U.S. GOVERNMENT PUBLISHING OFFICE

30–106 PDF WASHINGTON : 2018

S. HRG. 115–236 

S. 465 AND S. 1400 

HEARING 

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

NOVEMBER 8, 2017 

Printed for the use of the Committee on Indian Affairs 

( 

(II) 

COMMITTEE ON INDIAN AFFAIRS 

JOHN HOEVEN, North Dakota, Chairman 

TOM UDALL, New Mexico, Vice Chairman 

JOHN BARRASSO, Wyoming 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

JAMES LANKFORD, Oklahoma 

STEVE DAINES, Montana 

MIKE CRAPO, Idaho 

JERRY MORAN, Kansas 

MARIA CANTWELL, Washington 

JON TESTER, Montana, 

AL FRANKEN, Minnesota 

BRIAN SCHATZ, Hawaii 

HEIDI HEITKAMP, North Dakota 

CATHERINE CORTEZ MASTO, Nevada 

T. MICHAEL ANDREWS, Majority Staff Director and Chief Counsel 

JENNIFER ROMERO, Minority Staff Director and Chief Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on November 8, 2017 ........................................................................ 1 

Statement of Senator Cortez Masto ....................................................................... 32 

Statement of Senator Heinrich ............................................................................... 6 

Statement of Senator Hoeven ................................................................................. 1 

Statement of Senator Rounds ................................................................................. 4 

Statement of Senator Udall .................................................................................... 2 

WITNESSES

Flute, Hon. Dave, Chairman, Sisseton Wahpeton Oyate of the Lake Traverse 

Reservation ........................................................................................................... 13 

Prepared statement .......................................................................................... 15 

Fowler, Elizabeth A., Deputy Director, Management Operations, Indian 

Health Service, U.S. Department of Health and Human Services .................. 9 

Prepared statement .......................................................................................... 11 

Riley, Hon. Kurt, Governor, Pueblo of Acoma ....................................................... 20 

Prepared statement .......................................................................................... 21 

Tahsuda III, John, Principal Deputy Assistant Secretary, Indian Affairs, U.S. 

Department of the Interior .................................................................................. 8 

Prepared statement .......................................................................................... 9 

APPENDIX

Begaye, Hon. Russell, President, Navajo Nation, prepared statement ............... 69 

Fox, Hon. Mark N., Chairman, Mandan, Hidatsa and Arikara Nation of 

the Fort Berthold Reservation, prepared statement ......................................... 50 

Gibbon, Kate Fitz, Executive Director, Committee for Cultural Policy, prepared statement ................................................................................................... 63 

Hawley, Vinton, Chairperson, National Indian Health Board (NIHB), prepared statement ................................................................................................... 58 

Letters of support submitted for the record by: 

Association on American Indian Affairs (AAIA) ............................................ 73 

LoRenzo Bates, Speaker, Office of the Speaker. 23rd Navajo Nation Council .................................................................................................................... 80 

Hon. Russell Begaye, President, Navajo Nation ............................................ 76 

Hon. Leonard Forsman, President, Affiliated Tribes of Northwest Indians 83 

Ted Hernandez, Cultural Director, Wiyot Tribe ............................................ 86 

Hon. Herman G. Honanie, Chairman, Hopi Tribe ......................................... 76 

D. Bambi Kraus, President, NATHPO ........................................................... 80 

Hon. Brenda Meade, Chairperson, Coquille Indian Tribe ............................ 75 

Hon. Anita Mitchell, Vice Chairperson, Muckleshoot Indian Tribe ............. 79 

Hon. Thomas P. O’Rourke, Sr. Chairman, Yurok Tribe ................................ 82 

Jaqueline Pata, Executive Director, National Congress of American Indians .................................................................................................................. 84 

Hon. Virgil Siow, Governor, Pueblo of Laguna .............................................. 78 

Hon. Jeromy Sullivan, Chairman, Port Gamble S’Klallam Tribe ................ 83 

Lee Turney, President. National Indian Head Start Directors Association 81 

Scott R. Vele, Executive Director, Midwest Alliance of Sovereign Tribes ... 79 

Troy ‘‘Scott’’ Weston, President, Oglala Sioux Tribe ..................................... 88 

Molloy, John, President ATADA, prepared statement ......................................... 39 

23rd Navajo Nation Council (NNC), prepared statement .................................... 55 

Response to written questions submitted by Hon. Tom Udall to: 

Hon. Dave Flute ................................................................................................ 92 

Elizabeth A. Fowler .......................................................................................... 90 

Hon. Kurt Riley ................................................................................................ 88 

Page

IV 

Response to written questions submitted by Hon. Tom Udall to—Continued 

John Tahsuda III .............................................................................................. 93 

Society for American Archaeology (SAA), prepared statement ............................ 67 

Tompa, Peter K., Executive Director, Global Heritage Alliance, prepared 

statement .............................................................................................................. 48 

Toulou, Tracy, Director, Office of Tribal Justice, U.S. Department of Justice, 

prepared statement .............................................................................................. 46 

United South and Eastern Tribes Sovereignty Protection Fund (USET SPF), 

prepared statement .............................................................................................. 70 

Weston, Hon. Troy Scott, President, Oglala Sioux Tribe, prepared statement .. 60 

(1) 

S. 465 AND S. 1400 

WEDNESDAY, NOVEMBER 8, 2017 

U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC. 

The Committee met, pursuant to notice, at 2:53 p.m. in room 

628, Dirksen Senate Office Building, Hon. John Hoeven, 

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. JOHN HOEVEN, 

U.S. SENATOR FROM NORTH DAKOTA 

The CHAIRMAN. Good afternoon. Thanks to everyone for coming. 

I will call this hearing to order. 

Today, the Committee will examine two bills: S. 465, the Independent Outside Audit of the Indian Health Service Act of 2017 

and S. 1400, the Safeguarding Tribal Objects of Patrimony Act of 

2017. 

On February 28, 2017, Senator Rounds introduced S. 465, the 

Independent Outside Audit of the Indian Health Service Act of 

2017. Senators Lankford and McCain are co-sponsors. At this time, 

there is no House companion bill. 

The bill, S. 465, would mandate a reputable private entity to conduct an independent assessment of the health care delivery systems and financial management processes of the Indian Health 

Service within the Department of Health and Human Services. 

The assessment is intended to lead to recommendations on how 

the IHS, tribes, and other stakeholders can improve health care delivery and services provided by the IHS. 

Indian patients have suffered from inefficiency and mismanagement at various levels of the IHS for too long. The poor decisionmaking by the IHS has even led the Government Accountability 

Office to place the agency on their High Risk List. I have chaired 

two Committee hearings on these problems this year alone, and I 

intend to hold another one next spring to ensure that the IHS 

comes off the High Risk List. 

In a moment, I will turn to Senator Rounds, so he can speak 

more on his bill, S. 465. I know that Senator Rounds and his staff 

have already made improvements to this bill. I appreciate his efforts here as well as the Indian Health Service for providing technical drafting edits. I look forward to hearing from the Administration on those. 

On June 21, 2017, Senator Heinrich introduced S. 1400, the Safeguard Tribal Objects of Patrimony Act of 2017. Senators Udall, 

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Daines, Flake, McCain, Murkowski, Schatz and Tester are all original co-sponsors of the bill. Senators Lankford and Crapo were recently added. There is a House companion bill, H.R. 3211, sponsored by Representative Lujan. 

This legislation is centered on providing additional legal protection to Native American tribal artifacts and sacred objects by 

amending the Archaeological Resources Protection Act of 1979, 

ARPA; the Native American Grave Protection and Repatriation 

Act, NAGPRA; and other Federal laws which serve to protect and 

preserve Native cultural heritage. 

Among other things, S. 1400 provides increased criminal penalties for repeat traffickers of Native American human remains or 

cultural items. It bans the export of illegally obtained Native American cultural objects and sets penalties for violations of this ban. 

To incentivize repatriation, the bill allows immunity from prosecution if an individual voluntarily surrenders to the appropriate 

tribe all Native American cultural objects in possession, no later 

than two years after enactment of this bill. 

In addition, the bill would require the Government Accountability Office report on the number of Native American cultural objects illegally trafficked, and the extent to which the Department 

of Justice has prosecuted cases of trafficking. The GAO must also 

recommend actions to eliminate such trafficking and to secure the 

repatriation of Native American cultural objects. 

Lastly, the Department of the Interior is directed to convene a 

Tribal Working Group to contribute information to the GAO report 

and advise on how best to implement the GAO’s recommendations. 

Before we hear from the witnesses on this bill, I would like to 

turn to Vice Chairman Udall for any opening statement he might 

have. 

STATEMENT OF HON. TOM UDALL, 

U.S. SENATOR FROM NEW MEXICO 

Senator UDALL. Thank you so much, Chairman Hoeven. This is 

a very important legislative hearing today. I appreciate working 

with you on this. 

I am especially pleased to see S. 1400, the Safeguard Tribal Objects of Patrimony Act of 2017, known as the STOP Act, on today’s 

agenda. The STOP Act would prohibit the export of sacred Native 

American items and increase penalties for stealing and illegally 

trafficking in tribal patrimony. 

This is an important piece of legislation. S. 1400 is intended to 

provide tribes with the tools they need to prevent the export of illegally-obtained sacred objects. I recognize there are concerns, particularly those of the Antique Tribal Art Dealers Association. 

I stand ready to work with anyone who believes this bill can be 

improved to achieve its goals by providing substantive changes and 

recommendations. This hearing is an opportunity to discuss the 

legislation, to talk about its impact on tribal communities, and discuss ways we can improve on it. 

I would like to thank my colleague from New Mexico, Senator 

Heinrich for joining us today and for his strong advocacy on this 

bill. His dedication to protecting cultural patrimony, in particular 

by introducing the STOP Act, is greatly commendable. I appreciate 

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our partnership on this and many other issues affecting tribes and 

Native Americans. 

I am pleased to see that Governor Riley of Acoma Pueblo is here 

with us today. Welcome. Governor Riley is a tireless advocate for 

the people of Acoma. He knows all too well the importance of protecting Native American culture and tradition. Thank you, Governor, for taking time to travel all the way here and to share your 

peoples’ experiences. 

As Vice Chairman of this Committee, the Ranking Member on 

Interior Department Appropriations, and as a member of the New 

Mexico congressional delegation charged with representing 23 

tribes in my home State, helping fulfill the Federal trust responsibility is absolutely critical to me. 

I worked to secure more funding for tribal programs, to push for 

increased transparency and tribal consultation, and to improve 

Federal support for tribal cultural initiatives. That is why I introduced the Protect Patrimony Resolution in the last Congress and 

why I made the cultural sovereignty series of hearings a focus of 

my time as Vice Chairman. 

The first hearing in the cultural sovereignty series was an oversight hearing in Albuquerque, New Mexico where we looked at the 

issues raised by the STOP Act. Governor Riley testified at that 

hearing and helped provide us with a very good record. The second 

of the series was an oversight hearing in Santa Fe where we examined the shortcomings of the Indian Arts and Crafts Act and how 

criminals are counterfeiting authentic Indian arts and crafts at incredible rates and selling them at hugely inflated prices. 

I look forward to continuing this focus over the coming months. 

There is much work to do. I hope the STOP Act and the cultural 

sovereignty series will shed light on the extent of the problem and 

ultimately bring meaningful change. 

Turning to S. 465, after decades of underfunding and neglect, it 

is not surprising that the Indian Health Service has documented 

shortcomings. In fact, Federal oversight agencies generally fail to 

live up to their obligations to Indian Country. Tribes should not be 

subjected to this continuing breach of trust any longer. The trust 

responsibility does not end with IHS and it does not end with BIA. 

Every branch of the Federal Government must do its part, including the Congress. 

I am proud to work with Chairman Hoeven and this Congress to 

strengthen the Senate’s oversight role and look forward to continuing to do so. The Indian Affairs Committee has dedicated several hearings to address IHS, but we need to bring more Federal 

oversight agencies and experts into our conversations about IHS reform. 

The Office of Management and Budget, Centers for Medicare and 

Medicaid Services, and the Health and Human Services’ Office of 

Inspector General must answer for their role in improving accountability of IHS. 

Thank you, Mr. Chairman, for calling this hearing. I am really 

looking forward to the testimony today. 

The CHAIRMAN. Thank you, Vice Chairman Udall. 

Senator Rounds. 

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STATEMENT OF HON. MIKE ROUNDS, 

U.S. SENATOR FROM SOUTH DAKOTA 

Senator ROUNDS. Thank you, Chairman Hoeven. 

First of all, good afternoon. I want to start by thanking Chairman Hoeven, Vice Chairman Udall, and members of the Senate 

Committee on Indian Affairs for their dedicated service to the Native American communities. 

Today, I am introducing my bill, S. 465, to provide for a comprehensive assessment of the Indian Health Service. As you know, 

the IHS is the agency responsible for providing health care for 

American Indians and Alaska Natives, as required by Federal treaty agreement. 

For years, tribal members in my home State of South Dakota 

have dealt with unimaginable horrors in dealing with IHS facilities. Upon taking office in 2015, my staff and I have spent significant time trying to learn more about these problems. In our research, we found four primary areas of concern: there is no funding 

allocation strategy for the 12 IHS regions; there is no standard of 

quality measurement; there is a high turnover of staff resulting in 

low accountability among management; and there is no consultation with the tribes. 

The IHS serves approximately 2.2 million Native Americans who 

are members of 567 federally-recognized tribes. For fiscal year, 

2017, IHS was appropriated just under $5 billion in discretionary 

funding and $147 million in mandatory funding from the Special 

Diabetes Program. This does not include third party collections of 

approximately $1.1 billion. 

Despite a large user population and an annual appropriation of $5 billion, IHS does not have a funding formula. Regional allocations are not based upon the number of people who received health 

care through IHS, regional user population growth or types of services offered. 

While many believe that IHS is underfunded, from my standpoint, investing more taxpayer money into a dysfunctional system 

will only compound the problem. IHS lacks an efficient system and 

accountability. This needs to be addressed before we consider funding and then, I agree, it is time to talk about adequate and appropriate funding. 

Furthermore, there are no consistent qualitative measurements. 

The most recent qualitative measurements are from 2008, nearly 

a decade ago. It is unclear if IHS management has any sense of 

which regions are successful or failing. 

IHS divides itself into 12 service areas in the United States. IHS’ 

Great Plains area, which serves South Dakota tribal members, has 

the worst health care disparities of all IHS regions, including the 

lowest life expectancy, the highest diabetes rate, five times the U.S. 

average, the highest TB death rate; and the highest overall age-adjusted death rate. 

To give you an idea of some of the things we are seeing and hearing in our area, the Wall Street Journal reported three examples 

in June 27. ‘‘At the Indian Health Service hospital in Pine Ridge,’’ 

in South Dakota, ‘‘57-year-old man was sent home with a bronchitis diagnosis only to die five hours later of heart failure. When 

a patient at the Federal agency’s Winnebago, Nebraska facility 

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stopped breathing, nurses responded to the Code Blue, found the 

emergency supply cart was empty, and the man died. In Sisseton, 

South Dakota, a high school prom queen was coughing up blood. 

An IHS doctor gave her cough syrup and an anti-anxiety medication. Within days, she died of a blood clot in her lung.’’ 

Just this August, IHS officials announced that patients who recently received care at the Podiatry Clinic in the Winnebago IHS 

hospital may have been exposed to HIV and hepatitis. Because 

there are not standard of quality expectations or a methodology to 

measure quality, these facilities are failing very basic quality performances that our people deserve. 

In fact, the quality problems have become so pervasive that the 

Centers for Medicare and Medicaid Services’ accreditation of several IHS facilities is in jeopardy. Throughout the past year and a 

half, the Rosebud and Pine Ridge hospitals in the Great Plains Region have been operating under a systems improvement agreement 

with CMS trying to regain their accreditation status. 

Thankfully, the systems improvement agreement at Rosebud was 

completed on September 1 of this year. However, our office was 

made aware of multiple timeline extensions in Pine Ridge because 

IHS direct care facilities continue to fail CMS surveys. 

Just last Friday, the Pine Ridge IHS hospital was deemed not in 

compliance with CMS’ conditions of participation for emergency 

services. By issuing a final notification for the Pine Ridge IHS hospital, the facility is in immediate jeopardy status and the hospital’s 

provider agreement will be terminated at the end of next week. 

Termination means that IHS can no longer bill Medicare for 

services and impacts Medicaid funding as well. Further, future 

third party revenue available to IHS fund services, maintenance 

projects and other necessary costs will likely be reduced. 

Finally, there is a high turnover throughout the entire IHS organization. In fact, in the Great Plains Region, we have had five different area directors in just the last 21 months. That is an average 

tenure of roughly four months in this important management position. We have not had a full-time director since February 2015. 

Tribal members are suffering and even dying due to inadequate 

and disgraceful care. IHS will only continue to fail until we take 

a close look at the operations funding, quality of care and management at IHS. 

I believe a comprehensive assessment of IHS is necessary first, 

as a necessary first step to making calculated and systemic 

changes at IHS. S. 465 would accomplish this goal and set us on 

a path of addressing the longstanding failures of IHS. 

It would require the Inspector General of the Department of 

Health and Human Services to conduct an assessment of IHS’ 

health care delivery systems and financial management processes 

only at direct care facilities. I want to be clear. This assessment is 

not proposed for tribes with 638 agreements in place, only direct 

IHS facilities. 

Let me finish with this. The assessment I am proposing is a 

proven model of identifying potential reforms. We all remember the 

problems in 2014 with the Veterans Administration’s health care. 

To address this issue, Congress passed legislation calling for the 

6 

Secretary of the VA to conduct an overall and systematic assessment of the VA health care system. 

The integrated report was completed within the mandated time 

frame of less than a year and was officially submitted to the Secretary of the VA in September of 2015. The assessment provided 

feedback and recommended changes that could lead to improvement in health care outcomes. The same should be done for the Indian Health Service. 

Mr. Chairman and Ranking Member Udall, I thank you both for 

your time and patience with me in my message to you today. 

Thank you. 

The CHAIRMAN. Senator Heinrich. 

STATEMENT OF HON. MARTIN HEINRICH, 

U.S. SENATOR FROM NEW MEXICO 

Senator HEINRICH. Thank you, Chairman Hoeven and Vice 

Chairman Udall for holding this hearing on my legislation, the 

Safeguard Tribal Objects of Patrimony Act of 2017, the STOP Act. 

I would also like to thank the members of this Committee who are 

co-sponsors in this legislation. I believe that 8 out of the 15 members of the Committee have signed on in support. 

This bill’s strong bipartisan support gives me hope that we can 

solve this problem for tribal communities that we represent in the 

very near future. The need for this legislation is straightforward. 

We all recognize the incredible beauty of American Indian art, 

especially when you live in a State like New Mexico, you can explore and admire the remnants of ancient culture in places like 

Chaco Canyon and the Gila Cliff dwellings. You can discover both 

traditional and modern art masterpieces created by Native artists. 

We can also recognize there is a clear difference between supporting tribal artists or collecting artifacts ethically and legally as 

opposed to dealing or exporting items tribes have identified as essential and sacred pieces of their cultural heritage. This issue came 

up last year when Pueblo of Acoma Governor Kurt Riley, who is 

here today, discovered that a sacred ceremonial shield had been 

stolen and was about to be sold to the highest bidder in Paris. I 

look forward to hearing Governor Riley’s testimony today so that 

he can tell us all about the devastating impact cultural theft has 

on communities like his. 

When Governor Riley informed me about this robbery of the 

Pueblos’ cultural patrimony last year, I called on the State Department to take all possible action to halt that auction. Thankfully, intense public outcry and diplomatic pressure were enough to halt 

the illegal sale of a tribe’s cultural patrimony, but the case is still 

pending. The shield has not been returned to the Pueblo. 

In many other cases, tribes in New Mexico and across the Nation 

have been forced to effectively pay a ransom or had to stand by and 

watch the sale of priceless, religious and cultural items in international markets. Under current Federal law, it is a crime to sell 

these types of protected Native American cultural objects in the 

United States. Unfortunately, however, the penalties in the Archaeological Resources Protection Act and the Native American 

Graves Protection and Repatriation Act are not as high as other 

similar statutes like the National Stolen Property Act. 

7 

Prosecutions are too infrequent to deter criminals from smuggling and selling these objects. There is no explicit ban on exporting these items to foreign nations where they might be sold at auction, a fact cited by the French Government when they initially declined to stop the auction of the Acoma Shield. 

That is why I introduced the Safeguard Tribal Objects of Patrimony Act, the STOP Act. The STOP Act increases penalties for 

illegally trafficking in tribal cultural patrimony. It also explicitly 

prohibits exporting these objects and establishes a Federal policy 

to encourage the voluntary return of sacred objects held in private 

collections. 

While improving Federal law to create a stronger legal deterrence, if we are going to end cultural theft, we also need to change 

the hearts and minds of collectors and dealers engaged in it. I appreciate the collaboration and support we have had with New 

Mexico’s Pueblos, the Jicarilla and Mescalero Apache Nations, the 

Navajo Nation and tribes across Indian Country to craft this legislation. 

I am proud that the STOP Act has the support of the National 

Congress of American Indians, the All Indian Pueblo Council, the 

United South and Eastern Tribe Sovereignty Protection Fund, the 

Great Plains Tribal Chairmen’s Association, the Midwest Alliance 

of Sovereign Tribes, and more than 20 individual tribal Nations. 

The widespread support for the STOP Act across Indian Country 

is unfortunate evidence of how widespread theft and illegal sale of 

tribal patrimony have been. When I introduced the STOP Act earlier this year, I met with high school students from the Santa Fe 

Indian School’s Leadership Institute who had come to Capitol Hill 

to advocate for important issues in their communities. These students shared with me a position paper they had prepared on the 

importance of passing the STOP Act. They also shared personal 

stories about how important protecting cultural items is to their 

generation as they work to fulfill their sacred trust, as generations 

before them have. 

Listening to what these incredible young people had to say reinforced the urgency with which we must act to return and safeguard 

these items. We need to take all possible action to repatriate stolen, culturally-significant items to their rightful owners. 

Chairman Hoeven and Vice Chairman Udall, again, I am grateful to you both for holding this hearing. I hope you will work to 

pass the STOP Act out of this Committee and work with me to 

pass it in the full Senate as soon as possible. 

Thank you both very much. Thanks to the Committee. 

The CHAIRMAN. Thank you, Senator. 

Are there other opening statements before we proceed to our witnesses? 

[No audible response.] 

The CHAIRMAN. If not, then we have with us today: Mr. John 

Tahsuda, Principal Deputy Assistant Secretary, Indian Affairs, 

U.S. Department of the Interior; Ms. Elizabeth A. Fowler, Deputy 

Director, Management Operations, Indian Health Service, U.S. Department of Health and Human Services; the Honorable Dave 

Flute, Chairman, Sisseton Wahpeton Oyate of the Lake Traverse 

8 

Reservation, which we share in North Dakota and South Dakota; 

and the Honorable Kurt Riley, Governor, Pueblo of Acoma. 

Thanks to all of our witnesses for being here. 

Secretary Tahsuda, you may proceed. 

STATEMENT OF JOHN TAHSUDA III, PRINCIPAL DEPUTY 

ASSISTANT SECRETARY, INDIAN AFFAIRS, U.S. 

DEPARTMENT OF THE INTERIOR 

Mr. TAHSUDA. Thank you, Chairman Hoeven, Vice Chairman 

Udall and members of the Committee. My name is Jon Tahsuda. 

I am the Acting Assistant Secretary for Indian Affairs at the Department of the Interior. 

Thank you for the opportunity to provide testimony before this 

Committee on S. 1400, the Safeguarding Tribal Objects of Patrimony Act of 2017. 

The protection of tribal nations is of the utmost importance to 

the Department of the Interior. Safeguarding sacred and cultural 

patrimony is integral to that mission and vital to the livelihoods 

and culture of tribal Nations. 

While we appreciate Congress’ interest to address the repatriation of cultural heritage, as evidenced by the passage last Congress of H. Con. Res.122, the Protection of the Right of Tribes to 

stop the Export of Cultural and Traditional Patrimony Resolution, 

the Government Accountability Office is currently in the process of 

completing an important study on this matter. The study, which 

was requested by the House Judiciary Committee in 2016, includes 

an assessment of policies and practices conducted by DOI, as well 

as the Department of State and Department of Justice. 

The GAO is in the process of assessing the following questions 

which assessment will also likely be accompanied by a series of recommendations for Federal actions: One, what actions, if any, have 

Federal agencies taken to prevent the looting, theft, and trafficking 

of Native American cultural items; two, what actions, if any, have 

Federal agencies taken over the past 10 years to investigate and 

prosecute cases of looting, theft, and trafficking of Native American 

cultural items; three, what actions, if any, have Federal agencies 

and Native American tribes taken to repatriate Native American 

cultural items held in foreign collections or repositories; and four, 

what challenges, if any, are there regarding efforts to prevent and 

prosecute cases related to looting, theft, and trafficking of Native 

American cultural items and what options, if any, exist for addressing these challenges? 

