imprisoned for not more than 1 year for a first 15 violation and not more than 10 years for a second 16 or subsequent violation. 17 (b) EXPORT CERTIFICATION SYSTEM.— 18 (1) EXPORT CERTIFICATION REQUIREMENT.— 19 (A) IN GENERAL.—No Item Requiring Ex- 20 port Certification may be exported from the 21 United States without first having obtained an 22 export certification in accordance with this sub- 23 section. 24 VerDate Sep 11 2014 22:43 Jul 22, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3846.IH H3846 pamtmann on DSKBFK8HB2PROD with BILLS 10 •HR 3846 IH (B) PUBLICATION.—The Secretary shall, 1 in consultation with Indian Tribes, publish in 2 the Federal Register a notice that includes— 3 (i) a description of characteristics typ- 4 ical of Items Requiring Export Certifi- 5 cation, which shall be sufficiently specific 6 and precise to ensure an export certifi- 7 cation is required only of such Items Re- 8 quiring Export Certification and that fair 9 notice is given to exporters and other per- 10 sons as to which items require an export 11 certification under this paragraph; and 12 (ii) a description of characteristics 13 typical of items that do not qualify as 14 Items Requiring Export Certification and 15 therefore do not require an export certifi- 16 cation under this paragraph, which shall— 17 (I) clarify that objects made for 18 commercial purposes generally do not 19 qualify as an Item Requiring Export 20 Certification; and 21 (II) clarify that in some cir- 22 cumstances receipts or certifications 23 issued by Indian Tribes may be used 24 as evidence to demonstrate a par- 25 VerDate Sep 11 2014 22:43 Jul 22, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3846.IH H3846 pamtmann on DSKBFK8HB2PROD with BILLS 11 •HR 3846 IH ticular item does not qualify as an 1 Item Requiring Export Certification. 2 (2) ELIGIBILITY FOR EXPORT CERTIFI- 3 CATION.—An Item Requiring Export Certification is 4 not an Item Prohibited from Exportation and is 5 therefore eligible for an export certification if it is 6 not under ongoing Federal investigation and it— 7 (A) was not obtained within the time and 8 location provenance parameters of the Native 9 American Graves Protection and Repatriation 10 Act (25 U.S.C. 3001 et seq.) (including section 11 1170 of title 18, United States Code, as added 12 by the Native American Graves Protection and 13 Repatriation Act), the Archaeological Resources 14 Protection Act of 1979 (16 U.S.C. 470aa et 15 seq.), or the Antiquities Act under section 16 1866(b) of title 18, United States Code, and 17 the export of the Item Requiring Export Cer- 18 tification would not otherwise violate any other 19 provision of law; 20 (B) was excavated or removed pursuant to 21 a permit issued under section 4 of the Archae- 22 ological Resources Protection Act of 1979 (16 23 U.S.C. 470cc) or section 320302 of title 54, 24 United States Code, or in compliance with sec- 25 VerDate Sep 11 2014 22:43 Jul 22, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3846.IH H3846 pamtmann on DSKBFK8HB2PROD with BILLS 12 •HR 3846 IH tion 3(c) of the Native American Graves Pro- 1 tection and Repatriation Act (25 U.S.C. 2 3002(c)), if the permit for excavation or re- 3 moval authorizes export, and the export of the 4 Item Requiring Export Certification would not 5 otherwise violate any other provision of law; or 6 (C) is accompanied by written confirmation 7 from an Indian Tribe that the exporter has a 8 right of possession, as defined in section 2 of 9 the Native American Graves Protection and Re- 10 patriation Act (25 U.S.C. 3001), or that the In- 11 dian Tribe has relinquished title or control, as 12 provided for in section 3 of the Native Amer- 13 ican Graves Protection and Repatriation Act 14 (25 U.S.C. 3 [Text truncated for display. 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