The Department believes this report will be paramount in informing a broader conversation among agencies as to how best to 

address the protection and repatriation of Native American cultural items. Therefore, we believe it would be premature for the 

Department to provide a position on S. 1400, the Safeguard Tribal 

Objects of Patrimony Act of 2017, until the GAO report is released 

in full. 

Thank you for providing the Department the opportunity to testify today. I am available to answer any questions the Committee 

may have. 

[The prepared statement of Mr. Tahsuda follows:] 

9 

PREPARED STATEMENT OF JOHN TAHSUDA III, PRINCIPAL DEPUTY ASSISTANT

SECRETARY, INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

Chairman Hoeven, Vice Chairman Udall, and members of the Committee, my 

name is John Tahsuda, and I am the Acting Assistant Secretary for Indian Affairs 

at the Department of the Interior (Department). Thank you for the opportunity to 

provide testimony before this Committee on S. 1400, the Safeguard Tribal Objects 

of Patrimony Act of 2017. 

The protection of tribal nations is of the utmost importance to the Department 

of the Interior. Safeguarding sacred and cultural patrimony is integral to that mission and vital to the livelihoods and culture of tribal nations. While we appreciate 

Congress’ interest to address the repatriation of cultural heritage, as evidenced by 

the passage last Congress of H.Con.Res.122, Protection of the Right of Tribes to stop 

the Export of Cultural and Traditional (PROTECT) Patrimony Resolution, the Government Accountability Office (GAO) is currently in the process of completing an important study on this matter. The study, which was requested by the House Judiciary Committee in 2016, includes an assessment of policies and practices conducted 

on behalf of the Department, as well as the Department of State and Department 

of Justice. The GAO is in the process of assessing the following questions, which 

assessment will also likely be accompanied by a series of recommendations for federal actions: 

1. What actions, if any, have federal agencies taken to prevent the looting, theft, 

and trafficking of Native American cultural items; 

2. What actions, if any, have federal agencies taken over the past 10 years to 

investigate and prosecute cases of looting, theft, and trafficking of Native 

American cultural items; 

3. What actions, if any, have federal agencies and Native American tribes taken 

to repatriate Native American cultural items held in foreign collections or repositories; and 

4. What challenges, if any, are there regarding efforts to prevent and prosecute 

cases related to looting, theft, and trafficking of Native American cultural 

items and what options, if any, exist for addressing these challenges? 

The Department believes this report will be paramount in informing a broader 

conversation among agencies as to how best to address the protection and repatriation of Native American cultural items. Therefore, we believe it would be premature for the Department to provide a position on S. 1400, the Safeguard Tribal 

Objects of Patrimony Act of 2017, until the GAO report is released in full. 

The Department’s continuing commitment to combatting the theft, and illegal possession, sale, or transfer of tribal cultural heritage remains as strong today as it 

has ever been. The Department is also devoted to combatting the export of illicitly 

acquired cultural items and to helping tribes repatriate their cultural heritage from 

abroad. Within the Department, many offices and bureaus have responsibilities relating to this effort, including not only the Office of the Assistant Secretary for Indian Affairs, but also the Office of International Affairs, Office of the Solicitor, the 

National Native American Graves Protection and Repatriation Act (NAGPRA) Program, and the cultural resources and law enforcement staff of the land management 

agencies. 

The Department believes an essential element to combatting Native American cultural heritage theft is vigorous enforcement of laws such as NAGPRA and the Archaeological Resources Protection Act (ARPA). Currently, these laws are our best 

enforcement mechanisms to prevent theft, illegal possession, sale, transfer and export of cultural patrimony within the United States. 

Thank you for providing the Department the opportunity to provide a statement 

on S. 1400. I am available to answer any questions the Committee may have. 

The CHAIRMAN. Thank you. 

Ms. FOWLER. 

STATEMENT OF ELIZABETH A. FOWLER, DEPUTY DIRECTOR, 

MANAGEMENT OPERATIONS, INDIAN HEALTH SERVICE, U.S. 

DEPARTMENT OF HEALTH AND HUMAN SERVICES 

Ms. FOWLER. Good afternoon, Chairman Hoeven, Vice-Chairman 

Udall, and Members of the Committee. I am Elizabeth A. Fowler, 

Deputy Director for Management Operations, Indian Health ServVerDate Mar 15 2010 12:55 May 24, 2018 Jkt 030106 PO 00000 Frm 00013 Fmt 6633 Sfmt 6601 S:\DOCS\30106.TXT JACK
10 

ice. I am an enrolled member of the Comanche Tribe with 

descendancy from the Eastern Band of Cherokee Indians as well. 

I am pleased to provide testimony before the Senate Committee 

on Indian Affairs on S. 465, the Independent Outside Audit of the 

Indian Health Service Act of 2017. I would like to thank you, 

Chairman Hoeven, Vice-Chairman Udall, and members of the Committee for elevating the importance of accountability and transparency in the IHS. 

IHS is a distinct agency in the Department of Health and 

Human Services established to provide health care services to 

American Indians and Alaska Natives with the mission to raise 

their physical, mental, social and spiritual health to the highest 

level. The IHS is steadfastly committed to responsible stewardship 

of the resources entrusted to us. We are working every day to overcome the longstanding challenges that impede our efforts to meet 

our mission and provide the quality health care to American Indians and Alaska Natives they expect and deserve. 

We are proud to report to you that our concerted efforts are producing results. In the past year, IHS has established patient wait 

time standards, updated governing board bylaws, acquired a 

credentialing software system, developed a standard patient experience survey, developed a quality assurance accountability dashboard, and awarded a master contract for accreditation of all of our 

hospitals. 

Our efforts have brought positive results at the IHS Rosebud 

Hospital. As of September 1, the IHS Rosebud Hospital is no longer 

under a Systems Improvement Agreement after the Centers for 

Medicare and Medicaid Services determined it had substantially 

met all the Medicare conditions of participation. 

However, longstanding challenges remain. On November 3, the 

IHS Pine Ridge Hospital received a CMS notice of termination effective November 18, 2017 due to non-compliance with the Medicare Conditions of Participation for hospitals. 

The IHS immediately began instituting corrective actions at the 

Pine Ridge Hospital. For instance, we are enhancing staffing levels 

in the emergency department and improving emergency department operations through Federal oversight and more effective utilization of telehealth consultation. It is an Agency priority to bring 

the IHS Omaha Winnebago Hospital and the IHS Pine Ridge Hospital into full compliance with CMS standards. 

To better serve our patients, we pursue new ideas and innovative 

ways to improve how we do business in delivering quality care. 

Two innovative ways in which we are transforming the IHS is 

through implementing our Quality Framework and executing an 

IHS strategic plan. 

The agency is also focused on strengthening our operations to improve communication with stakeholders and securely and effectively managing assets and resources. We are leveraging tools from 

the private sector to improve our financial operations. For example, 

we are using a business financial planning tool to standardize and 

enhance budget planning throughout our agency. 

We are also using the data analytic software that was selected 

for our health care delivery and quality assurance efforts to also 

provide improved financial analysis and reporting. These tools will 

11 

profoundly reshape the business of IHS and allow us to better use 

our existing financial and administrative systems to support our 

mission. 

The IHS continues to strengthen our overall internal control environment. We are expanding the role of our internal audit staff 

which augments existing external audits and assessments. This allows us to proactively resolve problems as they are identified. 

Regarding financial audits, the fiscal year 2016 HHS-wide CFO 

audit resulted in a clean opinion for the financial statements that 

cover the Indian Health Service. The fiscal year 2017 audit is nearing completion. In addition, the IHS complies with standard Federal budget execution and budgetary resource reporting requirements, including publicly available quarterly reports. 

With regard to the bill S. 465, IHS is prepared to provide the 

Committee technical assistance on the legislation. 

Thank you for your commitment to improving quality, safety and 

access to health care for American Indians and Alaska Natives. 

I would be happy to answer any questions you may have. 

[The prepared statement of Ms. Fowler follows:] 

PREPARED STATEMENT OF ELIZABETH A. FOWLER, DEPUTY DIRECTOR, MANAGEMENT

OPERATIONS, INDIAN HEALTH SERVICE, U.S. DEPARTMENT OF HEALTH AND HUMAN

SERVICES

Chairman and Members of the Committee: 

Good afternoon, Chairman Hoeven, Vice-Chairman Udall, and Members of the 

Committee. I am Elizabeth A. Fowler, Deputy Director for Management Operations, 

Indian Health Service (IHS). I am an enrolled member of the Comanche Tribe with 

descendancy from the Eastern Band of Cherokee Indians. I am pleased to provide 

testimony before the Senate Committee on Indian Affairs on S. 465, the Independent Outside Audit of the Indian Health Service Act of 2017. I would like to 

thank you, Chairman Hoeven, Vice-Chairman Udall, and Members of the Committee for elevating the importance of accountability and transparency in the IHS. 

IHS is a distinct agency in the Department of Health and Human Services (HHS), 

established to carry out the responsibilities, authorities, and functions of the United 

States to provide health care services to American Indians and Alaska Natives. It 

is the only HHS agency whose primary function is direct delivery of health care. 

The mission of IHS, in partnership with American Indian and Alaska Native people, 

is to raise the physical, mental, social, and spiritual health of American Indians and 

Alaska Natives to the highest level. The IHS system consists of 12 Area offices, 

which oversee 170 Service Units that provide care at the local level. Health services 

are provided through facilities managed by the IHS, by Tribes and tribal organizations under authorities of the Indian Self-Determination and Education Assistance 

Act (ISDEAA), and through contracts and grants awarded to urban Indian organizations authorized by the Indian Health Care Improvement Act. 

The IHS is steadfastly committed to responsible stewardship of the resources entrusted to us. We are working every day to overcome the longstanding systemic 

challenges that impede our efforts to meet our mission and provide the quality 

health care to American Indians and Alaska Natives that they expect. We are proud 

to report to you that our concerted efforts are producing results. On August 25, the 

official Patient Wait Times policy setting the IHS wait times standards for outpatient primary care visits in direct care IHS facilities was signed by the IHS Acting Director. In less than a year, we updated Governing Board Bylaws, acquired a 

credentialing software system, developed a standard patient experience of care survey, developed a quality assurance accountability dashboard, and awarded a master 

contract for accreditation of all of our hospitals. In the Great Plains Area, our efforts 

have brought positive results at the IHS Rosebud Hospital. As of September 1, the 

IHS Rosebud Hospital is no longer under a Systems Improvement Agreement after 

the Centers for Medicare & Medicaid Services (CMS) determined it had substantially met all the Medicare Conditions of Participation. 

While we are making progress in the Great Plains, longstanding challenges remain. On November 3, the IHS Pine Ridge Hospital received a CMS notice of intent 

to terminate its provider agreement effective November 18, 2017 due to non-compliVerDate Mar 15 2010 12:55 May 24, 2018 Jkt 030106 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 S:\DOCS\30106.TXT JACK
12 

ance with the Medicare Conditions of Participation for hospitals. The IHS immediately began instituting corrective actions at the Pine Ridge Hospital. For instance, 

we are enhancing staffing levels in the emergency department; deploying U.S. Public Health Service officers to reduce staff turnover; and continuing to improve emergency department operations through federal oversight and more effective utilization of telehealth consultation. These actions are in addition to the significant steps 

we have taken in the last year at the Pine Ridge Hospital. It remains an Agency 

priority to bring the IHS Omaha Winnebago Hospital and the IHS Pine Ridge Hospital into full compliance with CMS standards. We are improving agency oversight 

of quality care at all levels of the IHS. 

To better serve American Indians and Alaska Natives, we proactively pursue new 

ideas and innovative ways to improve how we do business in delivering quality care 

and accounting for the transparent administration of federal resources. Two innovative ways in which we are transforming the IHS is through implementing our Quality Framework and executing an IHS strategic plan. These tools will guide the development, implementation and sustainability of quality-focused, high-reliability 

programs at all of our hospitals and clinics. Core elements of the Framework focus 

on strengthening our organizational capacity, and improving transparency and communication to IHS stakeholders. The IHS strategic plan is currently being developed, with consultation and conferral from Tribes and urban Indian organizations. 

The strategic plan will sustain and build on the achievements of the Quality Framework and institute objectives such as providing comprehensive, culturally acceptable 

health services, promoting a quality performing organization through innovation of 

the Indian health system, and strengthening IHS program management and operations that securely and effectively manage assets and resources. 

Efficient, Effective, and Transparent Stewardship 

As responsible stewards of the resources entrusted to us, one of our most important duties is to practice fiscal responsibility and transparency. The Agency is focused on strengthening our program management and operations in order to improve communication with IHS stakeholders and securely and effectively manage 

assets and resources. We have taken solid steps to ensure that our stewardship is 

efficient, effective, and transparent within the IHS and with our external stakeholders as well. 

To help us reach our objectives, we are leveraging a widely used private sector 

tool to standardize and enhance budget planning throughout our agency. We are 

also in the process of using data analytics software to provide improved transparency of our financial information. This is software we purchased for use in health 

care delivery and quality assurance, and is now being effectively used for additional 

purposes to improve our communications with IHS stakeholders and management 

of our resources. 

One application of the data analytics software being used for financial purposes 

is a dashboard for our third party collections, which is nearing deployment. While 

the agency has been able to provide summary or detailed reports for specific pieces 

of our collections data, we lacked the ability to rapidly review and report our data 

in a more efficient and automated manner. This new application enables us to review data from Fiscal Year (FY) 2010 forward, by location, insurance type, and 

month, for example, and easily do comparisons. We are also using the data analytics 

software to develop a standard financial report to enhance the transparency and 

communication of our financial data with tribal partners. This report can be run by 

Area Offices and Service Units to combine data on our funding allocations, actual 

spending, and collections. These tools will profoundly reshape the business of IHS 

and allow us to better utilize our existing financial and administrative systems to 

support our mission. 

To better serve our stakeholders, the IHS continues to search for new ways to 

strengthen our overall internal control environment. The IHS is actively inspecting 

its system and programs to resolve any shortfalls that exist. Our Chief Financial 

Officer (CFO) will be expanding the role of internal audit staff within our enterprise 

risk management program. This includes augmenting existing annual audits and assessments performed by contracted external professionals so that we can target and 

examine key financial and administrative programs and address the areas of greatest risk. This audit program enables us to conduct our own reviews, complementing 

the important work of our Departmental Inspector General and the Government Accountability Office, and allows us to proactively resolve problems as they are identified. 

As the IHS continues to expand our internal audit capabilities, this will also complement the current routine and statutorily required external audits and financial 

reporting. For example, IHS just participated in the annual CFO Audit Act audit 

13 

of our financial statement, conducted by a nationally-known independent firm contracted by HHS. While we do not yet have the results for FY 2017, the audit opinion 

for FY 2016 was unqualified for the entire Department, meaning financial records 

and statements were fairly and appropriately presented, and in accordance with 

Generally Accepted Accounting Principles. In addition, the IHS complies with the 

Office of Management and Budget Circular A–11 which includes standard federal 

budget execution and budgetary resource reporting requirements, including quarterly reports that are publicly available. IHS meets the standards applicable to federal financial reporting as we continue our efforts to be more transparent and improve our utilization of financial information. 

Another aspect of the IHS stewardship of resources is the Purchased and Referred 

Care (PRC) program. Improving the data reporting and measurement system is essential to assuring that PRC programs are efficient. IHS modified the data system 

that tracks PRC referrals and emergency self-referrals and expects to begin baseline 

reporting for calendar year (CY) 2017, which will be available in CY 2018. 

The IHS offers the following comments on the draft amendment in the nature of 

a substitute to S. 465. The substitute to S. 465 provides authority for a comprehensive assessment of the IHS health care delivery systems and financial management 

process by the HHS Inspector General or a private entity. IHS is prepared to provide the Committee technical assistance on the legislation. 

If the HHS Inspector General does not conduct the assessment, the legislation requires the Secretary to enter into contracts with one or more private entities to conduct the assessment no later than 180 days after the date of enactment. We are reviewing possible acquisition strategies that would allow us to obtain a qualified, 

quality provider expeditiously but would prefer that the deadline be expressed as 

a goal to ensure the process results in the identification and selection of the best 

provider, including adequate time to consider Indian Economic Enterprises as required under the Buy Indian Act. 

If a contract is entered into by the Secretary with a private entity, the magnitude 

and detail of the assessments proposed by the bill may require significant financial 

resources. If the Secretary directs IHS to fund the cost of the contract with the independent entity, it is important to note that IHS’s existing budget could not support 

a project of this scale without affecting direct health services. With approximately 

60 percent of the budget administered by Tribes and tribal organizations through 

ISDEAA agreements, there would be very little flexibility for reprogramming remaining resources to accomplish the proposed assessment. 

Finally, S. 465 would require that the Secretary of HHS immediately submit the 

proposed assessment to several Congressional Committees and Members, then publish the report in the Federal Register and on a public HHS website. Requiring concurrent reporting and near-immediate publication of such a broad assessment may 

raise constitutional concerns about executive branch supervision and executive 

privilege. We recommend giving the Secretary a chance to review the report before 

it is submitted to Congress and made public. 

Thank you for your commitment to improving quality, safety, and access to health 

care for American Indians and Alaska Natives. I will be happy to answer any questions the Committee may have. 

The CHAIRMAN. Chairman Flute. 

STATEMENT OF HON. DAVE FLUTE, CHAIRMAN, SISSETON 

WAHPETON OYATE OF THE LAKE TRAVERSE RESERVATION 

Mr. FLUTE. Chairman Hoeven, Vice Chairman Udall and members of the Committee, it is good to see you again since the couple 

of weeks ago I think I was here. 

For the record, my name is Dave Flute, Chairman of the Sisseton 

Wahpeton Sioux Tribe. I am pleased to testify in support of S. 465, 

the Independent Outside Audit of the Indian Health Service Act of 

2017. I appreciate the opportunity to be able to provide some oral 

testimony here today. 

First of all, we want to thank Senator Rounds for his leadership 

and being a champion for us in the Great Plains Region, for not 

just listening to us, but hearing us and, more importantly, for the 

Senator and for all of you great Committee members here taking 

14 

action. We appreciate that. You are not just listening and hearing 

us but you are taking action. We appreciate that because action is 

needed. 

We support this bill. I am the Chairman of the Sisseton 

Wahpeton Sioux Tribe, Chairman of the United Tribes of North 

Dakota, and a member of the Great Plains Tribal Chairmen’s Association. We do have a letter and resolution from the Great Plains 

Tribal Chairmen’s Association that fully supports Senator Rounds’ 

efforts with S. 465. 

We know that health care is a treaty right. That treaty right was 

established for the cessation of lands of that we ceded for American 

immigrants over 150 years ago. We are coming up on the sesquicentennial of the Ft. Laramie treaty. My tribe just celebrated the 

sesquicentennial of our treaty. We know that is a treaty right. 

The Great Plains Tribal Chairmen’s Association and Great Plains 

Tribal Chairmen Health Board strongly feel that the Indian Health 

Service is failing us. They are failing to meet that treaty obligation. 

We are not getting the quality service we need. We are not getting 

the transparency that we are asking for. We are not getting the financial accountability. 

I do want to echo and reiterate Senator Rounds’ comments that 

we appreciate the recognition of those treaty obligations by our congressional leadership to those treaty tribes in the Great Plains Region. Transparency is important for us. When the Great Plains 

Tribal Chairmen’s Health Board, the Great Plains Tribal Chairmen’s Health Association and the Chairmen’s Association requests 

information, it would be beneficial to both the treaty tribes and the 

Indian Health Service if the Indian Health Service would provide 

us that information without questioning us as to why we need that 

information or that it is or is not going to help us in trying to find 

the solutions so that we can help our congressional leaders fix this 

problem. 

We see in S. 465 that this will be a good first step forward to 

try to figure out what the problems are and why there is a high 

turnover rate. The Sisseton Wahpeton Sioux Tribe has not had a 

permanent CEO at our local service unit for quite some time, two 

or three years now. The Aberdeen area has not seen a permanent 

area director there for the Indian Health Service for a long, long 

time. 

The lack of consistency rolls downhill. The lack of consistency at 

the regional level also contributes to the lack of consistency at the 

local level. That even goes further to the service we are not getting. 

Mr. Chairman, if I could quickly give an example of this. We 

have tribal members with heart conditions, with diabetes conditions, and different types of health conditions. They go to the Indian Health Service and see a doctor. In three months, they see a 

different doctor who gives them a different medication. 

Our tribal members are being tossed here and there with different types of medications and different types of diagnoses. We 

have issues there where, as Senator Rounds said, we are talking 

about peoples’ lives and health care. 

In my tribe, that young girl was given cough syrup when she was 

coughing up blood. It makes the hair on the back of my neck stand 

up. I apologize for being very passionate on this issue but there is 

15 

a very big problem in the Great Plains Region. We need to get it 

fixed. We support the Senator. 

We have doctor positions that need to be filled at the local service level. IHS comes in and takes our monies, hospital and clinic 

monies. Those might not be tribal monies, but they are obligated 

to the tribes, H&C monies. For the Sisseton unit, $2.2 million was 

taken. From the Cheyenne River Sioux Tribe, $4 million was taken 

with no consultation whatsoever, no communication. 

Because our tribal members who have worked in the health profession for a long, long time, they are restricted to not saying anything to their tribal leadership. I am not going to mention any 

names but we have good tribal members working in our local service units telling the tribal leaders, we think H&C monies are going 

to be taken. 

I called Admiral Buchanan and asked, are you taking our H&C 

monies? He would not say anything. He would not say yes or no. 

That lack of transparency is damaging the relationships that we 

need to build with the Indian Health Service so we can fix the 

problems of health care for Indian Country. 

When we do not get the data we ask for, we have to make our 

observations on the data that we do collect that is being given to 

us by our research. When IHS is not giving us that data, our observations are they are using this money to channel into other areas. 

As the Senator said, without having a budget formula, without 

having a plan, they are bandaiding this and taking money from our 

service units. 

We have people with meth addiction, depression, and opioid use 

who are requesting mental health services and they are being 

turned away. We have $2.2 million you are going to funnel from 

other service units when you could have used that money. IHS 

could have used that money and sat with the tribe and looked at 

our tribe’s needs. 

They need mental health counseling, they need to expand their 

service room so they can counsel these people. It is hurting us. 

Meth is hurting us. It is taking dollars away from people who need 

prosthetics for diabetes. I could go on and on and on with real life 

examples, Senator. 

I appreciate it. I apologize for the passion I have with the Indian 

Health Service. It is a treaty obligation. We fully support our South 

Dakota Senator, as we do the Senate Committee on Indian Affairs. 

I want to thank you for your time. I will answer any questions 

you have. 

Thank you. 

[The prepared statement of Mr. Flute follows:] 

PREPARED STATEMENT OF HON. DAVE FLUTE, CHAIRMAN, SISSETON WAHPETON

OYATE OF THE LAKE TRAVERSE RESERVATION

I. Introduction 

Good Afternoon, Mr. Chairman, Mr. Vice Chairman, Senator Heitkamp and Members of the Committee, and Honored Guests. My name is David Flute, and I am the 

Chairman of the Sisseton-Wahpeton Oyate. I am pleased to testify in support of S. 

465, Independent Outside Assessment of the Indian Health Service. Thank you for 

the opportunity to testify today. 

As Native Americans, it is important for us to have respect for our Native Nations, treaty rights, and Indian lands because our right to self-governance and selfVerDate Mar 15 2010 12:55 May 24, 2018 Jkt 030106 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 S:\DOCS\30106.TXT JACK
16 

1 Under the Allotment Policy, significant tribal lands were sold as surplus lands against our 

wishes, but under the modern Indian Self-Determination Policy, Congress affirmed our efforts 

to recover those portion of our homelands, and treats our recovered Indian trust lands as ‘‘onreservation’’ acquisitions within the original boundaries of the Lake Traverse Reservation. Public Law 93–491 (1974). 

determination on our Reservations is the essence of Freedom and Liberty for us. Indian Health Care is an important treaty right, and we gave up millions of acres of 

land to non-Indian immigrants in return for our permanent homeland. Indian 

health care is intended to make our homelands, livable homes, but the Indian 

Health Service (IHS) has not lived up to its mandate. IHS Administration is failing 

the Sisseton Wahpeton Sioux Tribe and the Great Plains Region, so we need 

Congress’s help to turn the IHS around and provide good, reliable health care for 

our Native people. The introduction and passage of S. 465 is an important step towards that goal. 

Senator Rounds is providing important leadership on the Indian Health Service 

for Native Americans in the Senate, as he did as Governor of the State of South 

Dakota to make the government accountable to the people. We thank him and the 

Committee for all of your hard work. 

We also support the passage of S. 1400, the Safeguard Tribal Objects of Patrimony Act to protect our Tribal Cultural Items from wrongful transfer and sale. 

II. Background: The Sisseton-Wahpeton Sioux Tribe 

The Sisseton-Wahpeton Oyate (meaning Sisseton-Wahpeton Dakota Nation and 

we have been known historically as the Sisseton-Wahpeton Sioux Tribe) original 

homelands were in Minnesota, North and South Dakota. The Sisseton-Wahpeton 

Sioux Tribe is signatory to the 1851 Treaty with the Sisseton-Wahpeton Bands of 

Dakota Sioux (Traverse des Sioux) and the 1867 Lake Traverse Treaty, which set 

aside the Lake Traverse Reservation as our ‘‘permanent home’’— 

Beginning at the head of Lake Travers[e], and thence along the treaty-line of 

the treaty of 1851 to Kampeska Lake; thence in a direct line to Reipan or the 

northeast point of the Coteau des Prairie[s], and thence passing north of Skunk 

Lake, on the most direct line to the foot of Lake Traverse, and thence along the 

treaty-line of 1851 to the place of beginning. 

The Lake Traverse Reservation is located in the Northeastern part of South Dakota and a small portion of southeastern corner of North Dakota. The reservation 

boundaries extend across seven counties, two in North Dakota and five in South Dakota. 1

Our 1867 Treaty continues our ‘‘friendly relations with the Government and people of the United States.’’ Our Treaty also recognizes our people’s right to self-government and to adopt ‘‘laws for the security of life and property,’’ to promote the 

‘‘advancement of civilization’’ and promote ‘‘prosperity’’ among our people. 

Today, we have a total of 14,000 tribal members located throughout the United 

States and others serving overseas in the Armed Forces. Among the SissetonWahpeton Sioux Tribe, we have maintain our treaty alliance with the United States, 

and we are rightfully proud of our volunteer service to the United States through 

the military. We are proud of our service to the United States through the military. 

Woodrow Wilson Keeble, one of our most respected tribal members, served in World 

War II and in Korea and was posthumously awarded the Congressional Medal of 

Honor by President George W. Bush. 

III. IHS Realities, Medical and Administrative Issues 

The Indian Health Care administered by the IHS is rationed medical care for 

American Indians. Although Indian health care is based upon treaty obligations, 

American Indians have poor health and suffer premature death when compared 

with the general public. Our American Indian life expectancy that is 4.2 years less 

than Americans overall. 

Our people die at higher rates than other Americans from alcoholism (552 percent 

higher), diabetes (182 percent higher), unintentional injuries (138 percent higher), 

homicide (83 percent higher), and suicide (74 percent higher). American Indians suffer from higher mortality from cervical cancer (1.2 times higher); respiratory disease 

(1.4 times higher); and maternal deaths (1.4 times higher). Our health care disparities in the Great Plains are greater than these national disparities. 

Indian Nations Need Equity In Per Patient Health Care Funding: Per patient annual health care spending: Medicare $12,042. National health care spending is 

$7,713. Veterans Affairs $6,980. Bureau of Prisons $5,010. IHS spends only $2,849 

17 

per patient. The National Tribal Budget Workgroup estimates full funding for IHS 

would cost $30.8 Billion compared to the actual $4.8 Billion FY 2016 IHS Budget. 

Real Life Situation at Sisseton Wahpeton: Without equity in per patient funding, Indian Health Service patients will present for urgent care at the CDP 

[Coteau des Prairies] emergency room. The IHS does not pay for urgent care 

in an ER. They only pay for the Priority I emergencies. This results in bills 

going unpaid and turned over to collection agencies. It is difficult for lay people 

to determine how urgent or emergent their situation is. Maybe their child could 

wait for IHS to be open, but how can the average person know? 

Indian Nations Need Telemedicine. Telemedicine requires technological investment. In the long run, telemedicine will provide greater access to proper medical 

care at reduced cost. Legislative support including authorization for appropriations, 

pilot projects, and dedicated funding will speed implementation. As a model for successful use of telemedicine being used today, health care providers in non-native 

rural hospital emergency rooms throughout eastern South Dakota, use eER, 

ePharmacy and elCU technology in Critical Access Hospitals throughout the state 

to extend Hospital emergency, pharmacy and internal medicine services to rural, 

geographically isolated communities. 

Indian Nations Need Competitive Pay for Physicians and PAs. IHS must increase 

pay for its Physicians and increase overall efforts to recruit and retain physicians. 

Congress should also remember that our Physician Assistants (PA) also need increased competitive pay. PAs have been recognized by Congress and the President 

as crucial to improving U.S. health care. Congress has recognized our PAs as one 

of three healthcare professions in primary care. For all medical professionals, Physicians, Physician Assistants and Nurse Practitioners, as well as Registered Nurses, 

scholarships and loan forgiveness should be increased to improve recruitment of 

these medical professionals to the IHS. 

Our Sisseton Wahpeton Tribal Government staff provided the following statement 

to give you specific examples of problems with access to Physicians and Physicians 

assistants. 

Real Life Situation at Sisseton Wahpeton: One of the biggest issues with our 

health care is the fragmentation of services between IHS (which provides primary medical, dental, mental health, optometry, and physical therapy), Coteau 

des Prairies Health Care System (private facility in Sisseton that has an emergency department, OB delivery unit, and home health care services), Tribal 

Health Programs, and tertiary care facilities (where patients are typically sent 

for surgery and specialty care services). The IHS employs the Improving Patient 

Care model, which empanels patients to provider teams. However, the majority 

of the provider positions are vacant and filled with temporary staff (temporary 

doctors, physician assistants, and nurse practitioners who are contracted for 

short periods of time). As a result, there is also lack of continuity in care for 

our patients. People often do not know who their provider is. And the providers 

are not there for them when they are really sick. When they are really sick they 

present at the emergency room, and many who have an alternate resource, such 

as Medicaid or Medicare, stay with the provider at the private facility that is 

there for them in an emergency and who is familiar with their condition. IHS 

is sort of the ‘‘fair weather’’ friend type of provider to patients and often not 

substantively there for them when the going is tough. 

Keep Our IHS Facilities Open. HHS must direct CMS and IHS to coordinate on 

IHS and tribal hospital, emergency room, and clinic staffing to ensure proper certification of our Indian country health care facilities. CMS and IHS should collaborate 

to provide technical assistance, emergency funding and temporary staffing when 

necessary to keep facilities open as long term operational plans are developed and 

implemented. Accordingly, S. 465 should include a study of CMS closures of IHS facility and a plan for CMS to assist IHS facilities to stay open with CMS training, 

technical assistance, and temporary staffing. 

IHS Purchased/Referred Care—A Top Priority. The IHS is organized to provide 

only basic emergency and clinical care at tribal hospitals and clinics. In regard to 

Purchased/Referred Care (PRC), the IHS explains: 

Because IHS programs are not fully funded, the PRC program must rely on specific regulations relating to eligibility, notification, residency, and a medical priority rating system. The IHS is designated as the payor of last resort meaning 

that all other available alternate resources including IHS facilities must first 

be used before payment is expected. These mechanisms enhance the IHS to 

stretch the limited PRC dollars and designed to extend services to more IndiVerDate Mar 15 2010 12:55 May 24, 2018 Jkt 030106 PO 00000 Frm 00021 Fmt 6633 Sfmt 6621 S:\DOCS\30106.TXT JACK
18 

ans. This renders the PRC program to authorize care at restricted levels and 

results in a rationed health care system. . . . 

In short, IHS Purchased/Referred Care is limited and unless a patient will lose 

life or limb, services are denied. We need more funding for access to specialized 

care-especially high demand services such as respiratory care and psychiatric care. 

IHS medical denials are resulting in unwarranted deaths, disease and injury and 

ruining our people financially. 

Medicare-Like Rates. Medicare-Like Rates must be applied to all outpatient care 

and referrals. S. 465 should be amended to study a requirement that medical providers to accept Medicare-Like Rates from the IHS and tribal governments. 

Maximize Third-Party Revenue. The IHS must be able to bill third-party insurance when patients have coverage, and Congress should enact legislation to enhance 

the IHS billing system to make sure that Third-Party Insurers do not evade responsibility. Then our Third Party Revenue must stay at home to reimburse and enhance the facility that generated the funds through patient services. This is an extremely important aspect of the S. 465 study. 

Cut HHS/IHS Bureaucracy. Central Office and Regional Office staff should be cut 

back with resources reallocated to Indian country. PHS Commission Corps medical 

providers should be sent to the field to practice medicine in Indian country. 

IV. S. 465, Independent Outside Assessment of the Indian Health Service 

S. 465, the Independent Outside Assessment of the Indian Health Service should 

be enacted into law. It is essential for Health Care funding to be effectively and efficiently used to provide patient care, promote health and positive community health 

outcomes to raise the standard of wellness and the life expectance of Native Americans. S. 465 seeks to take those initial steps towards efficiency, efficacy, accountability, and transparency. 

Cooperation and Coordination with GAO. The Government Accountability Office 

(GAO) is an independent, nonpartisan agency that works for Congress. GAO’s Mission is to support Congress and ‘‘help improve the performance and ensure the accountability of the federal government for the benefit of the American people’’ by 

providing ‘‘information that is objective, fact-based, nonpartisan, non-ideological, 

fair, and balanced.’’ Under S. 465, HHS Office of Inspector General should conduct 

its review in cooperation and coordination with GAO. Hence, Section 2(b)(1) should 

start with the phrase, ‘‘In cooperation and coordination with the GAO,’’ before ‘‘The 

Inspector General.’’ 

Consultation and Coordination with Indian Tribal Governments. In carrying out 

its responsibilities under this statute, HHS OIG and GAO should be directed to consult and coordinate with Indian nations and tribes in accordance with the principles 

of Executive Order 13175, concerning the formulation of the study, findings of the 

draft report, and the submission to Congress. HHS and GAO are familiar with the 

Executive Order and have policies to ensure compliance with its requirements. 

Contracting with State and Local Health Care Institutions. The Snyder Act provides authority for the IHS to contract with State and local institutions for supplementary provision of governmental services to Indian country. The IHS explains: 

Snyder Act authorized funds ‘‘for the relief of distress and conservation of 

health. . . [and] for the employment of. . . physicians. . . for Indian tribes 

throughout the United States.’’ (1921). Transfer Act placed Indian health programs in the PHS. (1955) 

The appropriation to IHS by Congress to provide medical services and health 

care programs are made available through the Snyder Act of 1921. . . . 

The term Purchased/Referred Care (PRC) originated under BIA when medical 

health care services were contracted out to health care providers. In 1955 the 

Transfer Act moved health care from BIA to the Department of Health Education & Welfare and established the IHS. 

The PRC funds are used to supplement and complement other health care resources available to eligible Indian people. The funds is used in situations 

where: (1) no IHS direct care facility exists, (2) the direct care element is incapable of providing required emergency and/or specialty care, (3) the direct 

care element has an overflow of medical care workload, and (4) supplementation 

of alternate resources (i.e., Medicare, private insurance) is required to provide 

comprehensive care to eligible Indian people. 

S. 465’s study should include the possibility for development of better IHS strategies for partnering with local health facilities, rather than simply paying third party 

billing. 

19 

Recommendations from Tribal Staff on Relations with Local Third Party Health 

Care Providers: The intent when we were planning for the Sisseton Wahpeton 

Health Center was for the IHS medical providers to get South Dakota licensed 

and credentialed and privileged at Coteau des Prairies Hospital. Sisseton IHS 

and Coteau des Prairies Hospital could have (and still could or should) enter 

into a partnership whereby the providers are cross-privileged and SIHS could 

use the resources appropriated by Congress for OUR PEOPLE to provide 24/ 

7 urgent care services at that facility. However, there has been no initiative (as 

in motivation or effort) for the SWIHS to pursue a partnership, which would 

put IHS in the driver’s seat as the true primary care coordinators for patients 

that are em paneled to the various provider teams. The benefit of a partnership 

would be: (1) continuity of care for our patients; (2) Tribal members would not 

be stuck with bills for non-emergencies; (3) IHS could cover expenses from other 

accounts, such as third party, instead of PRC (which are very precious); (4) CDP 

would not be caught with the big accounts receivable that (we understand) they 

have been complaining about; and (4) our patients wouldn’t need to be made 

to feel like second-class patients (uninsured) when the reality is that health 

care is a Federal treaty and trust responsibility. The Sisseton IHS is probably 

the biggest payor and source of revenue for the Coteau des Prairies Hospital. 

IHS should leverage that buying power through partnership contracts so that 

the Indian patients are treated like other health care customers when they go 

to CDP and they are provided quality care, instead of sometimes being shuffled 

back to IHS or made to feel they are being ‘‘turned away.’’ 

How Dual Patients Are Handled. The IHS explains that: ‘‘It is the policy of the 

Indian Health Service to charge Medicare and Medicaid for services provided to 

beneficiaries of the IHS program who are enrolled in Medicare and Medicaid. See 

Social Security Act Section 1911 [42 USC 1396j], Section 1880 [42 USC 1395qq].’’ 

For IHS patients, who have private insurance or are eligible for Medicaid reimbursement, the IHS should be engaged in third party billing, and the receipts from 

third party billing inure to the benefit of the IHS facility, which generates the billed 

services. By statute, the IHS must keep the proceeds of the third party billing at 

the IHS or tribal facility that generates the revenue, but in the Great Plains, our 

Tribes have experienced problems with IHS seeking to use Hospital & Clinics funding to cover special projects in other elsewhere, to cover budget shortfalls in other 

areas, and even to settle labor disputes! As a result, Sisseton Wahpeton Third Party 

collections were expended to replace regular IHS operating funding when the revenue should have been available for Sisseton Wahpeton facility improvement. 

Whenever funds are available from Sisseton-Wahpeton IHS Third Party Collections, these revenues should be remitted to the Tribe or its facility in accordance 

with the Indian Health Care Improvement Act, which directs that the Secretary of 

HHS is acting as an agent for the Tribal Government when collecting Medicare and 

Medicaid fees from covered patients. We are entitled to ‘‘100 percent pass through 

of payments’’ due to our facilities to be used for health care facilities and service 

improvement. 25 U.S.C. sec. 641(c)(1)(A). Our IHS Region was wrongly going to divert our Medicare and Medicaid collections away from our Service Unit. IHS must 

follow the law by making our Medicare and Medicaid fees available for services, 

equipment and improvements at our Service Unit. This Third Party Billing Issue 

was a concern for the entire Great Plains Region. The Act’s provisions should include a reference to this law and a study of IHS compliance with existing law. 

V. Conclusion 

The Sisseton Wahpeton Sioux Tribe maintains our alliance with the United States 

as a friend and ally of our Indian nation. We ask you to work with us to promote 

Indian SelfDetermination and effective Federal and tribal government. The Indian 

Health Service has much to answer for because its bureaucracy has kept the doors 

closed on their operations. Our Native people need good, reliable health care, and 

the delivery of such health care requires funding, foresight, planning, and the recruitment and retention of solid personnel—the Physicians, PAs, and Nurses— 

equipment, and facilities. Working together, Congress and our Indian nations can 

improve the Indian Health Service and Indian health care. Let’s build a partnership 

based upon objective facts and good, reliable, professional medical service through 

the enactment of S. 465. 

Finally, I would like to express Sisseton Wahpeton Sioux Tribe’s support for S. 

1400, the Safeguard Tribal Objects of Patrimony Act. Traditionally, our Native people were spiritual people, who integrated our reverence for the Creator into our everyday lives. The United States, from the 1880s through 1978, enacted laws and 

regulations and kept them on the books to outlaw Native American religion and cultural observances. My father, together with many of our tribal leaders nationwide, 

20 

worked with Congress to secure enactment of the American Indian Religious Freedom Act of 1978, 42 U.S.C. § 1996, to secure the Freedom of Religion to Native 

Americans. S. 1400, which protects our Tribal Cultural Items from wrongful transfer outside the Native American community is a further step towards full Religious 

Freedom for Native Americans. 

The CHAIRMAN. Thank you, Chairman Flute. 

Governor RILEY. 

STATEMENT OF HON. KURT RILEY, GOVERNOR, PUEBLO OF 

ACOMA 

Mr. RILEY. [Greeting in native tongue.] 

Chairman Hoeven, Vice Chairman Udall and members of the 

Committee, tribal leaders and guests, my name is Kurt Riley, I am 

the Governor for the Pueblo of Acoma. The Pueblo of Acoma greatly 

appreciates this opportunity to present on S. 1400, the STOP Act. 

During my time as Governor, the Pueblo has fought to recover 

many sensitive cultural items that illegally left our lands. Under 

traditional Acoma law, no one person may own these items whether they belong to the community as a whole and are looked after 

by their caretakers who cannot sell them or remove them from the 

Pueblo. 

These items play significant roles within our culture, our traditional calendar, our societies, our families and our way of life. Most 

importantly, they are critical to how we pass our identity down to 

our children. Their loss threatens our cultural survival. 

The best known of our fight in this effort is to regain the Acoma 

Shield which was set to be auctioned in Paris in 2016. The Shield 

was stolen some years ago but current members of the Pueblo still 

remember its use in our societies. It is not by chance that the 

Shield was shipped from the southwest to Paris for sale. It could 

have been publicly offered for sale in the southwest where Federal 

domestic laws would have supported our claim. 

With the help of our congressional delegation, Federal agency officials, Indian Country and the general public, the Paris sale was 

blocked. This was a rare success. Ironically, however, we still do 

not have the Shield. 

A big part of the problem is that the United States does not have 

an explicit ban on the export of these items. Foreign governments, 

including France, have consistently told the Pueblo and Federal officials they will not facilitate return of our cultural heritage because the United States’ laws do not explicitly prohibit their exportation. 

The STOP Act contains an explicit ban. It should be emphasized 

that this ban is narrowly drawn. The STOP Act only applies to 

items obtained in violation of NAGPRA, the Archaeological Resources Protection Act or the Antiquities Act. So far, the ban to 

apply a violation of one of these laws has yet to have already occurred. 

Despite its narrow scope, the STOP Act will send a clear message 

about American values and will provide an essential tool for securing the cooperation of foreign countries when sensitive cultural 

property appears in auction houses and elsewhere overseas. In addition to a ban, the STOP Act increases the penalty for violation 

of NAGPRA and encourages a system of voluntary return. We are 

21 

hopeful about voluntary return. Our experience is that when dealers and collectors get to know us and we get to know them, many 

issues of concern are resolved and sensitive items do come home. 

Still, there are always those who just do not care. Lastly, the STOP 

Act creates a tribal working group to advise the Federal Government. This group is needed to maintain the Federal Government’s 

focus on this issue and to provide professional expertise as matters 

of identification and such arise. 

I am happy that Assistant Secretary Tahsuda is testifying today. 

The Department of the Interior has been a great ally in these efforts. Notably, Secretary Zinke was one of the co-sponsors of the 

Protect Patrimony Resolution which passed in the Congress last 

year. That resolution condemns the illegal trafficking in tribal cultural patrimony and calls for an explicit export ban. 

I thank you, members of the Committee, for giving me the opportunity to share Acoma’s experiences. I would especially like to 

thank the New Mexico Congressional Delegation for their steadfast 

support on this important matter that is very important to the 

Pueblo Acoma. 

I would be happy to answer any questions you may have. Thank 

you. 

[The prepared statement of Mr. Riley follows:] 

PREPARED STATEMENT OF HON. KURT RILEY, GOVERNOR, PUEBLO OF ACOMA

On behalf of the Pueblo of Acoma (Pueblo), please accept this written testimony 

for the full committee hearing on the Safeguard Tribal Objects of Patrimony (STOP) 

Act of 2017, S. 1400, and other bills held by the Senate Committee on Indian Affairs 

on Wednesday, November 8, 2017. The Pueblo appreciates the opportunity to 

present on this important topic to the Committee and your staff. We have a great 

deal of experience in both combating illegal trafficking of our protected tribal cultural heritage and in seeking repatriation of those items. The Pueblo is grateful for 

the opportunity to share this experience with you. 

I. The Pueblo’s Experience Related to the Protection of Tribal Cultural 

Heritage 

The Pueblo has developed expertise in the protection of tribal cultural heritage, 

especially across international borders. Unfortunately, this expertise came out of a 

necessity to protect our community and our cultural heritage, essential to our way 

of life. Many people view our cultural heritage as beautiful works of art, as 

talismans of a past culture they would like to own, or as items to trade for profit. 

Whatever intrinsic beauty these items possess, that is not their intended purpose. 

Our items of cultural heritage have significant roles to play within our culture, 

our traditional calendar, our societies, our families, and our way of life. Our cultural 

heritage also helps us honor and uphold our values and teach those values to our 

young people. So important are these items of cultural heritage that, under the 

Pueblo’s traditional law, no one person may own them. Rather they belong to the 

community and are cared for by their caretakers, who cannot sell them or take 

these items from the Pueblo. We have prioritized protecting the Pueblo’s items of 

cultural heritage because we believe that, without their presence, we cannot continue our way of life. 

The Pueblo has fought many instances of trafficking in our cultural heritage, including in New Mexico, across the country, and overseas. One well-known example 

is our fight to regain an important ceremonial shield (Acoma Shield), which was 

most recently set to be auctioned in Paris, France in May of 2016. The Acoma Shield 

was stolen from its caretaker in the 1970s and was eventually exported overseas. 

Although we had the unprecedented success of halting the auction—with the help 

of our congressional delegation, federal agency officials, Indian country, and the general public—we have not yet been able to bring the Acoma Shield home. The Acoma 

Shield is just one of hundreds of items of cultural heritage that have illegally left 

our community and been trafficked into various markets. 

22 

1The San Estevan del Rey Mission Church sits atop the mesa at the Pueblo. Founded in 1629, 

it is still cared for and maintained by the Pueblo’s people. It was declared a National Landmark 

and also listed on the National Register of Historic Places in 1970. 2Different types of the Pueblo’s cultural heritage may be stored, cared for, or used differently 

depending on what the item is. For example, some cultural heritage items may be cared for and 

stored by individuals or families in their homes. Other times, different cultural heritage items 

may be cared for and stored in communal buildings, called kivas, by specific societies or clan 

groups. Other times, these objects may be placed outside in the open at sacred sites. Items are 

put in special places to be left there permanently, not unlike the San Ildefonso Pueblo object 

at issue in the case of Pueblo of San Ildefonso v. Ridlon, 103 F.3d 936 (10th Cir. 1996), or the 

repatriation of the Zuni War Gods in the late 1980s (a well known example of the removal of 

cultural objects from area shrines). See also fn 5, infra. 

Some of the earliest recorded incidents of the Pueblo’s efforts to regain its cultural 

heritage involve federal criminal convictions handed down just after the 1990 passage of the Native American Graves Protection and Repatriation Act (NAGPRA), 25 

U.S.C. § § 3001–3013, 18 U.S.C. § 1 170. In United States v. Brian Garcia and Gerald Garcia, 92–515 JC (D.N.M. 1992), two Pueblo brothers pled guilty to illegally 

trafficking the Pueblo’s cultural heritage in violation of NAGPRA. The Pueblo 

worked closely with the United States Attorney’s Office to verify the provenance of 

the items sold. This case represents the importance with which the Pueblo treats 

this issue, even pursuing the federal conviction of our own people. Later, in 1999, 

another example in United States v. Tidwell, 191 F.3d 976 (9th Cir. 1999), involved 

a set of historic Catholic priest robes cared for by the Pueblo, dating from the time 

of the Pueblo Revolt. They were recovered along with many Hopi items of cultural 

heritage. A Bureau of Indian Affairs (BIA) special agent investigated a non-Indian 

tribal art and antique dealer, leading to his conviction and the recovery of the items. 

Later, in the 2000s, as national and international auction houses began to expand 

and reach more collectors through the Internet, the Pueblo became significantly 

more involved in attempting to identify and recover its cultural heritage. In 2006, 

the Pueblo worked diligently with its legal counsel for the return of historic wooden 

beams and doors from the San Esteban del Rey Mission Church. 1 A national auction house had possession of the wooden beams along with nearly 50 other items 

of cultural heritage belonging to the Pueblo. 

In 2015, the Pueblo began devoting more of its resources to addressing this issue, 

as it observed a disturbing number of its cultural heritage items for sale in a variety 

of contexts. They were being sold in locations locally, nationally, and internationally. 

Across 10 incidents, 24 separate Pueblo cultural heritage items were identified as 

being available for sale or having already been sold. Of these 24 items, the Pueblo 

was only successful in securing the return of 11. 

This year in 2017, the Pueblo has so far encountered and identified eight cultural 

heritage items for sale or as having already been sold. The Pueblo was successful 

in recovering five of these items. We believe the decrease in number over the past 

two years is due to our efforts to retrieve our cultural heritage items from public 

sales. However, we are unsure whether this represents an actual decrease in market 

activity or instead represents an increase in black market activity hidden from the 

public eye. 

II. Steps the Pueblo Has Taken to Combat Trafficking 

System for Identifying Protected Items of Cultural Heritage 

It is important to understand that existing federal laws protect only specific types 

of items associated with tribes. Most items are not protected. NAGPRA, the Archaeological Resources Protection Act (ARPA), 16 U.S.C. § § 470aa-470m, and the Antiquities Act, 16 U.S.C. § § 431433 repealed and re-codified at 54 U.S.C. § § 320301– 

320303, 18 U.S.C. § 1866, have specific statutory standards for the items they protect. Generally, they must meet a threshold level of cultural significance and must 

have been taken from specific lands within specific time periods. Although tribes are 

involved in determining which items are protected, see United States v. Tidwell, 191 

F.3d 976, 980 (9th Cir. 1999), they cannot claim items are protected if they do not 

meet these statutory standards. 

The type of cultural items the Pueblo is attempting to protect are difficult to fully 

describe and publicly identify because of their sacred and confidential ceremonial 

use. However, the items are those that are central to our cultural belief system and 

way of life. They are very different from the beautiful works of art created by our 

tribal artists and potters. While our items of cultural heritage may have some intrinsic artistic value, their purpose is very different. 

The Pueblo’s statutes allow for the inclusion of traditional law. Under the Pueblo’s 

traditional law, it is illegal for any member, who may have these cultural heritage 

items in their care, to sell or remove these item from the Pueblo. 2 These cultural 

23 

3See United States v. Brian Garcia and Gerald Garcia, 92–515 JC (D.N.M. 1992); United 

States v. Tidwell, 191 F.3d 976 (9th Cir. 1999) discussed supra. 4 At the time, the Pueblo did not have an established police force, and it was unclear, but unlikely, whether the caretaker ever made any criminal report to BIA officials, who would have 

had jurisdiction over crimes in Indian country. 5The clearest analogy to describe the Pueblo’s law is the legal concept of property rights being 

that of a ‘‘bundle of sticks.’’ For the Pueblo, some members may have rights of possession, but 

they do not have the right to sell an item of cultural heritage. In fact, traditional law dictates 

what is to happen to a cultural heritage item if a caretaker can no longer care for the item. 

The right to sell an item of cultural heritage, although not contemplated in the Pueblo’s traditional law, would be exclusively reserved to the Pueblo itself. Certainly, the Pueblo has never 

exercised this right. The Pueblo’s traditional law closely miiTors the definition of ‘‘cultural patrimony’’ defined under NAGPRA, 25 U.S.C. § 3001(3)(D). 

heritage items are often considered sacred, and many are used publicly and privately in ceremonies. The Pueblo has used this law to establish that specific items 

are considered tribal cultural heritage, which aids in establishing their protection 

and facilitating prosecution under federal law. 3

The Pueblo also has in place a system tribal representative use for identifying 

whether an item is from the Pueblo and whether it qualifies as protected tribal cultural heritage. The Pueblo, through its Tribal Historic Preservation Office, has created an Advisory Board to assist and consult on cultural matters. The Advisory 

Board is staffed with knowledgeable cultural practitioners, many of which are current or former religious leaders within the community. 

To protect the Acoma Shield, federal agencies first needed information from us to 

establish that this was qualified as protected under existing federal law. When the 

Acoma Shield first came up for auction, Pueblo cultural practitioners identified it, 

recognizing its construction, iconography, and usage as a ceremonial and sacred 

item. Needing further information, the Pueblo worked with its community and cultural leaders to find out as much information as possible about how this left the 

Pueblo. While an object of cultural heritage need not be stolen to be protected by 

federal law, we learned that the Acoma Shield was stolen in the mid 1970’s from 

a home in ‘‘Sky City,’’ our ancestral mesa-top village. 4 We were extremely fortunate 

to locate an individual who had a living memory of the Acoma Shield and immediately recognized it. Working with Department of Justice special agents, we obtained affidavits from tribal members to establish the facts surrounding the Acoma 

Shield’s theft and information about its cultural significance. These affidavits were 

used to establish that the Acoma Shield qualified for protection under federal law. 

Many collectors have argued that these items were lawfully acquired and can be 

legally sold. This is a false statement and mischaracterization of how Pueblo and 

federal law treats these items. Under Pueblo and federal law, the Pueblo itself effectively owns the items in question. 5 They need not be stolen to qualify for protection. 

Instead, if they meet the statutory standards for protection under the Pueblo’s laws 

and federal statutes—including NAGPRA, ARPA, and the Antiquities Act—their removal from tribal or federal land and trafficking is illegal. 

Therefore, the Pueblo asks this Committee to not think of these sacred and ceremonial objects in property rights terms, like title and ownership. The Pueblo has 

significant claims and arguments to be made that, by possessing ownership, items 

of tribal cultural heritage are forms of tribal governmental property; but if these objects are merely treated like other pieces of property, their true significance is lost. 

Instead, it is important to move beyond the Western view of property rights and 

consider this issue as one of human and cultural rights. 

Monitoring Market 

With the increased availability of auction house catalogues on the Internet, the 

Pueblo regularly attempts to monitor and respond to auctions involving its cultural 

heritage items. Subscriptions to a wide variety of auction catalogues, online gallery 

websites, and auction websites (like Ebay) allow for scanned listings of sensitive 

items belonging to the Pueblo or our sister pueblos. The Pueblo also attempts to attend local antique or art conventions, and to visit local galleries and pawn shops, 

where we often discover questionable and sensitive cultural heritage items for sale. 

This consistent monitoring has led to discovering, otherwise inaccessible or unknown art and antique gallery inventories. However, this monitoring practice may 

only be scratching the surface. We do not know the number of cultural heritage 

items that may be out there. Aside from tribes’ own work, there is no other system 

for monitoring the trafficking of tribal cultural heritage. 

Relationships with Federal Officials 

The Pueblo has also worked to create close relationships with federal officials who 

can help when a protected item of cultural heritage is identified as being trafficked 

24 

6The French auction of tribal cultural heritage has been widely reported since at least 2013. 

See, e.g., Tom Mashberg, Secret Bid Guides Hopi Spirits Home, NEW YORK TIMES, (Dec. 16, 

2013), http://www.nytimes.com/2013/12/17/arts/designisecret-bids-guide-hopi-indians-spiritshome.html; Tom Mashberg, Despite Legal Challenges, Sale of Hopi Religious Artifacts Continues 

in France, NEW YORK TIMES, (June 29, 2014), http://www.nytimes.com/2014/06/3Warts/design/sale-of-hopi-religious-items-continues-despite-us-embassysefforts.html; SeaAlaska Heritage 

Institute, Secret Bidder Saves Sacred Object from Auction for Alaska Natives, INDIAN COUNTRY TODAY, (Sept. 6, 2014), http://indiancountrytodaymedianetwork.com/2014/09/06/ 

annenbergfoundation-returns-sacred-object-alaska-natives-156764; AP, Navajos Reclaim Sacred 

Masks at Auction, CBS NEWS, (Dec. 16, 2014), http://www.cbsnews.com/news/navajo-indiansbuy-back-sacred-masks-in-france-auction/; Reuters, Hopi Sacred Masks Auction in Paris Despite 

Protests, REUTERS, (June 11, 2015), http://www.reuters.com/article/us-france-auction-masksidUSKBNOOR1DG20150611. 

domestically or abroad. We work closely with a Southwest Regional Enforcement Officer from the BIA’s Office of Justice Services and have also made contacts within 

the Department of State and Department of Justice. In some instances, we have facilitated communication between these federal agencies. Thankfully, these federal 

officials have been instrumental in the Pueblo’s efforts to regain its items of cultural 

heritage. 

Voluntary Return 

Under federal law, like other governmental entities, tribes are treated as nonprofit entities for tax purposes. The Pueblo has used this to our advantage in attempting to incentivize individuals who are considering returning an item. Paperwork and information are provided for these individuals to receive a tax deduction 

and the returned item is treated as a donation to the Pueblo. 

III. Support for the STOP Act 

The Pueblo fully supports the passage of the Safeguard Tribal Objects of Patrimony (STOP) Act, S. 1400. Through our experiences, we have learned many hard 

lessons, first hand, in attempting to protect our cultural heritage. One lesson the 

Pueblo learned is that existing federal laws are not enough. The proposed STOP Act 

strengthens these federal laws in areas we believe need it most. Particularly, the 

STOP Act places an emphasis on facilitating the return of protected items trafficked 

internationally, where we have been the most powerless to gain the repatriation of 

our cultural heritage. These provisions are designed to keep tribal cultural heritage 

items with tribes and to facilitate the return of those that have left tribal possession. 

Current federal law does not adequately address and protect the hundreds of cultural items that have been trafficked from the United States to overseas markets. 

A quick look at past auction catalogues of places where Pueblo cultural heritage has 

been sold quickly reveals the sheer enormity of tribal cultural heritage that has left 

the country. 6 For instance, countries like France have become a safe haven for the 

illegal trafficking of sensitive tribal cultural heritage items, which are sold freely 

without recourse. The STOP Act is an important tool to close the door on the illegal 

trafficking of our important cultural heritage items and send a message that this 

illegal practice will not be tolerated. 

Increased Penalties 

The STOP Act’s provisions would increase criminal penalties under NAGPRA. 

This increase is needed to deter potential violators. It is also needed to encourage 

federal officers to initiate prosecutions, as increased penalties justify additional resources expended on a case. 

Export Restriction 

The STOP Act’s provisions would also explicitly prohibit the exportation of tribal 

cultural heritage obtained in violation of NAGPRA, ARPA, or the Antiquities Act. 

This is needed because foreign governments, including France, have consistently 

told the Pueblo and federal officials that they will not facilitate return of our tribal 

cultural heritage because United States law does not explicitly prohibit its exportation. This is due in part to a 1970 international treaty entitled the ‘‘UNESCO 

Convention on the Means of Prohibiting and Preventing the Illicit Import, Export 

and Transfer of Ownership of Cultural Property’’ in which signatories agreed to protect each other’s cultural heritage when exportation of such cultural heritage is illegal in the originating country. 

To be clear, the STOP Act’s prohibition applies only to items that were already 

protected under NAGPRA, ARPA, or the Antiquities Act. The art industry has been 

operating under the definitions of these laws for decades. The STOP Act does not 

25 

make illegal the export of any items that were legal to sell domestically. Further, 

the Act does not extend to items that were not already protected under federal law. 

The Protection of the Right of Tribes to stop the Export of Cultural and Traditional (PROTECT) Patrimony Resolution, a 2016 joint resolution, supports congressional development of an explicit restriction on exportation. Additionally, congressional representatives have requested the Government Accountability Office research international trafficking in tribal cultural heritage. Thus, Congress has already indicated its interest in resolving the problem of illegal exportation. 

Federal Framework for Voluntary Return 

Third, the STOP Act would create a framework for the federal government to 

work with individuals or organizations to facilitate the voluntary return of cultural 

heritage to tribes. It would call on the Department of the Interior and Department 

of State to designate a liaison for facilitating voluntary return as well as to hold 

trainings. It would also call on the Department of the Interior to create a referral 

system for directing individuals to the correct tribe for repatriation. 

We have learned that many individuals would like to repatriate items but do not 

know where to start. We have also learned that the federal government lacks a systematic process for locating a tribe associated with an item and connecting the individual with a tribal representative. This framework will provide well-intended individuals a mechanism to work collaboratively in returning tribal cultural heritage. 

Tribal Working Group 

Last, the STOP Act creates a tribal working group to advise the federal government on issues related to protection of tribal cultural heritage. The working group 

would work with other federal agencies and committees spread throughout the federal government that deal with tribal cultural heritage issues. We hope the working 

group will lead to more collaboration. 

IV. Addressing Criticisms of the STOP Act 

The Pueblo is aware that the STOP Act has come under criticism by a small segment of art dealers. Predominantly this criticism has come from the Antique Tribal 

Arts Dealer Association, Inc. (ATADA). We would like to take this opportunity to 

address and dispel the main arguments ATADA is currently making. 

MYTH: The STOP Act is redundant because NAGPRA and ARPA already prohibit 

the trafficking of and 18 U.S.C. 554 already prohibits the exportation of protected tribal cultural heritage. 

RESPONSE 

The STOP Act is consistent with, but does not duplicate, existing statutes. No federal statute clearly and explicitly prohibits the act of exporting protected tribal cultural heritage. Existing statutes could be interpreted to prohibit and penalize export 

of tribal cultural heritage, but these statutes have not been effective in preventing 

export and convincing foreign countries to aid in repatriation. 

Section 554 of Title 18 imposes criminal penalties on any person who ‘‘exports. . . any merchandise, article, or object contrary to any law or regulation of 

the United States.’’ This provision has not been used by the federal government to 

prohibit the export of tribal cultural heritage. Further, some courts applying Section 

554 in other circumstances have found that export must already be illegal under another separate statute for Section 554’s penalties to apply. 

NAGPRA bars transporting for sale, selling, and purchasing certain cultural 

items. 18 U.S.C. § 1 170. ARPA bars transporting, selling, and purchasing certain 

archaeological resources, including in some cases in foreign commerce. 16 U.S.C. 

§ 470ee(b)(1)-(2), (c). The Antiquities Act protects objects of antiquity from unlawful 

appropriation, excavation, injury, and destruction. 18 U.S.C. § 1866(b). None contains an explicit export restriction. 

As discussed previously, foreign officials have told the Department of State and 

tribes that without a United States statute explicitly and clearly prohibiting export 

of tribal cultural heritage, they have limited authority to facilitate return. In the 

Pueblo’s most recent effort to recover the Acoma Shield, France cited directly to 

United States law and explicitly pointed to the absence of exportation prohibitions 

on tribal cultural items in its reasoning for not halting the auction. This has resulted in the Pueblo attempting to halt auctions of its protected cultural items 

abroad through foreign agency processes without success, including filing a fonnal 

protest with France’s Conseil des Ventes that was denied. 

Legally and politically, we cannot stem the tide of illegal international trafficking 

without an explicit export restriction. The STOP Act will provide clarity in domestic 

law, removing a stumbling block for the Department of State and tribes as they seek 

return of tribal cultural heritage from abroad. 

26 

MYTH: The STOP Act’s protections may be unconstitutional and could harm the Indian art market due in part to a lack of clarity regarding which items are protected. 

RESPONSE 

It has been alleged that the STOP Act does not provide the necessary clarity to 

define what objects are protected. This is inherently a criticism of the underlying 

laws that the STOP Act relies upon. It is important to note that the STOP Act does 

not create protections or penalties for any object that is not already protected under 

existing federal law. Therefore, the STOP Act cannot qualify as a regulatory taking. 

Instead, increased penalties under the STOP Act are limited to ‘‘cultural items’’ 

already protected by NAGPRA, 25 U.S.C. § 3001(3). Additionally, the export restriction is limited to ‘‘cultural items’’ removed unlawfully under NAGPRA, ‘‘archaeological resources’’ removed unlawfiilly under ARPA, 16 U.S.C. § 470bb(1), and ‘‘objects of antiquity’’ removed unlawfully under the Antiquities Act, see 18 U.S.C. 

§ 1866(b). The export restriction only applies to these items when they are ‘‘Native 

American,’’ as that terms is defined in NAGPRA, 25 U.S.0 § 3001(9). Although the 

STOP Act’s voluntary return provisions could be read broadly, they have no legal 

consequences and are meant only to create a framework for individuals seeking to 

return any items they have and would like to return. 

Further, existing federal laws require a defendant to have knowingly engaged in 

activity made illegal under NAGPRA or ARPA to receive a penalty—thereby, requiring that the individual knew or should have known the object was protected. See 

18 U.S.C. § 1 170; 16 U.S.C. § 470ee(d). Courts have stated that those engaging in 

the sale and trafficking of protected items are deemed to possess a certain level of 

knowledge, whether an item qualifies as protected. See, e.g., United States v. Tidwell, 191 F.3d 976, 980 (9th Cir. 1999); United States v. Carrow, 119 F.3d 796, 803– 

04 (10th Cir. 1997). This is no different than other situations where persons who 

hold themselves out as having specialized knowledge are held to a higher standard 

of care in dealing with others. The STOP Act’s export restriction maintains this 

knowledge requirement. 

The definitions incorporated into the STOP Act are legally sufficient. Courts have 

routinely upheld these definitions as not unconstitutionally vague, even when law 

enforcement officials or courts look to tribal law or tribal representatives to determine whether items qualify for federal protection. See, e.g. United States v. Tidwell, 

191 F.3d 976 (9th Cir. 1999) (upholding NAGPRA); United States v. Carrow, 119 

F.3d 796 (10th Cir. 1997) (upholding NAGPRA); see also United States v. Austin, 

902 F.2d 743 (9th Cir. 1990) (upholding ARPA); United States v. Smyer, 596 F.2d 

939 (10th Cir. 1979) (upholding Antiquities Act); but see United States v. Diaz, 499 

F.2d 113 (9th Cir. 1974) (finding Antiquities Act unconstitutionally vague). 

Congress has already closely considered this issue, including competing testimony 

from tribes, museums, and private collectors. For example, at the time of the passage of NAGPRA, the Select Committee on Indian Affairs resolved to ‘‘[c]arefully 

consider[] the issue of defining objects within the context of who may be in the best 

position to have full access to information regarding whether an object is sacred to 

a particular tribe.’’ See S. Rep. No. 101–473, at 4 (1990). Congress structured the 

definitions of the items protected by NAGPRA to create the necessary flexibility that 

allows tribes to apply their own standards and framework and ensure that items 

necessary for their cultural survival are protected. The intention of existing federal 

law, as explained by Congress and interpreted by the courts, was to clearly value 

tribal culture and law as ultimately dictating the function, treatment, and distinction of which items are considered protected. 

It is paramount that, if collectors or dealers are unsure if an item qualifies as protected tribal cultural heritage, they contact the tribe for more information. To create 

a comprehensive list of protected cultural heritage items is impractical and inappropriate. There are 567 federally recognized tribes, and each has its own objects that 

meet existing federal laws’ definitions to qualify as protected. Within a tribe, traditional knowledge may be held in a diffused way. This makes it next to impossible 

to list all items considered protected because, as dictated by tribal law and custom, 

the totality of such cultural knowledge may not be held by one person, but rather 

only parts of such knowledge may be held by individual people separately. The idea 

of creating lists is troubling to many tribal leaders, especially where it may be culturally inappropriate to divulge information regarding protected objects without a 

significant reason, and tribal religious leaders may not be willing to do so. Additionally, making the public aware that an item qualifies as protected may drive the 

price of that item up and make it more desirable to buy and sell in the black market. Last, creating a list of protected items may create a presumption of completeness that only items on the list are protected. 

27 

If Congress determines it necessary to amend the STOP Act to provide additional 

clarity regarding which items are protected, especially regarding the export restriction provision, the Pueblo could support a permitting system. The Pueblo requests 

tribes and tribal organizations be involved in drafting any such provision. 

MYTH: The STOP Act will result in United States Customs and Border Protection 

acrents seizina all items associated with tribes. 

RESPONSE 

For the reasons discussed above, we believe the STOP Act contains the necessary 

clarity regarding which items qualify as protected and thus as subject to the export 

restriction. Further, the STOP Act authorizes the Attorney General and the Secretary of Homeland Security, in consultation with the Secretary of the Interior, to 

prescribe rules and regulations to carry out the export restriction. Any guidelines 

necessary for Customs and Border Protection Customs agents should be created 

through such rules and regulations and not statute. 

V. Conclusion 

Since the introduction of the STOP Act, there has been a surge of interest in this 

issue, resulting in increased contact between the Pueblo and various collectors and 

dealers. The Pueblo seeks to build and expand its positive relationships with this 

community. When they return these items home, it is a joy for us. We are extremely 

thankful. 

We do not want to be forced to rely on the law and the courts to secure the return 

of tribal cultural heritage. However, it must be emphasized that the law must set 

forth the values of the United States and its Native peoples. Because of that, we 

fully support the STOP Act. The Pueblo looks forward to working with the Committee, generating good will with those who have supported the STOP Act, refining 

the STOP Act as needed, and finally securing its ultimate passage. 

The CHAIRMAN. Thank you, Governor Riley. 

I will turn to Senator Heinrich first. I understand you have another obligation. Would like to proceed with your questions? 

Senator HEINRICH. Thank you very much, Mr. Chairman. 

Governor Riley, it has been more than a year and a half now 

since your Pueblo first discovered that the Acoma Shield was on 

the auction block in Paris, France. That was far from the first time 

something like this has happened. 

Could you tell us a little bit about whether you are aware of additional cases before or since then of sacred items being sold internationally? Is this a one-off issue or is this something you see a 

great deal? 

Mr. RILEY. Mr. Chairman, Vice Chairman Udall, Senator 

Heinrich, thank you for the question. 

Members of the Committee, before I came to the hearing today, 

I did send out word through the All Pueblo Council of Governors 

network asking my fellow governors if there were any instances of 

items that were sold from their pueblos since 2016. The answer 

was a resounding yes. This is not just a one-time occurrence. It 

continues to today. 

Senator HEINRICH. How urgent is it for your Pueblo and tribes 

across the Country for the Federal Government to take some concrete action to stop these auctions? Particularly, do you believe we 

should wait for the GAO study before taking action on this? 

Mr. RILEY. Again, thank you. 

It is urgent. I cannot express how urgent it is to me. The Shield 

must come home. 

This is my second term as a governor. It is an appointed position. 

We do not run for these offices. Since it has been so long, members 

of the Committee, especially the religious people in my community, 

have expressed, please, just bring it home. It is not that easy. 

28 

The sense of urgency is there within my community and, I am 

sure, across Native America as we all realize, just in the small survey that I did just recently, these cultural items are continuing to 

leave and go across the seas to be sold. There is a sense of urgency. 

Should we wait for the GAO report? In my opinion, actions can 

be taken now without the GAO report. However, I think once the 

GAO report comes out, it will only confirm what we know, as Native tribes, Pueblos and Nations in this Country, that it is happening and it is still happening today. 

Senator HEINRICH. Mr. Tahsuda, I find it deeply troubling to 

learn that almost ten months into a new Administration that the 

Department of the Interior itself has not looked into what policy 

changes are necessary to stop the trafficking of sacred tribal objects. 

In your testimony, you say the department is waiting to hear 

from the GAO before forming a policy on this subject. Surely your 

staff already has the information necessary to develop a position on 

this issue. In fact, the Department of the Interior was engaged in 

an extensive tribal consultation process just last year to hear from 

tribes on this issue. 

I, too, look forward to hearing the GAO’s analysis. I hope we can 

learn from it. I hope it recommends additional solutions. I also 

hope that the department is not abdicating its responsibilities to 

tribes by declining to develop its own plans to solve this problem 

given what we know. 

Can you share with us any changes the department has made or 

intends to make to help stop the export of these objects or any policy ideas or recommendations you would like to make on this topic? 

Mr. TAHSUDA. I think the department, under current authorities, 

has been involved in efforts in the past. I think the Governor alluded to that. We obviously will try to do everything we can. 

I agree with the Governor this is hugely important, as tribal history and culture are woven into American history and culture. It 

is obviously important and should be important to all of us but that 

means we need to get it right, I think. That is the reason we want 

to wait for the GAO report. 

The full responsibility is not just in our hands. We have the Department of Justice and the State Department which have roles in 

this. We want to make sure, with the end result, we have all the 

tools in hand that we need to be able to protect our tribal history, 

culture and objects of cultural heritage. 

We want to do it the right way so that our actions are defensible, 

that we can proceed with prosecutions and not have any questions 

under constitutional or criminal law, questions that could arise and 

hinder our efforts to protect that. 

Senator HEINRICH. Senator Udall and I have some experience 

with this. While I have to go to another commitment, I suspect he 

may have some additional questions based on our direct experience 

with these issues. 

Thank you. 

The CHAIRMAN. Does that complete all the questions you have, 

Senator? 

Senator HEINRICH. It does, Mr. Chair. 

The CHAIRMAN. I would like to begin with Ms. Fowler. 

29 

Senator Rounds referred to the issue I am going to ask about in 

my first question. Last week, the Department of Health and 

Human Services notified the Indian Health Service hospital located 

on the Pine Ridge Reservation, which was recently surveyed by 

CMS, and from the CMS survey, they determined the hospital 

would be placed in immediate jeopardy status and terminate the 

hospital’s provider agreements effective November 18. 

That means IHS will no longer be able to bill Medicaid for services received at that facility. My question is, since we were notified 

last week of this announcement, would you provide this Committee 

with an update on how IHS is working to improve upon and address those survey results and make sure the Pine Ridge IHS hospital retains its certification? 

Ms. FOWLER. Certainly. I will share what I can. It is not my area 

of expertise so I may have to provide an update to you at a later 

time or in writing. 

As I mentioned in my testimony, we did take immediate action. 

We immediately performed a root cause analysis to evaluate the 

situation and began addressing some of those immediate issues we 

thought needed to be addressed most urgently such as the staffing 

levels for the emergency department. We are considering our next 

action in light of notice of termination. 

The CHAIRMAN. My question specifically goes to the improvements that need to be made and whether or not Pine Ridge will 

retain its certification. Do you know the answer to that? 

Ms. FOWLER. As I understand it, the termination will occur. At 

this point, there is not an action that would halt the termination. 

We are considering our next steps at this point in time. 

The CHAIRMAN. Would you please provide the Committee a report on those next steps so that we know what they are? 

Ms. FOWLER. We can do that. 

The CHAIRMAN. Thank you. 

The Senate bill, as proposed by Senator Rounds, requires a private entity to conduct an audit of the IHS. That would cover a wide 

range of areas. Senator Rounds has also been developing a substitute amendment and working with IHS to do that. 

That would provide that the Inspector General of the Department of Health and Human Services would do the actual assessment of IHS. 

My question is, would the Inspector General of HHS be able to 

complete that assessment within the given time frames? Are there 

particular aspects of that study you feel should be given priority? 

Ms. FOWLER. I am not able to speak about the Inspector General’s ability to perform the assessment. I will comment that we 

are happy to provide technical assistance on specific provisions of 

the bill in response to your last question. 

The CHAIRMAN. Do you have any areas that should be prioritized, 

in your opinion? 

Ms. FOWLER. The specific areas that are referenced in the bill, 

we have engaged with the GAO and the Office of Inspector General 

on several audits, assessments, and evaluations during the past 

three years. This is the type of technical assistance we would like 

to provide in reviewing the bill with you. 

30 

The CHAIRMAN. Chairman Flute, talk about areas of priority for 

the study in terms of making sure that we address the problems 

at IHS and try to come up with solutions that can make a qualitative difference in the health care services they provide? 

Mr. FLUTE. We would like to see CMS not just close down the 

facilities if they are not meeting the performance standards, but 

also get them up to speed, give them the technical assistance they 

need, such as Pine Ridge which is all news to us. 

The accountability and transparency we are looking for all goes 

back to consultation and good communication with the tribes. 

Tribes are trying to help figure out what is going on in all areas. 

I apologize to you, Mr. Chairman. In my opinion, there is no one 

that is greater than the other. It all has to do with quality of service. We are just not getting the answers. Consultation is not there. 

We try to reach out and communicate and we just do not get the 

answers we are looking for. 

I don’t know if that answers your question, but we do support 

the bill. Great Plains does and the United Tribes of North Dakota. 

We support the bill and are just trying to get the answers and figure out why do we have a high turnover rate of leadership? 

It is unfortunate that the third-party collections, being a veteran 

myself, not to highlight myself, but being able to get services at the 

Fargo VA, I would rather choose to go to the VA, as do my friends 

who are Iraqi and Afghanistan veterans, as I am, who work at the 

Indian Health Service. 

They work at the Indian Health Service. They would much rather go to the VA and travel to Fargo and Sioux Falls to get the quality service that they receive at the VA. It is unfortunate that our 

tribal members are not veterans. They have to go to the Indian 

Health Service. 

They are being refused and turned away because IHS says we 

don’t have the purchase referred care dollars to deal with your 

heart condition because you are not quite at the point of loss of life 

or limb. 

They send them to the other hospitals where now they are being 

charged, the tribal member who is living on low income, working 

at local establishments, Taco John’s, or Dairy Queen at minimum 

wage. The single mother is being charged and now her credit is 

being damaged. 

Those payments are not being made from IHS in a timely manner. There is just so much, Mr. Chairman. I don’t know if I answered your question but we support this bill to try to get a handle 

on this. We do support the efforts of the Senate. 

The CHAIRMAN. Vice Chairman Udall. 

Senator UDALL. Thank you, Mr. Chairman. 

Governor Riley, you mentioned in your testimony the trouble in 

fully describing cultural items publicly because of their sacred and 

confidential ceremonial use. Having worked with Pueblos for a very 

long time, this is something which I am very familiar and greatly 

respect that tradition. 

However, critics have pointed to this confidentiality as the root 

of the problem since some art collectors and dealers may not know 

or be able to identify the cultural significance of the items. 

31 

As you know, the STOP Act facilitates voluntary returns. Are 

there other more effective ways to respect confidentiality while also 

ensuring repatriation of these items that may have inadvertently 

made their way to the market? 

Mr. RILEY. Thank you, Senator, for the question. 

I can only speak for myself and maybe some experiences with my 

tribe. Along the way, we have really experienced the development 

of a relationship with these dealers. I have approached some of 

these dealers myself, gone to their shops, and once we explain to 

them the cultural significance of some items, at that point, they are 

sometimes voluntarily returning an item to us. 

On occasion, however, because of their perception of an investment or value to that item, we offer documentation that they can 

submit. We do not put a dollar value on an item. However, they 

can use that as compensation, if you can all it compensation, since 

tribes are considered a 105(c)(3), so they are making a donation to 

the tribe. 

Lastly, however, if we do not develop a very good relationship, 

we have to play hard ball. I have presented my credentials as a 

tribal leader and advised the owner that if they do not voluntarily 

return an item, we can take the steps necessary to have to proceed 

to using laws to obtain the return of that item. It is their choice. 

I would say 95 percent of the time, you develop that type of relationship. 

Another example is, on eBay, which everyone knows about, we 

have gone through a process where we identify and confirm an 

item should be returned to the Pueblo. Our contacts at eBay immediately shut down the auction, connect us to the consignor and we 

work out things. There are other ways. 

I had a conversation earlier that some items become gray, which 

is art, which is antiquity or an item of cultural heritage. That is 

when it becomes much more difficult to develop that type of relationship. The STOP Act provides that voluntary return. 

I think if we had those amenable conversations, items would 

come back. However, the exportation of the item is where that gap 

is present currently. As dealers, they are knowledgeable and know 

that sometimes these items may be questionable, I cannot confirm, 

but they also know if it is in violation of existing law, they cannot 

be sold within the U.S. 

That is the incentive to transport that item across the seas 

where we would have, as Pueblo, a much more difficult time, once 

it leaves the U.S., to get those items back. A very good example of 

that is the Acoma Shield. 

Senator UDALL. Thank you very much. 

Mr. Tahsuda, you were unable to provide an official position on 

the STOP Act in your testimony but you did state the department 

believes an essential element to combating theft of cultural heritage is vigorous enforcement of NAGPRA. 

Yet, earlier this summer, Secretary Zinke suspended all 

NAGPRA Review Committee activities. The Review Committee is 

‘‘an important enforcement mechanism under NAGPRA established 

by Congress to monitor and review the implementation of the inventory and identification process and repatriation activities.’’ That 

is a quote from the statute. 

32 

Notably, the Review Committee provides Congress and the department with recommendations as to how agencies can better enforce NAGPRA. How can the department adequately enforce 

NAGPRA when Secretary Zinke put the Review Committee on hiatus indefinitely? 

Mr. TAHSUDA. Thank you, Vice Chairman. 

I think it is a bit of a complicated question. We have done some 

review of several FACA committees of which this is one. That has 

been part of the process. The committee is there and will be operating but my understanding is we wanted to make sure the committee was operating within the law and that the membership adequately reflected the intent of the law. 

There are a number of open slots that need to be filled. I think 

that is part of the process that is going on, but the committee will 

be constituted to do its job. 

Senator UDALL. The problem with this is that is the entity to do 

the enforcement. If you are putting this in hiatus indefinitely, you 

have stopped the enforcement activities. I have a real doubt. I 

would like to know and I am going to ask you to put in the record 

in a question, what authority he has to put this in hiatus indefinitely? I just don’t see how. 

The Congress has urged you to act. It is your responsibility to 

act. I do not think you can say oh, we are going to indefinitely postpone it. The message should go to the Secretary that he reconvene 

the Review Committee and continue its statutorily mandated mission, which is I think tremendously important. 

I have gone over here. Mr. Chairman, I have several other questions. 

The CHAIRMAN. We will have another round. 

Senator Cortez Masto. 

STATEMENT OF HON. CATHERINE CORTEZ MASTO, 

U.S. SENATOR FROM NEVADA 

Senator CORTEZ MASTO. I appreciate the conversation today. Let 

me start with S. 1400. 

Governor Riley and Chairman Flute, it is my interpretation, 

after reading the language, that I think the STOP Act remains consistent with Federal statutes. In fact, it goes further to explicitly 

state a prohibition of knowingly exporting or transporting protected 

tribal cultural artifacts, artifacts that under current domestic law, 

are illegal. 

Is it the position of your tribes, and the dozens of other tribal 

leaders who have sent in support letters, that this bill aims to 

clearly and plainly elevate tribal heritage under the same protection for interpretation internationally, yes or no? 

In other words, the intent of this bill is to elevate the tribal heritage, your culture and the items you believe are significant to return and are important to have specific litigation or specific enforcement? 

Mr. FLUTE. Yes, I think it would enhance our culture and heritage, especially for our youth. Tribal languages are on some lists of 

being lost but tribal languages are strongly connected to artifacts 

and those sacred objects that are out on the black market or different types of websites for sale. 

33 

Yes, it would enhance and bring awareness to our culture and 

our language, especially for our youth to reconnect and identify 

with themselves who they are. 

Senator CORTEZ MASTO. Governor, I will ask you the same thing 

because I also see the Antique Tribal Arts Dealers Association has 

concerns about the bill because they claim it criminalizes art but 

what is art to them is something different to you. Can you please 

explain why it is so different to tribal communities across this 

Country and why returning tribal artifacts is so important? 

Mr. RILEY. Senator, I thank you for the question. 

It is very difficult to answer that question and I have answered 

that question on numerous occasions. These items are not pieces of 

art. They were made and created for a certain purpose within our 

cultural societies and our cultural calendar. Unfortunately, it is not 

recognized anywhere else but within our own tribal communities. 

To answer the previous question, it does raise the status of these 

items and being able to be recognized internationally at the same 

level of other world countries and other world cultures. I think 

there has been a long time in not being recognized as such. 

The United States had treaties with other countries to prohibit 

items from coming into this Country. They do not have laws, however, concerning exporting items of cultural heritage to other countries. That is the big difference. 

Senator CORTEZ MASTO. That is the point. Excuse me, I only 

have so much but that is the point because this legislation is very 

specific about elevating these artifacts. It is consistent and not redundant with the law. It is very specific and we do it all the time 

in making it very specific and identifying in the law what we want 

to enforce and protect. In this particular case, it is those cultural 

artifacts, correct? 

Mr. RILEY. Correct. I just want to add one little piece of information. Who is the cultural expert here? Whenever you ask that, it 

is the individual Pueblos, tribes and Nations who are experts of 

their own culture rather than someone else who has studied our 

culture. They are not experts. 

Senator CORTEZ MASTO. Thank you. 

I know my time is running out. I have additional questions as 

well. I can defer and wait. 

Thank you. 

The CHAIRMAN. I can pick up on your line of questioning with 

Governor Riley. 

You talked about how these cultural objects are difficult to describe, publicly identify and so forth, because they are sacred and 

confidential. I guess the question for collectors or auction houses 

that have these artifacts and cultural items, how do we make sure 

they are not unintentionally trafficking or selling some of these 

items, not realizing the cultural significance? How do we identify 

that and make sure we are making them aware in a way that is 

open, transparent, fair and sensitive? 

Mr. RILEY. Thank you for that question. 

I think there have been incidences where children of collectors 

have inherited the collections of their parents. They, in turn, 

maybe do not have the same interest of collecting and as a result, 

34 

they want to dispose of these somehow and put them up for auction. 

I would think that would be considered unknowingly trying to 

sell an item. We understand that. As I said before, I think if we 

raise the awareness of these items possibly being considered sacred 

items by various Pueblos, tribes and Nations, to provide a means 

to reach out. 

If they don’t know, they could contact the local university or 

other individuals who study these kinds of objects to at least guide 

them in a direction. We, at the Pueblo Acoma, are always open to 

such inquiries and have done that on behalf of other Pueblos. 

We have purchased a lot of items, knowing that it does not contain all of our items of cultural patrimony, but we, in turn, reach 

out to other sister Pueblos. On occasion, we get approached and 

none of it is ours but we do closely communicate with each other 

to provide that opportunity for someone else to identify their items 

of cultural property and we return them. 

I think the awareness this bill has produced could be, in turn, 

perceived as being a way of those individuals who, in their opinion, 

are not knowledgeable about selling these items, there is always 

that opportunity to communicate with the local tribes to really 

identify who is the rightful owner of that cultural item. 

The CHAIRMAN. Secretary Tahsuda, we have to find a way to 

make improvements in IHS. That is what this legislation that Senator Rounds has put forward is all about. 

In your opinion, what can we do to start making concrete improvements in the services IHS delivers? 

Mr. TAHSUDA. Chairman, that is not something that we handle 

at the Bureau of Indian Affairs but certainly I think we are all supportive of doing our jobs and delivering services to our constituents 

better, Indian tribes and Indian people. However, we can do that 

in a better way is what we are all aiming for. 

The CHAIRMAN. Certainly, IHS is part of the HHS but it has to 

be a huge concern to you because we are talking about health care 

in Indian Country. That is why I am asking for your opinion on 

what can be done? 

Mr. TAHSUDA. I think overall, the effort the President has directed all the agencies to do to find better ways to streamline decision making and to empower as further down the line as you can. 

I am very fortunate to work for Secretary Zinke. He brings kind 

of a military mindset to this in which he repeatedly talks to us 

about providing the tools to empower the soldiers on the line to 

make the decisions they have to make in the immediate moment. 

I think at the end of the day, that is what we can do. 

What tools do we need or can we find better tools to do that and 

can we empower the people on the line doing the job to correctly 

do the job? 

The CHAIRMAN. Thank you. 

Vice Chairman Udall. 

Senator UDALL. Thank you, Mr. Chairman. 

This question is to Ms. Fowler. It is obvious there needs to be 

increased transparency and accountability within IHS. I am concerned though that this bill, S. 465, would farm out Congress’ oversight and fiduciary obligations. 

35 

As I said in my opening statement, the entire Federal Government has a trust responsibility to the tribes. This includes the Inspector General’s office, GAO and OMB. As I understand it, many 

of these areas of study included in this bill should already be 

tracked and accounted for. 

These are pretty simple yes or no questions. Is the IHS capable 

of providing this Committee with information on the current and 

projected IHS user population by service area and service unit? 

Ms. FOWLER. The Indian Health Service is able to provide the 

current user population. We do not project user population but we 

do project service population. We ought to be able to provide that. 

Senator UDALL. Are you able to provide available medical services offered at each IHS service unit and the most frequent services 

they receive PRC requests for? 

Ms. FOWLER. Yes. 

Senator UDALL. The service’s use of Buy Indian authority and its 

progress implementing the recommendations of GAO 15–588? 

Ms. FOWLER. Yes. 

Senator UDALL. Within the next 30 days, please provide that information to the Committee, if you could. 

Ms. FOWLER. Certainly. 

Senator UDALL. The idea of taxpayer money going to private 

companies to dig for information this Committee should be able to 

get from Federal agencies already strikes me as wasteful and duplicative. I think we can handle this in a much better fashion. 

Let me shift now to Mr. Tahsuda. In last year’s overnight field 

hearing on cultural patrimony, the Department of the Interior testified it was going to hold listening sessions and government-togovernment consultations on international repatriation issues, specifically at the White House Tribal Nations Conference. 

I sent a letter to the President in March urging him to continue 

the tradition of holding the White House Tribal Nations Conference. I have yet to receive a response to that letter. 

After Secretary Zinke testified before this Committee on the Administration’s priorities, I sent him questions for the record and included a question about the future of the conference. Again, I have 

yet to receive a response to those questions nearly seven months 

after they were sent. In fact, I was recently informed that the Committee has not received answers to any member questions for QFR 

since April. 

As the most senior political appointee in Indian Affairs currently 

at Interior, do you agree direct interaction between tribal leaders 

and senior government officials with the decision-making authority 

is critically important? 

Mr. TAHSUDA. Thank you, Vice Chairman. 

To answer your last question, yes, it is very important that we 

have good communication. I am not sure about the status of questions that you or any other member has sent. I would say, as a 

former staff member here on the Hill and actually for this Committee, I understand the importance for you to get responses from 

us for information we may have that you do not. 

That is my personal commitment to get you the information that 

is helpful to you. We can look and see what the status is. I apologize. Obviously, I do not answer for the Secretary but if there are 

36 

outstanding questions about testimony he gave previously, I am 

happy to look into that and find out what the status is. I would 

have to look into that. 

Senator UDALL. We have many from all members, both sides, 

outstanding questions I think really need to be answered. I hope 

you will convey that to the Secretary. 

Thank you. 

Mr. TAHSUDA. Yes. 

Senator UDALL. Thank you, Mr. Chairman. 

The CHAIRMAN. I agree that it is important we get the responses. 

Senator Cortez Masto. 

Senator CORTEZ MASTO. Thank you, Mr. Chairman. 

Let me follow up with Mr. Tahsuda. 

What role does the department have to protect the rights of 

tribes to stop the illegal export of culturally important artifacts? 

What role do you play? 

Mr. TAHSUDA. We have a number of agencies within the department that play a role. I would say, in part, that is what makes the 

answers a little complicated on how to improve it. 

As the Vice Chairman mentioned, the NAGPRA committee has 

a role in helping to identify objects of cultural patrimony under 

that law. I cannot give you a comprehensive answer. If you would 

like a more comprehensive answer or have specific questions, I can 

answer that. 

Senator CORTEZ MASTO. My specific question is what is the role? 

Are you there to help with the identifying repatriation or not? I do 

not mean to be argumentative. I am just trying to understand. 

My understanding is your role is there to assist and help. That 

is not happening and it is being put on hold right now. I am just 

trying to understand what you believe your role is. It doesn’t sound 

like there is a specific answer to it or it is too complex, or you don’t 

know. 

Mr. TAHSUDA. I am sorry. Maybe I didn’t understand your question properly. 

We do have a role. There have been some high-profile cases in 

past years. 

Senator CORTEZ MASTO. Is the role to help stop the illegal export 

of culturally important artifacts? 

Mr. TAHSUDA. We have a role in protecting those. The question 

of the exportation and the fact there is not a law on the books to 

assist us that we could enforce is a problem. 

Senator CORTEZ MASTO. The STOP Act would put the law on the 

book to help you enforce it or help the enforcement of it. You would 

support it? 

Mr. TAHSUDA. Yes, we support being able to protect these very 

valuable and important parts of our tribal and national history. 

Senator CORTEZ MASTO. That is why I am asking because the 

STOP Act does that. It makes it very specific and gives you the 

tools you need to continue to help support and protect those artifacts. You would support it? 

Mr. TAHSUDA. I think you could say the concept we support. We 

want to find an effective way to protect this but the actual tools 

that are there are what I think not just us, but the other departments involved in this overall effort, are trying to identify and the 

37 

GAO is trying to work through with us. We want to have the right 

tools to do this the right way. 

Senator CORTEZ MASTO. Thank you. 

Governor Riley, let me jump back quickly to our conversation because I want to make something clear as well. 

Indian art is economically important across the Country. Buyers, 

collectors and gallery owners provide a boost in the economy and 

directly benefit tribal artisans. Some folks have said that the STOP 

Act would negatively impact Native artists by deterring buyers 

from buying legitimate Indian arts and crafts out of fear that it 

could be deemed an item of cultural patrimony. 

Governor, I am sure you have members of your tribe that depend 

on the income generated from Indian arts and crafts sales. Are you 

concerned about the impact the STOP Act could have on Native 

artists’ livelihoods? 

Mr. RILEY. No, I am not concerned about whether or not the 

STOP Act would impede economic, I guess, commercialization of 

items that were meant to be sold commercially. I think that is just 

a fear being put out there publicly. 

As artisans, I think that relationship already exists where buyers 

and artisans continue to have that type of relationship. Sometimes 

these are long term relationships. If there is a change in the law 

and you are not violating it, that relationship will continue. 

Artisans will continue to produce arts for commercial sale. However, they are very aware that certain items which they do not 

make themselves and attempt to sell could be questionable. I am 

of the opinion that the STOP Act would not inhibit those artisans 

from continuing their work or continue their livelihood. 

Senator CORTEZ MASTO. Thank you. 

I notice I am just out of time. Thank you, Mr. Chairman. 

The CHAIRMAN. I would like to thank the witnesses for being 

here today. We appreciate it very much. 

The hearing record will be open for two weeks and members can 

submit questions for follow up. Secretary Tahsuda, it is important 

that we work with you to get those responses. 

Again, thanks to all our witnesses. We appreciate your being 

here and providing testimony today. 

The hearing is adjourned. 

[Whereupon, at 4:16 p.m., the Committee was adjourned.] 

(39) 

1 ATADA, formerly known as the Antique Tribal Art Dealers Association, is a professional organization established in 1988 in order to set ethical and professional standards for the art 

trade and to provide education for the public. ATADA membership has grown to include hundreds of antique and contemporary Native American and ethnographic art dealers and collectors, art appraisers, and a strong representation of museums and public charities across the 

U.S., dedicated to the promotion, study and exhibition of Native American history and culture. 

www.atada.org. email director@atada.org, PO Box 45628, Rio Rancho, NM 87174. 2 ATADA Bylaws, Article X, Trade Practices, Ethics, And Guarantees. https:// 

www.atada.org/bylawspolicies/ 3 ATADA Bylaws, Article XI, Due Diligence Guidelines. https://www.atada.org/bylawspolicies/ 4 ATADA Symposium, Understanding Cultural Property: A Path to Healing Through Communication. May 22, 2017, Santa Fe, NM. 5 ATADA Bylaws, Article X, ATADA Guidelines Regarding the Trade in Sacred Communal 

Items of Cultural Patrimony. https://www.atada.org/bylaws-policies/ 6 A Journey with Ceremonial Objects, https://committeeforculturalpolicy.org/a-journey-withceremonialobjects/ 7For example, the comments of Gregory Smith, speaking on a panel, ‘‘At the Forefront of Repatriation: New Policy and Impact Beyond the United States,’’ School for Advanced Research 

(SAR), April 19, 2017, https://sarweb.org/?2017iarcsslrepatriation-p:pastlevents, Santa Fe, 

New Mexico, and again at the ATADA Symposium, Understanding Cultural Property: A Path 

to Healing Through Communication. May 22, 2017, Santa Fe, NM. 

A P P E N D I X 

PREPARED STATEMENT OF JOHN MOLLOY, PRESIDENT ATADA 1

Mr. Chairman, my name is John Molloy and I am President of ATADA. Our organization, formerly known as the Antique Tribal Art Dealers Association, represents 

antique and contemporary art dealers, art collectors, and private museums. I am 

taking this opportunity to share the concerns of all ATADA members, especially the 

52 who are constituents of the Committee’s members, with S. 1400, The STOP Act. 

The revised Safeguard Tribal Objects of Patrimony Act of 2017 (S.1400, H.R.3211) 

(‘‘STOP Act’’) will not achieve its primary goal—the return of important cultural objects to Native American tribes and Native Hawaiian organizations—because the 

proposed legislation is fatally flawed. The problem of loss of tribal cultural heritage 

will not be solved by passing constitutionally suspect legislation or creating a new, 

unwieldy, and expensive federal bureaucracy. It will be solved on the community 

level, through education and the promotion of cultural understanding. 

ATADA, the primary organization for art dealers and collectors of Native American art in the United States, has taken important steps to formalize changes to accepted business practices (which most Native American art dealers had already 

independently adopted), and began intensive community educational work to build 

understanding and respect for Native American concerns over the loss of cultural 

heritage. In 2016–2017, ATADA adopted bylaws forbidding trade in items in current 

ceremonial use, 2 established due diligence guidelines to protect buyers and sellers, 3

and initiated public education programs 4 as well as establishing a truly voluntary 

return program for lawfully owned ceremonial objects that has already brought dozens of important ceremonial items from collectors back to tribes in the last year. 5 6

This entirely voluntary program was initiated by ATADA before any federal proposal was suggested, and is the model from which the flawed federal program in 

the 2017 STOP Act was conceived. Even vocal proponents of the STOP Act have 

publicly acknowledged that ATADA’s Voluntary Returns Program will probably do 

more to bring sacred objects back to tribes than any federal interdiction program. 7

II. The STOP Act: A Summary of Issues 

The STOP Act does not identify what items would be blocked from export. Tribes 

hold that identification of sacred items is proprietary knowledge and may not be 

shared. Governor Riley of the Acoma Pueblo made this fact crystal clear in his testimony to this Committee last year when he stated: The cultural objects Acoma is attempting to protect are difficult to fully describe and publicly identify because of 

40 

8Written Testimony of Governor Kurt Riley, Pueblo of Acoma, Before the Senate Committee 

on Indian Affairs Field Hearing on the Theft, Illegal Possession, Sale, Transfer and Exportation 

of Tribal Cultural Objects, Albuquerque, NM, October 18, 2016, p.8. 9There is no question that certain items are regarded by tribes as inalienable precisely because they are ‘sacred’ objects. This circumstance raises potential Establishment Clause issues 

with the STOP Act. Should the Federal Government be involved in determining what is ‘sacred’ 

to any religion? The First Amendment’s Establishment Clause prohibits the government from 

making any law ‘‘respecting an establishment of religion,’’ not only forbidding the government 

from establishing an official religion, but also prohibiting government actions that unduly favor 

one religion over another. 

their sacred and confidential ceremonial use. The result is that the STOP Act makes 

it illegal to export certain items without identifying them, so a citizen has to guess 

whether his actions were legal or illegal, which would violate the Fifth Amendment’s due process clause of the U.S. Constitution and create dangerous legal uncertainties for private owners of a wide range of American Indian art and artifacts. 

The STOP Act states that it is official U.S. government policy to return ALL 

‘‘items affiliated with a Native American Culture’’ to the tribes, which would include 

commercial jewelry, ceramics and other legal possessions. 

The STOP Act will discourage the sale of all Indian art and artifacts, generate 

consumer confusion that will damage legitimate art dealers and tribal artisans, and 

create a bureaucratic nightmare for the tribes and their collaborators. It will harm 

regional economies, especially in Southwest. In New Mexico, for example, cultural 

tourism accounts for approximately 10 percent of jobs and about the same revenue 

as mining, a major state industry. Acoma Governor Kurt Riley acknowledged in testimony submitted in regard to the earlier STOP Act, that ‘‘the vast majority of inventories held by dealers or collectors are of no interest to the Pueblo,’’ yet he proposes a pre-purchase certification system for persons who wish to collect Indian art, 

‘‘establishing a method for collectors. . . to receive a referral to a cultural representative of a tribe likely to be knowledgeable or aware of an object the collector 

is considering purchasing.’’ 8

The STOP Act is unnecessary and redundant. ‘‘Trafficking’’ in violation of 

NAGPRA or ARPA is already unlawful, and 18 U.S.C. § 554 already prohibits export 

from the United States of any object contrary to any law or regulation of the United 

States, while maintaining the Due Process protections that are likely voided by enforcement of the STOP Act. 

ATADA’s Voluntary Returns Program is a better, more effective model, which has 

returned dozens of important ceremonial items to tribes in its first year. 

III. Background 

It is the legitimate policy of the tribes that they, and no one else, should determine which cultural objects are inalienable from their communities, as this right is 

intrinsic to tribal sovereignty. But many tribes also believe that photographs, identifying characteristics, and descriptions of ceremonial objects cannot be disclosed to 

persons who do not have the right and authority to know about such sacred matters, 

not even to all tribal members. Therefore, many tribes refuse to make information 

public that would enable outsiders to know whether he or she possesses a ceremonial object considered inalienable to the tribe. 

Tribes also acknowledge that non-tribal members only possess a fragmented understanding of sacred objects of Indian cultural heritage. So, while some objects, 

such as certain ceramics and masks may be deemed sacred to a tribe and therefore 

inalienable cultural property, a nearly-identical ceramic or mask may not be considered sacred, and therefore may be freely traded by tribal members and non-tribal 

members alike. But still, the knowledge necessary to delineate between these sacred 

and non-sacred object can remain a closely guarded secret and inappropriate to publicize. 

Tribal secrecy may be well justified as necessary for the health and well-being of 

the tribe. But when enacting legislation that hinges upon the definition of ‘‘What 

is inalienable because it is sacred?’’ and imposing severe penalties, the lack of specific, public information about what makes an object inalienable is a prohibitive 

legal barrier to both the exercise of due process and the STOP Act’s goal to return 

sacred objects. 9

There is no question that certain items are regarded as inalienable precisely because they are sacred to the tribal community. This circumstance raises potential 

Establishment Clause issues with the STOP Act. Should the Federal Government 

be involved in determining what is ‘sacred’ to any religion? It is accepted as a fundamental principle of government in the U.S. that the Federal Government is a secular government and does not affiliate with or advance a specific religion. 

41 

10 Connally v. General Const. Co., 269 U.S. 385, 391 (1926). 11 Native American Graves Protection and Repatriation Act, 25 U.S.C. § § 3001–3013, 

§ 3001(3)(c)-(d) (1990). 

12See, for example, the 2007 NAGPRA repatriation of 10,857 cultural items in the control of 

the Burke Museum, including groundstone tools, stone beads, stone carvings, knives, mortars, 

pestles, pipes, stone chisels, sculptures, and pendants and one bag containing over 200 seeds. 

Notice of Intent to Repatriate Cultural Items: Thomas Burke Memorial State Museum, University of Washington, Seattle WA 72 Fed. Reg. 29,174 (May 24, 2007). 13 16 U.S.C. § 470bb(1). 

The information gaps about objects’ cultural relevance and when these objects entered the stream of commerce pose impossible constitutional and practical challenges to the enforcement of the STOP Act. The United States legal system is premised on the idea that a citizen must have fair notice of our laws and an opportunity to be heard. As the Supreme Court has stated, ‘‘[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violate 

the first essential of due process law.’’ 10

The items that tribes most urgently seek to repatriate from non-tribal possessors 

are ceremonial objects and objects of cultural patrimony that tribes claim as inalienable tribal property. 11 These sacred items are also precisely the objects that many 

tribes say it is impossible to identify or discuss publically according to tribal customary laws. As such, notice of what items are claimed by the tribes cannot be divulged to non-tribal owners. The lack of fair warning means that a seizure or forfeiture of property would be based upon information that cannot be disclosed, which 

would be a blatant violation of due process of laws. 

While a failure to provide for due process is a fatal flaw, the STOP Act has other 

serious weaknesses. The STOP Act creates no framework for administration or enforcement of tribal claims. It does not provide for management of cultural objects, 

nor does it include a permitting system for objects deemed lawful to export, nor does 

it provide any funding. It provides no standard for identification of items of cultural 

patrimony, such as a list or database of ceremonial items. Nor does it set for any 

standards of evidence for tribal claimants or means of appeal for the owners of disputed objects. 

The STOP Act’s suggested voluntary returns program also adopts a grossly 

overbroad definition of ‘‘cultural heritage.’’ It establishes a federal policy of encouraging the return of countless legally and rightfully owned objects purely because 

they have some association with Native American culture. Not only does this infringe upon traditional notions of private property rights, it is also expected to overwhelm governmental and tribal resources, as many objects may be returned that 

Native American tribes did not wish to repatriate in the first place. 

For example, under NAGPRA, human remains and sacred items are cultural 

items that the tribes feel are essential for repatriation. However, some museums 

routinely deem very common objects that are widely publicly traded without tribal 

objections as ‘‘unassociated funerary objects’’ under NAGPRA, 12 as there are no 

clear legal definitions. Some museums return multitudes of very common objects. 

Other museums continue to display items that the museums themselves catalog as 

‘ceremonial’ and resist returning them as not justified under NAGPRA. There simply is no standard under NAGPRA. 

Exacerbating the existing lack of definition, the voluntary returns program outlined in the STOP Act encourages the return of any and all objects to tribes, regardless of whether they are covered by NAGPRA or ARPA, calling upon tribes to consult and accept anything that is returned. The STOP Act’s call for return of ‘‘items 

affiliated with a Native American Culture’’ would include everything sold by Native 

American artisans in the past—and today. 

Under ARPA, virtually everything made more than 100 years ago is covered by 

the term ‘‘archaeological resource,’’ 13 but only the age and original location of an 

object makes it lawful or unlawful to own. Moreover, ARPA’s rolling date continually expands the number of items covered under it. Sacred associations are irrelevant under ARPA. 

The STOP Act’s voluntary returns program taints both the antique and contemporary Indian markets, which are major contributors to local economies and irreplaceable sources of income to tribal artisans, particularly in the American West. 

The total Indian art trade is estimated to be valued between $400–800 million a 

year. The annual Santa Fe Indian Art Market brings over 170,000 tourists to New 

Mexico a year. The city of Santa Fe estimates that the market brings in $120 million each year in hotel and restaurant revenue alone. Native artisans, many of 

whom rely on the Indian Art Market for as much as half of their yearly income, 

are also concerned that such a vague law will ‘‘taint’’ the entire American Indian 

42 

14Zachariah Hughes, ‘‘Ivory Ban Hurts Alaska Natives Who Legally Carve Walrus Tusks,’’ 

http://www.npr.org/2016/11/24/503036303/ivory-ban-hurts-native-alaskans-who-legally-carvewalrustusks. 15 Edwin Wade et al., America’s Great Lost Expedition: The Thomas Keam Collection of Hopi 

Pottery from the Second Hemenway Expedition, 1890–1894, 9, (1980) (See also pages 18, 25, 

26, 39) and Edwin Wade et al., Historic Hopi Ceramics 84 (1981). 16 Edwin Wade et al., America’s Great Lost Expedition: The Thomas Keam Collection of Hopi 

Pottery from the Second Hemenway Expedition, 1890–1894. 17 Id. at 15 18 Annual Report of Jesse L. Nusbaum, Department Archeologist and Superintendent of Mesa 

Verde National Park to the Secretary of the Interior, Dep’t of Interior, 6–7 (1929). 19 American Antiquities Act of 1906, 16 U.S.C. § § 431–433. The Antiquities Act of 1906’s undefined use of the term ‘‘object of antiquity’’ was held to be unconstitutionally vague and legally 

unenforceable in the Ninth Circuit, which includes Arizona, where the Navajo, Hopi, and Zuni 

lands are located. U.S. v. Diaz, 499 F.2d 113, 114 (9th Cir. 1974) (discussed infra). 

art market in the eyes of the public. The recent experience of Alaska Natives, in 

which sales of Native-carved walrus ivory dropped by as much as 40 percent following the elephant ivory ban, offer ample evidence of the significance of the threat 

the STOP Act poses to Native American artisans and many tribal economies. 14

But the damage to native artisans and the legitimate markets inflicted by the the 

U.S. policy outlined in the voluntary returns program extends beyond mere 

reputational harm- it could also open the federal government to due process claims 

of taking private property without just compensation. Instituting a policy that encourages the return of all Native American objects could severely diminish the fair 

market value of any Native American object, and make such objects unsellable, as 

buyers and sellers of Native American objects may become fearful of the repercussions should they not abide by the United States policy. Today, a ‘‘good’’ provenance 

can make the difference between a valuable object and one of little worth, or that 

cannot be sold at all. By instituting a policy that calls for the return of all objects 

with a Native American provenance, the United States government could make all 

objects of Native American origin unsellable and therefore commercially worthless. 

IV. The Distribution and Circulation of Native American Artifacts 

There are millions of Native American ‘‘cultural objects’’ in private ownership 

today; but many have no ownership history, or ‘‘provenance.’’ Many objects have circulated for decades in the marketplace, or even for the last 140 years. For most of 

the 140 years in which there has been an active trade in Indian artifacts, provenance and ownership history had no legal or practical effect on the market. 

The best records of early collections of Native American cultural objects are from 

museum sources. Harvard’s Peabody Museum expeditions included the Hemenway 

Southwestern Archaeological Expedition (1886–1894), which brought thousands of 

Zuni and Hopi artifacts from Arizona and New Mexico. In 1892, the leader of the 

Hemenway Expedition paid the trader Thomas Keam $10,000 for a huge collection 

that included over 3000 ceramics. 15 The materials in the collection were either 

bought by Keam and his assistant Alexander Stephen from Hopi or found in explorations of abandoned Hopi towns. Smaller, but still very substantial collections were 

also made by Keam for the Berlin Ethnological Museum, The Field Museum in Chicago, and the National Museum of Finland. Keam also sold widely from his trading 

post to collectors and tourists from across the United States. 16 The materials collected by Keam and sold to the Peabody Museum were sourced from ‘‘throughout 

Arizona, the San Juan region of the southern confines of Colorado and Utah. They 

were exhumed from burial places, sacrificial caverns, ruins and from sand dunes in 

the localities of ancient gardens.’’ 17 During the same years and throughout the early 

20th century, private collectors purchased from the same sources that supplied museum collectors, with the 1880s and 1890s being referred to as ‘‘the heyday of the 

commercial pothunter.’’ 18

Tens of thousands of cultural objects have entered the stream of commerce decades before the first U.S. cultural property legislation was enacted, the American 

Antiquities Act of 1906 (Antiquities Act). 19 Artifacts without provenience were dug 

up and sold to good faith purchasers long after enactment of the Antiquities Act in 

1906. 

Today, the sources of cultural objects in the market and in private collections vary 

greatly. While many objects were taken from tribes by the U.S. government, or sold 

after individuals adopted Christianity, others were sold in the 1960s-1980s, when 

Indian ceremonial objects were avidly collected by non-Indians who admired Native 

American social and environmental perspectives, or who responded to the aesthetic 

and creative qualities of Indian objects. Indian artifacts were sold (with or without 

permission of the community) because of the increasing economic values of tribal artifacts and the comparative poverty of many tribal communities. 

43 

20 18 U.S.C. § 554(a) (emphasis added). 21 As previously discussed, nothing in the language of ARPA or NAGPRA suggests that ‘‘trafficking’’ or ‘‘transport’’ of covered items does not include export. 22The STOP Act’s desire to impose a 10-year jail sentence for violations of less than $1 value, 

is grossly disproportionate to the offense. While proportionality is often rejected as the basis for 

a claim of excessive fines or cruel and unusual punishments, it seems impossible to conceive 

that the Federal Government would wish to impose such harsh penalties. Not to mention that 

the Federal Government is inviting a bureaucratic nightmare by failing to provide a minimum 

value threshold for such violations or any other such procedures to protect against selective enforcement of its own overly broad legislation. 23Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 (1950). 24 19 U.S.C. § 1600. 

In the last twenty-five years, awareness of tribal concerns and the harmful destruction of archaeological sites has changed everything, as attitudes have changed 

very much among art collectors, museums, and the general public. There is increased respect for both the sovereign rights of tribal communities and the importance of retaining sacred objects for the health of these communities. Most recently, 

there is a commitment on the part of art dealers and professional organizations such 

as ATADA, to work directly with tribal representatives to find solutions that truly 

serve Native American interests. 

STOP Act II is redundant legislation, already covered under U.S. law 

In fact, the increase in NAGPRA penalties for illegal export in the STOP Act is 

not a new idea. Proponents of the STOP Act ignore laws already on the books that 

completely meet their needs. Existing law, 18 U.S.C. § 554(a), already provides that: 

Whoever fraudulently or knowingly exports or sends from the United States, or 

attempts to export or send from the United States, any merchandise, article, or 

object contrary to any law or regulation of the United States or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, 

or sale of such merchandise, article or object, prior to exportation, knowing the 

same to be intended for exportation contrary to any law or regulation of the 

United States, shall be fined under this title, imprisoned not more than 10 years, 

or both. 20

This existing law applies the same scienter as the STOP Act (‘‘knowingly’’), covers 

objects protected by NAGPRA and ARPA (‘‘object contrary to any law or regulation 

of the United States’’) 21 and already employs the same heightened penalty that 

STOP seeks to impose (fine or imprisonment not to exceed 10 years). This is precisely the goal that STOP was meant to achieve. 22

The penalty for violating any federal law has a long legal history of requiring due 

process. STOP will shift the enforcement and penalty to the unique nature of cultural property enforcement where burden of proof is shifted from the government 

to the importer or exporter. 

In contrast to 18 U.S.C. § 554(a), the existing law, the STOP Act represents a step 

further in advocating enforcement that rejects the fundamental principles of Due 

Process. 

The STOP Act’s Export Prohibition Violates Due Process Because Its Drafting Does Not Provide Adequate Notice or Procedures for an Individual 

to Be Heard When Their Property is Being Deprived 

Before an individual is deprived of their property right, Due Process requires that 

the Government grant an individual both (1) Notice and (2) Opportunity to be 

heard. 23 But the STOP Act provides no such notice of prohibited conduct or procedures controlling the export controls of Native American-affiliated objects. As a result, we must assume that the default statutory standards apply. 24

The STOP Act’s definitions fail to provide any sort of notice of what conduct is prohibited because it fails to provide any clarity as to what is 

considered ‘‘sacred.’’ 

The STOP Act’s export prohibition fails to adequately clarify for both private individuals and CBP agents of what objects are ‘‘sacred’’ and therefore prohibited from 

export and fails to provide any guidance as to how the definitions and export controls can be enforced without becoming arbitrary and discriminatory. 

If a statute is overbroad, then it is unconstitutionally void for vagueness and 

therefore a denial of due process because it fails to provide sufficient notice of the 

prohibited conduct: ‘‘[T]he void-for-vagueness doctrine requires that a penal statute 

define the criminal offense with sufficient definiteness that ordinary people can unVerDate Mar 15 2010 12:55 May 24, 2018 Jkt 030106 PO 00000 Frm 00047 Fmt 6601 Sfmt 6621 S:\DOCS\30106.TXT JACK
44 

25 Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). 26 United States v. Diaz, 499 F.2d 113, 115 (9th Cir. 1974). 27For example, ARPA, Egypt and Afghanistan protect objects greater than 100 years old. 16 

U.S.C. § 470bb; Egyptian Law on the Protection of Antiquities, art. 1 (1983); Law of May 20, 

2004 (Law on the Preservation of the Historical and Cultural Heritage) art. 2(a) (Afghanistan). 28 United States v. Diaz, 499 F.2d 113, 114 (9th Cir. 1974) 29 In U.S. v. Tidwell, 191 F.3d 976 (9th Cir. 1999), the Ninth Circuit Court of Appeals held 

that NAGPRA was not unconstitutionally vague in defining ‘‘cultural patrimony’’ which may not 

be stolen and traded, and that a knowledgeable dealer in the specific circumstances of that case 

had adequate notice of its prohibitions. However, the range of objects claimed as ceremonial now 

claimed by certain tribes is unprecedented, and a dealer could not be expected to have knowledge as to which objects acquired prior to passage of NAGPRA could be deemed inalienable, 

much less a private owner. ‘‘The court [in U.S. v. Corrow, 119 F.3d 796, (10th Cir. 1997)] acknowledged conflicting opinions, between orthodox and moderate Navajo religious views, regarding the alienability of these particular adornments.’’, Deborah F. Buckman,, Validity, Construction, and Applicability of Native American Graves Protection and Repatriation Act (25 U.S.C.A. 

§ § 3001–3013 and 18 U.S.C.A. § 1170), 173 A.L.R. FED. 765 (originally published 2001). 30 19 U.S.C. § 2604 (emphasis added). 31Governor for the Pueblo of Acoma Kurt Riley notes that ‘‘Our traditions and cultural laws 

often restrict us from publicly discussing some of these items that are sacred and used in ceremony, known and understood for the most part by my Acoma people.’’ The Theft, Illegal Possession, Sale, Transfer and Export of Tribal Cultural Items: Field Hearing Before the S. Comm. 

on Indian Affairs, 114th Cong. 27, 29 (Oct. 18, 2016) (Statement of Hon. Kurt Riley, governor, 

Pueblo of Acoma). 

derstand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.’’ 25

The STOP Act and its underlying legislation fail to provide any clarification to 

differentiate between ceremonial and non-ceremonial objects, and would presumably 

leave the definition of ‘‘Native American cultural items’’ up to the U.S. Customs and 

Border Protection (CBP) and most likely tribal consultants for each and every Native American-affiliated object sought to be exported. 

There is a long history of finding broad definitions of ‘‘cultural heritage’’ and ‘‘antiquity’’ unconstitutionally vague. The Ninth Circuit found the Antiquities Act of 

1906’s definition of ‘‘antiquity’’ to be unconstitutionally vague because ‘‘the word 

‘‘antiquity’’ can have reference not only to the age of an object but also to the use 

for which the object was made and to which it was put, subjects not likely to be 

of common knowledge.’’ 26 The complexity of determining protected ‘‘ceremonial objects’’ under NAGPRA goes beyond a mere minimum age threshold like ARPA and 

many of international legislation. 27 Instead, in some tribes, objects of antiquity include objects that are no more than three or four years old. 28

NAGPRA’s definition of ‘‘cultural item’’ has been met by many criticisms as unconstitutionally vague in its twenty-seven-year history. 29 To determine what is considered a ‘‘ceremonial object’’ under NAGPRA, there is still no standard criteria 

among the tribes and/or museums that could provide the public or the CBP with 

any guidance about what should be repatriated. 

Outlining a list of protected objects may provide a more fair and reasonable notice 

to individuals, but would be nearly impossible to employ under the STOP Act. For 

example, the Convention on Cultural Property Implementation Act (CPIA) requires 

the Secretary of the Department of the Treasury, upon entering into an agreement 

with a State Party or emergency action, to publish a descriptive list designating categories of archaeological or ethnological material subject to import restrictions under 

a specific agreement, so long as each listing is ‘‘sufficiently specific and precise to 

ensure that: 

(1) the import restrictions under section 2606 of this title are applied only to 

the archaeological and ethnological material covered by the agreement or 

emergency action; and (2) fair notice is given to importers and other persons 

as to what material may be subject to such restrictions. 30

But the closely guarded nature of many Native American sacred traditions prevent the creation of a similar list. Although a few (mostly northeastern U.S.) tribes 

have created list of items that they wish to have repatriated, most feel it is not appropriate to do so. Many southwestern U.S. tribes, including the Acoma, Laguna, 

Hopi, and Navajo, have stated that they cannot and will not reveal such information, as the only persons with a specific religious authority with the tribal community are permitted to possess such knowledge. As such, this information is not appropriate to share with anyone outside the tribes, including academic committees, 

the public, and law enforcement. 31 It is their right and choice to withhold information that is not proper to share with outsiders, but this right does not diminish the 

45 

32 As suggested by Ann Rogers, Esq., when speaking at CLE International Visual Arts & the 

Law Conference, Santa Fe, NM July 28–29, 2016. 33 25 U.S.C. § 3006(b). 34Safeguard Tribal Objects of Patrimony Act of 2017, H.R.3211, 115th Cong. § 5, (2017). 35See United States v. Williams, 553 U.S. 285, 306 (2008). 36Written Testimony submitted on October 18, 2016 to the U.S. Senate Committee on Indian 

Affairs by Ms. Honor Keeler, Director of the International Repatriation Project of the Association on American Indian Affairs. 

United States Constitution’s requirement that individuals receive sufficient fair notice and due process when they may be deprived of their private property. 

Similarly, the solution to ‘‘ask the tribes’’ or provide a tribal hotline, 32 though a 

facially reasonable proposal, would be equally unfeasible in follow through. A hotline would impose an impossible burden on tribal organizations to (expeditiously) 

consult on potentially hundreds of thousands of Native American objects in private 

circulation. And if the exporter or CBP wishes to consult on a particular object, 

which of the 567 federally registered tribes should they call? Should they instead 

call the NAGPRA committee designated under NAGPRA, 33 even though the committee does not have authority under NAGPRA and nothing is provided for such 

consultation in the statute? Or should they consult the ‘‘Tribal Working Group’’ established in STOP Act’s other provisions? 34 Ultimately, it is unclear whether anyone would even be able to obtain the information necessary to understand whether 

the object is sacred or not, even after determining who the proper contact should 

be. 

Under the circumstances described above, one can only conclude that the STOP 

Act could not be implemented without raising legal challenges for denial of due 

process to U.S. citizens in possession of cultural objects potentially subject to forfeiture. Due process requires fair notice of conduct that is forbidden or required. If 

a non-tribal U.S. citizen owner of a cultural objects has no notice that a particular 

object is claimed, then due process is not met. If a cultural object is claimed as an 

inalienable object by a tribe that deliberately withholds information on how sacred 

objects can be identified, then due process is not met. 

STOP Act II unconstitutionally violates Due Process because it provides no 

procedures for an individual’s opportunity to be heard 

Due process requires precision and guidance so that those enforcing the law do 

not act in an arbitrary and discriminatory way. 35 The STOP Act presumably only 

permits an opportunity to be heard after seizure. There is nothing in the STOP Act 

permitting a preemptive certification process that would alleviate the administrative 

burden on the CBP and prevent uninformed seizures of individuals’ private property. 

Furthermore, the STOP Act fails to provide any guidelines or forethought as to 

either the time or manner of hearing for exporters to dispute seizure of their Native 

Americanaffiliated property. STOP sets forth no potential procedures to control administration of STOP’s export prohibitions such as (1) a maximum holding period 

for the seized object, which was suggested in the previous incarnation of the Act; 36

(2) a licensing or certification system like the CPIA; (3) any standards of evidence 

(4) a list of actual items that are likely subject to export restrictions. All of these 

fail to give any advance notice of an opportunity to be heard so they may proactively 

avoid seizure or argue against seizure of their property. 

The STOP Act will not pass constitutional muster, nor can it reasonably be 

administered. ATADA is committed to working with tribes for better solutions 

ATADA believes it is crucial to honor Native American traditions, to ensure the 

health and vitality of tribal communities, and to respect the tribes’ sovereign rights. 

We also believe it is important to preserve the due process rights of U.S. citizens 

and to promote the trade in Native American arts that sustains many tribal and 

non-tribal communities in the American West and across the country. The STOP Act 

is ill-conceived legislation that will achieve neither goal and it should not be passed 

into law. 

ATADA is working diligently with tribal officials to craft more realistic and effective solutions that bring us together in mutual respect and understanding. We are 

committed to learning from the tribes and pursuing a path that meets their primary 

goal of repatriation of key ceremonial objects as well as maintaining a legitimate 

trade, academic access, and preservation of the tangible history of the First Americans. 

I would like to thank the Committee on behalf of the over fifty ATADA members 

in the states that Committee members represent for the opportunity to present tesVerDate Mar 15 2010 12:55 May 24, 2018 Jkt 030106 PO 00000 Frm 00049 Fmt 6601 Sfmt 6621 S:\DOCS\30106.TXT JACK
46 

1 ARPA prohibits the trafficking in ‘‘foreign commerce’’ of resources obtained in violation of 

state and local law, but does not reference ‘‘foreign commerce’’ with respect to its prohibition 

on the trafficking of archeological resources excavated or removed from federal lands in violation 

of ARPA’s provisions or other federal law. See 16 U.S.C. § 470ee(b), (c). Instead, the trafficking 

provision applies to items ‘‘transport[ed]’’ if the resource was removed from federal lands in violation of ARPA. Id. § 470ee(b). Similarly, NAGPRA prohibits the knowing ‘‘transport[] for sale 

or profit’’ of Native American human remains and cultural items. 18 U.S.C. § 1170(a), (b). 

timony. ATADA requests the Committee to focus on and to carefully consider all the 

concerns raised regarding the impact of this legislation before proceeding further. 

PREPARED STATEMENT OF TRACY TOULOU, DIRECTOR, OFFICE OF TRIBAL JUSTICE, U.S. DEPARTMENT OF JUSTICE

The Department of Justice appreciates the opportunity to submit a written statement regarding S. 1400, the Safeguarding Tribal Objects of Patrimony Act of 2017 

(STOP Act), and the Department’s efforts to combat these activities and protect Native American cultural resources. 

We strongly support the goal of the legislation, which is stopping the export of 

sacred Native American items, and increasing penalties for stealing and illegally 

trafficking tribal cultural patrimony. The vandalism, theft, and looting of Native 

American relics and artifacts is unfortunately not uncommon. Driving this in part 

is a lucrative market. Individuals in the United States and abroad are often willing 

to pay substantial amounts of money for objects like spiritual headdresses, sacred 

funeral objects, and sometimes even human remains. Since 2013, there have been 

at least six auctions of Native American cultural patrimony in France alone. Several 

U.S. tribes, including the Apache, Hopi, Navajo, and Acoma Pueblo, have appealed 

to the U.S. Government, French authorities, and the auction houses themselves to 

delay the sales of potentially significant tribal patrimony so that a thorough consultation with tribal authorities and experts might determine the provenance of specific items. To date, these efforts have been largely unsuccessful. One reason for this 

is the fact that auction houses typically publish the catalogue of items only a few 

weeks in advance of the auction, leaving little time for potentially interested parties 

and U.S. government agencies to identify specific objects of concern and engage in 

further inquiries about the objects. Additionally, efforts by tribes to stop the auctions through litigation in French courts have not succeeded as neither tribes nor 

their representatives have been able to gain standing to bring a challenge. 

In an effort to curb these activities, the STOP Act would: 

1. Increase the penalties (from a maximum of five years to a maximum of 10 

years) for criminal violations of the Native American Graves Protection and 

Repatriation Act (NAGPRA); 

2. Explicitly prohibit the export of Native American items ‘‘obtained in violation’’ of NAGPRA, the Archaeological Resources Protection Act (ARPA), and 

the Antiquities Act; 

3. Direct the Secretaries of Interior and State to designate liaisons to facilitate 

the voluntary return of cultural objects to the tribe or Native Hawaiian organization with a ‘‘likely cultural affiliation’’ and to provide trainings and workshops to assist in that facilitation, including the use of third-party experts; 

and 

4. Direct the Secretary [of the Interior] to convene a tribal working group consisting of tribes and Native Hawaiian organizations to advise the federal government on the return of, elimination of illegal commerce in, and repatriation 

of tangible cultural heritage. 

We believe that legislation aimed at stopping the export of sacred Native American items can be a useful tool in curbing the sale of these items abroad so that 

they can be returned to tribes. For example, this legislation criminalizes knowing 

‘‘export or otherwise transport’’ of Native American cultural items (defined by reference to existing definitions in NAGPRA, ARPA, and the Antiquities Act) that were 

‘‘obtained in violation of’’ those statutes. Under current law, NAGPRA and ARPA 

both prohibit the ‘‘transport’’ of resources obtained in violation of those laws and effectively prohibit the export of items obtained in violation of NAGPRA. 1 Other federal statutes also provide penalties for exporting objects obtained in violation of 

other criminal statutes and the criminal provisions of ARPA may apply to some objects obtained in violation of NAGPRA. While this bill would provide helpful clarification that the export of all items obtained in violation of NAGPRA and ARPA is 

prohibited, it may not prohibit any export or transfer of Native American cultural 

47 

items that is not already prohibited by other statutes. It is possible that with an 

explicit export control, the United States could more easily invoke Article 9 of the 

1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit 

Import, Export and Transfer of Ownership of Cultural Property to seek assistance 

from other States Parties (e.g., France), including the control of imports and international commerce in Native American cultural objects, thus opening up potential 

legal pathways for their recovery and repatriation should such objects be discovered 

at auction or subject to other commercial activity. However, we have concerns that, 

as currently drafted, the bill would not accomplish the broader goal of curbing the 

sale of tribal cultural heritage abroad. 

While penalty increases might seem like an effective deterrent, we do not feel that 

insufficient penalties are the root of the issue and we would note that five-year penalties are standard for most property crimes. The persons who are engaged in these 

activities know the loopholes and insufficiencies in the existing statutes and they 

know how to use those loopholes to avoid prosecution. Tightening up the language 

in the existing statutes would likely have more effect to curb the illegal trade than 

stronger penalties. 

Under the existing statutes, it is often difficult to know whether items were ‘‘obtained in violation’’ of NAGPRA and ARPA. Prior to the enactment of the existing 

statutes, these items were obtained, traded, bought, and sold legally and the market 

is flooded with items. It is difficult to distinguish an illegally obtained object from 

a legally obtained object, so without knowledge of how the item in question was obtained it is difficult to prosecute violations. It is also difficult to prove that the items 

were removed from public or tribal lands as opposed to other lands (as required by 

ARPA), and that the objects at issue meet the respective definitions of archaeological resource (as required by ARPA to be over 100 years old) or qualify as sacred 

objects or objects of cultural patrimony (as required by NAGPRA). Additionally, 

some courts have found that objects removed from federal or tribal land prior to the 

date of enactment of the applicable statute are not subject to the statutes’ requirements. One way to expand the impact of the bill, other than to amend the underlying statutes to address burden-of-proof issues, would be to additionally prohibit 

the export of items obtained in violation of tribal cultural property laws (similar to 

the Lacey Act), some of which may go beyond the protections of NAGPRA and 

ARPA. Additionally, the legislation could be expanded to prohibit the export of goods 

embezzled from tribes in violation of 18 U.S.C. § 1163. 

Additionally, as drafted, we note that the bill requires a ‘‘knowing’’ standard for 

criminal prosecution, which could be interpreted to require that one must know that 

the item was obtained in violation of the specified statutes. This would make prosecutions very difficult. Instead, we would recommend that the provision be revised 

to read, ‘‘It shall be unlawful for any person to export or otherwise transport from 

the United States any Native American cultural object knowing that it was obtained 

unlawfully.’’ 

We also note that the bill provides solely criminal penalties for violations of the 

export prohibition. We would recommend that it be expanded to include a seizure 

and forfeiture provision, to facilitate the return of the items to the tribes to which 

they belong. 

Lastly, we recommend that the legislation also provide for protection from disclosure (e.g. FOIA exemption) of information supplied by tribal authorities for purposes 

of law enforcement, for training and workshops, to obtain Federal assistance with 

repatriation, or for purposes of the development or implementation of rules and regulations. 

Perhaps a more effective way to address the problem would be to prohibit the export of all objects of Native American cultural heritage (categories of which could 

be identified in the statute or created through a separate administrative process) 

without a permit or authorization and provide for an agency such as the Department of Homeland Security or the Department of the Interior to implement a permit 

program, in consultation with tribes and interagency participation. Such a scheme 

would not reference violations of NAGPRA or ARPA, but would be a standalone program similar to that established by New Zealand, Australia, and Canada. See also 

50 C.F.R. pt. 22 (eagle feather permitting scheme regulated by Interior). This approach would also greatly simplify publicizing this prohibition with domestic and 

foreign audiences. This permit system could also be implemented by a commission, 

established by the Department of the Interior in consultation with the Department 

of Justice, which would develop regulations by which the commission would issue 

permits for the export of Native American cultural heritage objects. Commission 

membership could include representatives of federally recognized tribes and individuals with an expertise in Native American culture, archaeology, and legal matters 

related to the trafficking of cultural items. 

48 

1For more about GHA, see its website, http://global-heritage.org/ 2The Theft, Illegal Possession, Sale, Transfer and Export of Tribal Cultural Items: Field Hearing Before the S. Comm. on Indian Affairs, 114th Cong. 12 (Oct. 18, 2016) (Statement of Tracy 

Toulou, Director of Tribal Justice, U.S. Department of Justice). 3 Civil forfeitures under ARPA and NAGPRA should be governed by the provisions of the Civil 

Asset Forfeiture Reform Act of 2000, which also places the burden of proof on the government. 

18 U.S.C. § 983(c). 

The permit process would regulate, and in most cases prohibit, the export of Native American cultural items. Additional criminal penalties (which generally require 

some level of mens rea) would only apply to knowing exports of (or attempts to export) such items without a permit. Thus, an individual would only be subject to 

criminal sanctions if s/he knowingly attempted to avoid the permitting process. 

The Department of Justice supports the efforts of Congress and the leadership of 

the New Mexico delegation on these important issues over the decades, but as the 

recent international auctions demonstrate, there are still significant challenges and 

we hope to work with Congress in addressing those challenges. Thank you for the 

opportunity to provide input on S. 1400, the Safeguard Tribal Objects of Patrimony 

Act of 2017. 

PREPARED STATEMENT OF PETER K. TOMPA, EXECUTIVE DIRECTOR, GLOBAL

HERITAGE ALLIANCE

Mr. Chairman, my name is Peter Tompa. I am testifying on behalf of the Global 

Heritage Alliance (GHA). 1 The GHA’s mission is to foster appreciation of ancient 

and indigenous cultures and the preservation of archaeological and ethnographic artifacts for the education of the American public. 

The GHA wishes to express a number of concerns with this well-meaning legislation, whose goals and objectives we share. As currently written, STOP will fail to 

achieve these goals. At the same time, it will have significant negative consequences 

for the legitimate trade in Native American artifacts, undercutting both its avowed 

purpose and threatening an individual’s right to due process. Nevertheless, the GHA 

stands willing to work with the bill’s sponsors to ensure the bill accounts for our 

concerns. 

If History is any Guide, the STOP Act Will Encourage Customs to Shift the 

Burden of Proof Administratively on to the Exporter to Demonstrate 

that the Property was Lawfully Removed from Federal or Indian Lands 

STOP builds on the Archaeological Resources Protection Act (ARPA), 16 U.S.C. 

470aa-470mm; Public Law 96–95 and The Native American Graves Protection and 

Repatriation Act (NAGPRA), Pub. L. 101–601, 25 U.S.C. 3001 et seq. ARPA and 

NAGPRA place the burden of proof on the federal government to prove that an individual was aware of the illegal nature of the underlying crime. ARPA and NAGPRA 

also require the government to prove the defendant was aware of the facts and circumstances that constitute the crime. In some circuits, it means that the government must prove the defendant knew the item was an archeological resource that 

was illegally excavated. This presents a significant challenge to the government, 

since it must prove that the current possessor knew of the illegal conduct. 2

The same considerations apply to civil forfeitures made pursuant to these statutes. Requiring the government to prove the elements of its case under the preponderance of the evidence standard applicable to civil forfeitures provides property 

owners with protection from government seizure of property whose origin is unknown. 3 Given the hundreds of thousands of items that are not in violation of 

ARPA or NAGPRA but lack documentation, this is a significant protection to collectors and small businesses that deal in Native American artifacts. 

However, current enforcement of another ‘‘cultural property’’ statute, the Convention on Cultural Property Implementation Act, 19 U.S.C. § § 2601 et seq. (CPIA), 

should raise red flags about how the STOP Act may be enforced in practice. The 

CPIA authorizes the imposition of import restrictions on ‘‘designated’’ archaeological 

and ethnographic objects illegally removed from their country of ‘‘first discovery’’ 

after the effective date of the restrictions. 19 U.S.C. § 2606. The CPIA explicitly 

places the burden of proof on the government to make out each of these elements. 

19 U.S.C. § 2610. Unfortunately, despite the CPIA’s plain meaning, implementing 

regulations place the burden of proof on the importer, not the government, to prove 

the negative, i.e., that the object was exported from its country of first discovery before the date import restrictions were imposed. Given the modest value of most imported cultural goods and the high cost of legal services, in practice this usually 

means that the importer defaults and the government is able to forfeit the property 

49 

4The Theft, Illegal Possession, Sale, Transfer and Export of Tribal Cultural Items: Field Hearing Before the S. Comm. on Indian Affairs, 114th Cong. 24 (Oct. 18, 2016) (Statement of Cheryl 

Andrews-Maltais, Senior Advisor to the Assistant Secretary-Indian Affairs, U.S. Department of 

the Interior). 5Smith v. Goguen, 415 U.S. 566, 576 (1974) (finding that a Massachusetts flag desecration 

statute prohibiting ‘‘contemptuous’’ treatment of the U.S. flag was unconstitutionally vague and 

overly broad because it failed to draw reasonably clear lines between the kinds of nonceremonial 

treatment of the flag that are criminal and those that are not.) 6Goguen, 415 U.S. at 574. 

without a fight. The implementing regulations thus make it easy for the government 

to prevail over collectors and small businesses, wrongfully denying them the protections Congress intended. 

If STOP becomes law, regulatory authorities will have a similar incentive to ensure whatever the legislative intent, the burden of proof is placed on the individual, 

not the government. The problem is that prosecutors will have a difficult time proving that items are stolen, ‘‘and from where they might have been taken.’’ 4 With 

trade of Native American objects active since the nineteenth Century, the absence 

of provenance information for the vast majority of objects, and the STOP Bill’s allinclusive definition of ‘‘cultural objects,’’ it would be almost impossible for U.S. Customs and Border Protection (CBP) to expeditiously decide whether an object can be 

exported or not. As a result, CBP may require exporters to make certain evidentiary 

showings to demonstrate that their object is not stolen. In other words, with no procedures in place, there is nothing stopping the CBP from employing a similar burden-shifting mechanism to enforcement of the STOP Act. And like the challenges 

facing importers under the CPIA, it is almost impossible to prove (or disprove) that 

a Native American-affiliated object was found on private lands, federal lands or tribal lands. 

Even worse than the CPIA, which incorporates only time and location considerations, the STOP Act adds the challenge of evaluating whether the object is ‘‘sacred,’’ a fatal flaw to providing fair notice to the individual that their property may 

be subject to export restrictions. As part of an individual’s opportunity to be heard, 

this could place an even greater burden on the individual to demonstrate to CBP 

that an object does not fit within STOP Act’s definitions of ‘‘Native American cultural heritage,’’ an even more burdensome requirement than that placed on importers under the CPIA. 

The STOP Act’s Vague Definitions and Procedures will Lead to Selective 

Enforcement of the Export Prohibitions 

As a result of the lack of fair notice to both the CBP and individuals, the CBP 

will likely be tasked with enforcing legislation where they have no means of carrying out informed and uniform enforcement. Where inherently vague statutory language permits selective law enforcement, there is denial of due process. 5 In striking 

down a flag desecration statute in Smith v. Goguen, the Supreme Court noted that 

flag desecration statutes are often void for lack of notice because these statutes fail 

to acknowledge that ‘‘what is contemptuous to one man may be a work of art to another.’’ 6 Similarly, the STOP Act fails to distinguish that ‘‘what is ceremonial to one 

tribe may be a work of art to another.’’ 

Even if Native American tribes do become involved in defining what is ‘‘sacred’’ 

and therefore unexportable, interpretations will likely be incongruent and lead to 

disparate results depending on which tribe is contacted or the level of the tribal liaison’s expertise. For example, the Antique Tribal Art Dealers Association (‘‘ATADA’’) 

has a policy that attempts to return certain objects to Native American tribes. In 

implementing that policy, ATADA has conferred with designated tribal cultural heritage experts. In this process, it has happened that only an expert within a tribe 

could identify one of several similar objects as being important to the tribe, while 

the non-tribal layperson, although very experienced, could not have made the determination. 

The bottom line is that the legislation as currently drafted, although seeking worthy objectives, erodes individual due process rights by encouraging Customs to reverse the burden of proof, something that will inevitably result in an uncompensated taking. Such abuses may well be unavoidable under the STOP Act given the 

unique challenges that the STOP Act will place upon law enforcement. Governor 

Kurt Riley of the Acoma Pueblo aptly summed up the problem before this Committee last year when he stated: The cultural objects the Acoma is attempting to protect are difficult to fully describe and publicly identify because of the sacred and confidential ceremonial use. 

Given the task of protecting a few secret and undefined items in the midst of a 

vastly greater number of legal items with no provenance, there can be little doubt 

50 

that the enforcement result will mirror CPIA import restrictions that reverse the 

burden of proof. Such a state of affairs will violate Due Process and threaten the 

legality and value of significant numbers of legal items without providing significant, effective protection to sacred items. 

Conclusion 

In summary, the GHA asks the Committee to address these real and valid concerns as part of the legislative process. As proposed, the legislation threatens uncompensated takings without offering a clear path to achieve the legislation’s stated 

objectives. Allowing law enforcement to shift the burden of proof is unfair to owners 

of legal objects. Moreover, there is a real danger that the law will become unenforceable. By treating so many objects as potentially tainted, federal authorities will be 

unable to provide comprehensive or consistent enforcement and are likely to miss 

the most important illegal objects. In addition, a presumption of guilt combined with 

the difficulty of proving an object is legal will drive legitimate participants out of 

the market, reduce transparency, and harm all legitimate trade, and the cultural 

understanding it brings. 

PREPARED STATEMENT OF HON. MARK N. FOX, CHAIRMAN, MANDAN, HIDATSA AND

ARIKARA NATION OF THE FORT BERTHOLD RESERVATION

Introduction 

Chairman Hoeven, Vice Chairman Udall and Members of the Senate Committee 

on Indian Affairs, the Mandan, Hidatsa and Arikara Nation (MHA Nation) appreciates the opportunity to provide this testimony on the following bills: 

• S. 1870, the ‘‘Securing Urgent Resources Vital to Indian Victim Empowerment 

Act’’ (SURVIVE Act); 

• S. 1942, ‘‘Savanna’s Act;’’ and 

• S. 1953, the ‘‘Tribal Law and Order Reauthorization and Amendments Act of 

2017.’’ 

As you know, the MHA Nation is working to ensure long-term benefits from the 

significant oil and gas development on our Fort Berthold Indian Reservation which 

sits in the middle of the Bakken Formation. However, our communities have also 

experienced many social impacts from this rapid development on and near our Reservation. Impacts include high rates of traffic accidents on our rural roads, increased incidences of violent crime, and the presence of organized crime such as 

drug and human trafficking. Our communities are now facing a crisis that stems 

from drug addiction and violence. 

The increased populations and related social issues are straining our tribal justice 

infrastructure. For example, from 2013 to 2015, the MHA Nation District Court saw 

its caseload grow by over 2,000 percent, with total case numbers in 2015 similar 

to that of Bismarck, which has a population of around 67,000 people. Our total population is less than one-tenth that with 6,300 people over our one million-acre Reservation. We are managing this caseload with no influx of resources to increase capacity in our tribal courts or to investigate increased cases of sex trafficking. Our 

members repeatedly report feeling unsafe in their own homes, and many of our citizens have witnessed firsthand the terrifying realities of sex trafficking. 

Drug trafficking and addiction on our Reservations have also reached epidemic 

proportions. Though it is a general medical clinic, our Elbowoods Memorial Health 

Center uses 90 percent of its contract health budget for drug-related health care 

issues. In addition, 90 percent of the drug and alcohol related cases are beyond the 

scope of our local drug treatment center’s services and must be referred to other facilities. The MHA Nation has taken a strong stand in support of our citizens by beginning to build a drug treatment facility in Bismarck, but we must ensure that our 

current facilities and staff on the Reservation are supported in their lifebuilding 

work to combat addiction. 

The effects that addiction and sexual violence are having on our children underscore the long-term impacts of this current crisis. From January 2013 to August 

2015, 132 newborns were born addicted to meth and other drugs. In 2014 alone, 85 

babies (three years and younger) were exposed to drugs. These children are often 

removed from their homes for their protection, but are placed in an overburdened 

system. Many Indian children are placed in homes off the Reservation, separated 

from vital cultural connections and community support networks. These issues are 

cyclical, as foster children are at a very high risk of experiencing trauma, and even 

being recruited for sex trafficking. 

51 

We hold our children sacred and families sacred. Now is the time to support our 

tribal justice systems. The MHA Nation strongly supports passage of S. 1870, S. 

1942 and S. 1953. We looking forward to working with you to support and find solutions for our overwhelmed social services and criminal justice infrastructure to address the increased needs of our citizens in response to boomtown development. 

S. 1870, the ‘‘Securing Urgent Resources Vital to Indian Victim 

Empowerment Act’’ 

The MHA Nation strongly supports the expansion of types of victim assistance, 

services, and infrastructure that would be funded under the S. 1870, the ‘‘Securing 

Urgent Resources Vital to Indian Victim Empowerment Act’’ (SURVIVE Act). Victims of crime, especially those whose victimization includes months or years of sexual assault and rape, require multiple types of services such as counseling, medical 

care, safe housing, and legal assistance. Opening up existing funding sources to increase tribal resources for all of these services will allow the MHA Nation to build 

our infrastructure to match the current need, including trainings for law enforcement and service providers, as well as building a networked system of services coordinated so all clients receive access to services. 

The rural location of our Fort Berthold Indian Reservation serves as a challenge 

to deliver services to all those in need, especially in a confidential and safe manner. 

Enhanced funding in tandem with privacy protections will go far to assure victims 

that they are not risking their safety nor will they face shame or embarrassment 

by reporting sexual violence. Especially as relates to sexual violence, the MHA Nation supports enhanced attention to placing Sexual Assault Nurse Examiners on and 

near Indian communities to collect information and evidence that can lead to prosecutions at the tribal and federal levels. 

Furthermore, the MHA Nation is committed to providing our members with services that are culturally tailored and speak to their Mandan, Hidatsa, and Arikara 

identity. Increasing funding for tribally delivered services creates the opportunity 

for us to ensure that our own cultural and spiritual values are at the core of all 

our programming. 

S. 1942, ‘‘Savanna’s Act’’ 

The MHA Nation greatly appreciates Senator Heitkamp’s sponsorship of S. 1942, 

‘‘Savanna’s Act’’ and strongly supports its passage to improve coordination across jurisdictions to collate tribal, federal, state and local law enforcement data. This type 

of inter-jurisdictional data collection would streamline existing efforts and facilitate 

much needed cross-deputization of tribal, local, and state officers to provide safety 

for everyone living on our rural reservation. We also hope that improved data collection efforts lead to increased dialogue about expanding tribal jurisdictional grants 

in the Violence Against Women Act to allow tribes to prosecute human trafficking 

crimes committed by non-Indians on tribal land. 

The MHA Nation views data collection at every level as a necessary step to provide for healthy Indian communities on our Fort Berthold Indian Reservation. Data 

drives our understanding of the types of crimes occurring in our communities, which 

then equips our tribal law enforcement, social services, and victim services to better 

meet the needs of affected individuals and families. The dearth of available data 

and research specific to violence against Native American women is deplorable because it does not provide an accurate picture of the trauma faced by these victims 

and their communities, nor does it provide resources for adequate investigation and 

prosecution of these heinous crimes. 

For example, while evidence suggests Native women experience human trafficking 

at a higher proportion than the general population, there were just 14 federal 

human trafficking investigations in Indian Country from 2013–2015 resulting in 

only two prosecutions. Collecting disaggregated data is a strong step towards matching the reality as seen by our tribal service providers to the numbers necessary to 

increase research, prosecution, and funding. 

The MHA Nation urges passage of Savanna’s Act for another reason: to prevent 

the exact crime that cut short Savanna Greywind’s life. Federal attention is necessary to effectively combat violence against women, which too often ends in cases 

of missing and murdered Native women. Protocols that enhance coordination and 

provide for early intervention in these cases must be developed to protect Native 

women. Our tribal service providers have a close understanding of the needs of their 

clients and the MHA Nation welcomes federal consultation that uses these perspectives for the development of standardized protocols. 

Finally, we need data on missing and murdered Native women to quantify the social impacts of rapid development that is unique to our Reservation. The influx of 

oil industry workers on and near our lands changed the fabric of our community 

52 

and having accurate data is one way to engage in dialogue with the oil and gas industry regarding responsibilities they have while operating on our Reservation. In 

this way, we can harness the benefits of economic development while also providing 

the attendant safety and services infrastructure necessary to keep our communities 

thriving for generations to come. 

S. 1953, the ‘‘Tribal Law and Order Reauthorization and Amendments Act 

of 2017’’ 

The MHA Nation greatly appreciates Chairman Hoeven’s sponsorship of S. 1953, 

the ‘‘Tribal Law and Order Reauthorization and Amendments Act of 2017’’ and 

strongly supports passage of the bill. However, much more needs to be done to solve, 

or even put a real dent in, the public safety crisis on our Fort Berthold Indian Reservation and across Indian Country. Most important, Congress must provide the 

funding needed for adequate law enforcement in Indian Country. We genuinely fear 

that the re-authorization of the public safety ‘‘needs assessment surveys’’ called for 

in S. 1953 will remain nothing more than another academic exercise that does not 

result in any real change. The extreme shortage of law enforcement officers in Indian Country, and especially on our Reservation, has been well known to Congress 

and Federal agencies for more than thirty years, yet nothing has changed. The 

MHA Nation and other tribal communities currently experience more drug and gang 

activity and more unprosecuted crime than ever before even though similar federally 

funded needs assessments surveys have been submitted to Congress since 2011. 

As noted above, the significant increases in populations and activity on our Reservation from oil and gas development have long surpassed the capacity of our law 

and order programs. Even now, ten years after oil and gas development took off on 

the Reservation, the Bureau of Indian Affairs (BIA) is not able to staff our current 

law enforcement program to meet our most basic needs. This has left our community unprotected, our officers over-worked to the breaking point, and our courts 

struggling to provide the most basic services required by applicable law. While increased funding will not solve every law enforcement problem, it is necessary to 

hire, train and retrain additional officers and to give our tribal courts a fighting 

chance to address some very real problems. 

The MHA Nation also needs real and immediate support for alcohol and drug 

treatment programs. S. 1953 is not the first bill to find that ‘‘drugs and alcohol remain key contributors to Indian Country Crime,’’ yet federal alcohol and drug treatment programs remain disjointed, overly bureaucratic, and seriously underfunded. 

As a result, if a tribal programs and services do not fit into the proper federal program box, assistance is simply unavailable. When federal assistance is available, individual tribes get pennies when dollars are needed—in addition to a stack of federal regulations limiting our ability to address local problems. 

We also want to highlight the MHA Nation’s serious need for law enforcement 

and detention facilities, and for funding to operate those facilities after they are constructed. Police officers cannot function without a police station, dispatch center and 

a jail. Tribal courts cannot function without a court house and records storage. The 

MHA Nation was forced to spend its own funds to build a new space for our tribal 

law enforcement program and tribal court, yet todate BIA has not contributed any 

funds to even help operate this facility. This is wrong and violates the United 

States’ treaty and trust responsibilities to the MHA Nation. 

We appreciate your consideration of these overarching issues as S. 1953 moves 

forward and Congress prepares to pass appropriations bills for the agencies that 

fund tribal law enforcement and justice programs. In addition, the MHA Nation has 

the following specific comments on the provisions of S. 1953. 

Section 102—Integration and Coordination of Programs 

While the MHA Nation supports efforts to better coordinate law enforcement, substance abuse and mental health efforts, it is important to keep in mind that all of 

these programs are already severely underfunded. It is also important to remember 

that not all substance abuse and mental health problems lead to criminal activity. 

Thus, for both of these reasons, moving substance abuse and mental health money 

from health clinic programs to the law enforcement programs creates a whole new 

set of problems. 

MHA also has serious concerns about the implied idea of moving BIA law enforcement activities from the Department of the Interior to the Department of Justice. 

We have already seen what happened, in the past, when Indian law enforcement 

money was transferred to Justice for on-reservation FBI efforts. Those dollars simply disappeared! 

We have also seen what happened when Justice assumed the lead for detention 

and court construction, without tribal consultation or approval. What was once a seVerDate Mar 15 2010 12:55 May 24, 2018 Jkt 030106 PO 00000 Frm 00056 Fmt 6601 Sfmt 6621 S:\DOCS\30106.TXT JACK
53 

verely underfunded, but nonetheless workable program, has all but ceased to exist, 

as has all money for operating and maintaining tribal court buildings. With the 

BIA, we at least know whom we are dealing with and an agency that understands 

its trust responsibility. At Justice, tribal programs will be nothing more than a tiny 

problem that never attracts the attention needed. In short, we don’t believe that 

moving a program from one agency to another can solve staffing and funding shortages. 

We also note that while the relationship between BIA public safety and justice 

programs and Justice funded efforts has improved, it remains disjointed, and largely 

unworkable. This is because, on-reservation crime and justice occur in unique jurisdictions, involve tribal as well as federal laws, and impact areas that are different 

than those that Justice is accustomed to. For example, the Justice crime data collection system is designed to track felonies, while tribal police systems deal largely 

with misdemeanors. 

Finally, while we support making federal prisons available to tribes to address 

some limited needs, such as the need to house detainees with serious medical conditions or mental health issues, federal prisons should never be seen as a substitute 

for well run, comprehensive, tribal detention facilities. 

Section 103—Data Sharing with Indian Tribes 

The MHA Nation supports the continued use and expansion of the federal criminal database. This system is of particular importance to us because the oil and gas 

development in our area now forces our officers to deal with a highly transient population. We also strongly support the bill language which continues to give our public safety systems notice, when federal investigations are stopped, and when federal 

prosecutions are denied. 

Section 105—Federal Notice 

The MHA Nation strongly supports the bill language requiring tribal notice when 

tribal members are convicted in federal court. All too often, tribal members lose 

track of family members who leave the reservation. Far too many of these people 

suffer from, or succumb to, addictions or mental health problems and this notice can 

help those families reconnect and provide the support necessary for rehabilitation. 

In addition, our tribal courts often have open cases which involve persons who are 

in the federal system. This notice can help our courts better manage their dockets. 

Section 106—Detention Facilities 

The MHA Nation supports the possible use of detention funding to support alternatives to incarceration, however, we must emphasis again the severe underfunding 

of tribal detention programs and detention facilities. Unless additional resources are 

forthcoming, this expanded opportunity will merely force us to rob from one underfunded program to fund another. 

The MHA Nation also notes that federal legislation, federal funding, and federal 

programs often confuse, or fail to distinguish between, the various detention needs 

that we face in our tribal communities. This is because the words ‘‘detention’’ and 

‘‘incarceration’’ have different meanings in different circumstances, including: 

• a 24 to 72 hour lock up of a violent person under the influence; 

• a hold of a person charged with a more serious crime, who has yet to be arraigned, or convicted of a crime; 

• an adult or juvenile sentenced to a short term detention of a few weeks; and 

• a person sentenced for six months or more. 

With these on the ground differences, it is very frustrating when Congress or federal officials suggest a new emphasis on funding ‘‘alternatives to incarceration,’’ 

when that term only applies to one or possibly two of the categories of detention 

referenced above. 

The MHA Nation also emphasizes that some alternatives to incarceration, like 

house arrest and ankle bracelets, simply do not work on most reservations. For example, in remote areas of our Reservation law enforcement may have limited ability 

to receive a signal from an ankle bracelet because of a lack of Internet connections. 

And, even worse, no officer available to respond to that ankle bracelet signal if, for 

example, a domestic abuser decides to violate the terms of release. 

Section 107—Reauthorization for Tribal Courts Training 

The MHA Nation strongly supports the reauthorization of the Office of Justice 

Support to provide tribal governments and tribal justice systems with the resources 

and training needed. 

54 

Section 108—Amendments to the Indian Civil Rights Act 

The MHA Nation supports the amendments clarifying when a jury trial would be 

required, but notes generally that the requirements for jury trials amounts to unfunded federal mandate. Federal budgets for our court has never been increased to 

accommodate requirements of the Tribal Law and Order Act and the Violence 

Against Women Act. 

On a related issue, the MHA Nation opposes existing language in 25 U.S.C. 

1304(d)(3)(B) suggesting that tribal jury pools are not impartial unless non-Indians 

are included. Throughout the United States, jury pools are merely composed of the 

citizens of the jurisdiction whose laws were violated. This system and presumption 

of fairness should be afforded to tribal courts. Instead, the language of 25 U.S.C. 

1304 (d)(3)(B) suggests that the system for selecting tribal court juries is unfair. 

This presumption of unfairness undermines the tribal justice systems. To resolve 

this issue and promote tribal justice systems we ask that the phrase, ‘‘including 

non- Indians,’’ be deleted from 25 U.S.C. 1304 (d)(3)(B). 

Section 109—Public Defenders 

The MHA Nation supports the creation of tribal liaisons within Federal Public Defender’s districts and for the appointment of such tribal liaisons in consultation with 

the tribes in those districts. 

Section 110—Offenses in Indian Country: Trespass on Indian Land 

The MHA Nation supports the proposed amendment to 18 U.S.C. § 1165, but suggests that tribal courts will require additional assistance and training if this provision is ultimately adopted. In addition, given our limited number of law enforcement 

officers, we also need federal enforcement of tribal court exclusion orders. The MHA 

Nation needs to have individuals who threaten the peace and well-being of our community removed from our Reservation quickly and permanently. 

Section 111—Resources for Public Safety in Indian Communities; Drug Trafficking 

Prevention 

The MHA Nation strongly supports continuing the Shadow Wolves Division and 

applauds their efforts on behalf of their tribal nations and the United States of 

America. 

Section 112—Substance Abuse Prevention Tribal Action Plans 

The MHA Nation believes strongly that Indian tribes are in the best position to 

decide how best to deal with substance abuse in their communities. At the same 

time, tribes cannot run effective prevention programs when federal funding is limited and the programs that they flow through lack the flexibility to allow tribes to 

implement what we recognize to be effective strategies. 

Section 201—Federal Jurisdiction over Indian Juveniles. 

The MHA Nation feels strongly that juveniles should never be tried as adults, except in the most unique circumstances. 

Section 202—Reauthorization of Tribal Youth Programs 

The MHA Nation strongly supports the continuation of the summer youth program and encourages its expansion. 

We also strongly support the continuation and expansion of emergency shelter 

grants. All too often, we find juveniles in need of supervision, but we lack the resources to address that emergency on both a short and long term basis. These emergency shelter grants are important, but so is federal funding for the long-term placement of juveniles who, as repeat status offenders, need a supervised environment. 

If this assistance is not provided, the chances that these status offenders will end 

up before the criminal justice system increase exponentially. 

Section 203—Assistance for Indian Tribes Relating to Juvenile Crime 

While the MHA Nation was pleased to see that S. 1953 recommends increased 

federal coordination on juvenile crime, we must emphasis again, that technical assistance is not helpful if we lack the resources to implement those ideas. 

We are highly supportive of the bill’s new requirement for tribal notice when a 

tribal juvenile is taking in by off-reservation law enforcement and/or the off-reservation criminal justice systems. Many tribal juveniles end up in those places because 

of a breakdown in family support, or a lack of substance abuse or mental health 

services. If we know about these situations, we can help. 

The MHA Nation also supports the inclusion of tribal cultural and traditional 

practices in the juvenile justice system. Too often our traditional approaches are not 

55 

1Safeguard Tribal Objects of Patrimony Act, S. 1400, 155th Cong. (2017) 

2 H.R. Con. Res. 122, 114th Cong. (2016) (enacted). 

3 Id. at § 4. 

afforded the respect that they deserve, even though they have often shown themselves to be the most effective way of helping given individuals. 

Section 204—Coordinating Council on Juvenile Justice and Delinquency Prevention 

While the MHA Nation supports the continued operation of the Coordinating 

Council on Juvenile Justice, and the proposed inclusion of the Indian Health Service 

on this entity, we must point out that one of the reasons that Councils like this are 

not as effective as they could be, is because they fail to afford an appropriate role 

for tribal government. While we understand that this Coordinating Council is a federal entity, we must note that this Council could benefit greatly from the input of 

tribal leaders who live with these problems every day, and who see how and why 

federal programs are not as effective as they could be. 

Section 205—Grants for Delinquency Prevention Programs 

The MHA Nation supports the continuation and expansion of the juvenile delinquency grant program. 

Conclusion 

The MHA Nation strongly supports the efforts of Chairman Hoeven, Vice Chairman Udall, and Members of the Committee, in particular Senator Heitkamp, to introduce and consider bills that will support tribal law and order and justice systems. 

For too long the federal government has not fulfilled its law and order responsibilities on Indian lands. In this era supporting tribal sovereignty and self-determination, federal laws and programs need to be updated and supported so that Indian 

tribes can take the lead in providing law and order on our reservations. But, we 

cannot run these programs without adequate federal funding that matches the 

United States treaty and trust responsibilities to Indian tribes. 

As our Fort Berthold Indian Reservation and our entire region faces significant 

population increases from oil and gas development on our Reservation, the MHA 

Nation sees the most dramatic side of these law and order issues every day. Areas 

like ours need additional support from Congress and federal budgets. Our Reservation is not only rural and remote, it is also large and seeing crime levels comparable 

to some cities. Federal law and order programs and funding should be flexible to 

address these situations. 

Thank you for this opportunity to provide this testimony. The MHA Nation stands 

ready to assist the Committee in further consideration and passage of S. 1870, S. 

1942, and S. 1953. 

PREPARED STATEMENT OF THE 23RD NAVAJO NATION COUNCIL (NNC) 

On behalf of the 23rd Navajo Nation Council (NNC), I would like to thank the 

United States Senate Committee on Indian Affairs for the opportunity to present 

written testimony regarding the hearing on the Safeguard Tribal Objects of Patrimony Act (‘‘STOP Act’’) of 2017 1 as it relates to the Navajo Nation. Our history 

has been documented through historical items such as ceremonial items and paraphernalia, pottery and rugs, and land base. The importance of these ceremonial 

items is deemed invaluable and should be protected at all costs. 

We also extend our gratitude to Senator Martin Heinrich and the several sponsors 

who introduced the STOP Act, and we seek to voice our support regarding the importance of this act. It is not only vital for Navajo people, but indigenous nations 

across the United States. 

I. Introduction 

In December 2016, the United States Congress (‘‘Congress’’) passed House Concurrent Resolution 122, the Protection of the Right of Tribes to Stop the Export of Cultural and Traditional Patrimony Resolution 2 (‘‘PROTECT Patrimony Resolution’’) to 

condemn the theft, illegal possession or sale, transfer, and export of tribal cultural 

items 3 of American Indians, Alaska Natives, and Native Hawaiians in the United 

States and internationally. 

The PROTECT Patrimony Resolution compliments the United Nations Educational, Scientific and Cultural Organization Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of CulVerDate Mar 15 2010 12:55 May 24, 2018 Jkt 030106 PO 00000 Frm 00059 Fmt 6601 Sfmt 6621 S:\DOCS\30106.TXT JACK
56 

4 U.N. Educational, Scientific and Cultural Organization, Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 

Nov. 17, 1970, No. 11806, U.N.T.S. 1972. 5 Id. at art. 2(1). 6 H.R. Con. Res. 122, supra note 2, at § 4(4). 7 Resolution of the Naabik’φya ́ti’ Committee of the Navajo Nation Council, NABIJY–51–12 (07/ 

10/2012). 8See NAVAJO NATION CODE ANN. tit. 2, § 921 (stating that the Commission ‘‘is organized 

to operate as a clearinghouse entity to administratively address discriminatory actions against 

citizens of the Navajo Nation and to interface with the local state and federal governments and 

with national and international human rights organizations in accordance with its plan of operation and applicable laws and regulations of the Navajo Nation.’’) 9Letter from Ben Shelly, President, Navajo Nation, to Ambassador Keith Harper, U.N. 

Human Rights Council, Permanent Mission of the U.S.A (Aug. 13, 2014) (on file with the Navajo 

Nation Human Rights Commission) 10 Resolution of the Naabik’φya ́ti’ Committee of the Navajo Nation Council, NABIMY–31–15 

(05/28/2015). 

tural Property 4 (‘‘Convention’’) of 1970, which the United States Senate gave its 

unanimous advice and consent in 1972. 

The Convention Article 2(1) states, ‘‘[t]he States Parties to this Convention recognize that the illicit import, export and transfer of ownership of cultural property is 

one of the main causes of the impoverishment of the cultural heritage of the countries of origin of such property and that international co-operation constitutes one 

of the most efficient means of protecting each country’s cultural property against all 

the dangers resulting there from.’’ 5 The PROTECT Patrimony Resolution calls for 

the ‘‘development of explicit restrictions on the export of tribal cultural items,’’ 6

which the STOP Act would accomplish. 

First, this report provides a background on Navajo Nation’s experience and effort 

to protect sacred cultural items that appeared in Paris, France. Second, this report 

discusses the current United States laws intended to protect sacred cultural items 

from leaving the Navajo Nation. Finally, this report highlights the importance of the 

STOP Act that the NNC favors. 

II. Background 

The Navajo Nation’s stake in protecting sacred cultural items began in Spring 

2014 when the Navajo Nation Historic Preservation Department, the Sacred Sites 

Task Force as a Subcommittee of the Naabik’φya ́ti’ Committee, 7 the Navajo Nation 

Human Rights Commission, 8 and the Navajo Nation Office of the President and 

Vice-President became aware of thirty (30) confirmed Navajo Yeibichei masks that 

would be auctioned off on June 27, 2014 by the Eve Auction House in Paris, France. 

The Navajo Nation made every effort to prevent the auction of these thirty (30) 

confirmed Navajo Yeibechei masks, which are sacred items to the Navajo people, 

and have the sacred items returned to the Navajo Nation. The Navajo Nation met 

and spoke with the United States Department of State, United States Department 

of the Interior, United States Ambassador Keith Harper to the United Nations 

Human Rights Council, 9 United States Mission to the United Nations in New York, 

United States Mission of the United Nations and Other International Organizations 

in Geneva, and the Embassy of the United States in Paris on the importance of 

these sacred masks and their assistance to repatriate these sacred items without 

cost. 

All efforts made by the Navajo Nation to prevent the auction and return of these 

sacred masks by the auction house were unsuccessful. On June 27, 2014, all but 

seven (7) confirmed Navajo Yeibechei masks were auctioned off and the remaining 

sacred masks would later be scheduled to be auctioned on December 15, 2014. The 

Sacred Sites Task Force then directed the Office of Navajo Nation Human Rights 

Commission to travel to Paris to recover the remaining seven (7) sacred masks from 

the Eve Auction House. This included purchasing them directly before they go to 

auction or bid on them directly when the auction takes place if purchasing them 

was not possible. On December 15, 2014, the remaining seven (7) sacred masks were 

successfully bided on and returned to the Navajo Nation. 

In the of Fall 2015, the Eve Auction House owner reached out to the Office of 

Navajo Nation Human Rights Commission and communicated that he will be in possession of eighteen (18) Navajo Yeibichei masks, which will be scheduled for auction 

on December 7, 2015. The possession and auction of these Navajo Yeibichei masks 

was communicated to the Navajo Nation Historic Preservation Department, the Sacred Sites Task Force, 10 and Navajo Nation Office of the President and Vice-President. Through our efforts, we were able to work out an arrangement with Eve Auction House to not photograph, catalog, and publish the possession and auction of 

these sacred items as the Navajo Nation would be purchasing and repatriating them 

57 

11 54 U.S.C. § § 320301–320303 (1906), 18 U.S.C. § 1866 (2014). 12 16 U.S.C. § § 470aa–470mm (1979). 13 25 U.S.C. § § 3001–3013 (1990), 18 U.S.C. § 1170 (1994). 14S. 1400, supra note 2, at § 2(a). 15 E-mail from Gregory A. Smith, Attorney, Hobbs, Straus, Dean & Walker, LLP, to Rodney 

L. Tahe, Policy Analyst, Office of Navajo Nation Human Rights Commission (Sept. 26, 2017, 

08:25 MST) (on file with author). 16S. 1400, supra note 2, at § 4(a). 17 Id. at § 4(b). 18 Id. at § 4(c). 19 Id. at § 4(d)(2). 20 Id. at § 4(d)(1). 21 Id. at § 5(a). 22 Id. at § 5(b)(1). 23 Id. at § 5(b)(2). 24 Id. at § 5(b)(3). 

directly. As a result, the Navajo Nation stakes on protecting sacred cultural items 

for monetary gain nationally and internationally increased. 

III. Laws Intended To Protect Sacred Cultural Items 

The United States Government has already banned domestic trafficking on protected items of Native American tangible cultural heritage, including our ancestors 

and sacred cultural items. 

The Antiquities Act of 1906 makes it illegal to appropriate or injure objects of antiquity taken from federal land without proper permission. 11 The Archaeological Resources Protection Act (‘‘ARPA’’) of 1979 makes it a crime to traffic in archaeological 

resources removed from public or Indian lands without proper permitting. 12 The 

Native American Graves Protection and Repatriation Act (NAGPRA) of 1990 makes 

it illegal to traffic in Native American cultural items, including human remains, removed from federal or tribal land without proper permitting and tribal consent. 13

Currently, the existing federal laws, such as NAGPRA, does not go far enough to 

protect cultural sacred items. It is clear the penalties are not high enough and prosecutions not frequent enough to deter criminals. NAGPRA does not explicitly make 

exportation unlawful and those who currently possess protected cultural sacred 

items fear prosecution if they repatriate the objects. For this reason, many indigenous peoples have found their cultural objects trafficked through black markets and 

these objects are essential for the cultural survival of indigenous nations. 

IV. Importance of the Safeguard Tribal Objects of Patrimony Act 

With the introduction of the STOP Act, it would increase NAGPRA sentences and 

penalties from five to ten years and prohibit the exportation of cultural sacred items 

obtained in violations of NAGPRA, ARPA and the Antiquities Act. 14 However, the 

STOP Act does not expand categories of protected cultural heritage beyond cultural 

items, human remains, archaeological resources, and objects of antiquity as they are 

defined by and protected under current law. 15

The STOP Act establishes a federal framework to ‘‘encourage the voluntary return 

of tangible cultural heritage to Indian tribes and Native Hawaiian organizations.’’ 16

In addition, the STOP Act provides for liaisons in the Departments of the Interior 

and State to facilitate the voluntary return, 17 training and workshops, 18 and establishes a referral program within the Department of the Interior by creating a ‘‘list 

of representatives from each Indian tribe and Hawaiian organization’’ 19 to assist in 

the ‘‘voluntary return of tangible cultural heritage.’’ 20

Lastly, the STOP Act establishes ‘‘a tribal working group’’ 21 to advise the United 

States Government on the ‘‘return of tangible cultural heritage,’’ 22 ends the illegal 

trafficking of tribal cultural heritage, 23 and the return or repatriation of tribal cultural heritage. 24

V. Conclusion 

The 23rd Navajo Nation Council urges the United States Senate to pass the S. 

1400 to ensure protections for not only tangible cultural heritage, but the Navajo 

(Dine ́) Life Way. The illicit trade of Native American tangible cultural heritage 

poses a threat to cultural survival. Our sacred and cultural items are illegally being 

taken from our people, threatening the maintenance of our culture and tradition, 

and depriving us of the legacy we seek to leave for our future generations. Meanwhile, a lucrative market of our tangible cultural heritage thrives, and without explicit export restrictions many of our sacred and cultural items end up abroad. The 

Navajo Nation is committed to preserving its cultural heritage and implores the 

Federal Government to aid us in repatriating our sacred items. 

58 

1 NIHB is a 501(c) 3 not for profit, charitable organization providing health care advocacy 

services, facilitating Tribal budget consultation and providing timely information and other services to all Tribal Governments. Whether Tribes operate their own health care delivery systems 

through contracting and compacting or receive health care directly from the IHS, NIHB is their 

advocate. Because the NIHB serves all federally-recognized Tribes, it is important that the work 

of the NIHB reflect the unity and diversity of Tribal values and opinions in an accurate, fair, 

and culturally-sensitive manner. The NIHB is governed by a Board of Directors consisting of 

representatives elected by the Tribes in each of the twelve IHS Areas. Each Area Health Board 

elects a representative and an alternate to sit on the NIHB Board of Directors. 2 Indian Health Care Improvement Act, a103(2009). 3 In 2015, for example, funding per patient at IHS was just $3,107 at IHS compared to the national average of over $8,000. 4 ‘‘In Critical Condition: The Urgent Need To Reform The Indian Health Service’s Aberdeen 

Area—Report of Chairman Byron L. Dorgan.’’ Senate Committee on Indian Affairs. December 

28, 2010. 

We believe the STOP Act will help to end illegal trafficking of Native American 

tangible cultural heritage, and it will also bring home our sacred and cultural items 

that have been separated from our communities for far too long. 

PREPARED STATEMENT OF VINTON HAWLEY, CHAIRPERSON, NATIONAL INDIAN HEALTH

BOARD (NIHB) 

Introduction: 

Chairman Hoeven, Vice Chairman Udall and Members of the Committee, thank 

you for holding this important hearing on S. 465 ‘‘The Independent Outside Audit 

of the Indian Health Service Act of 2017.’’ On behalf of the National Indian Health 

Board (NIHB) 1 and the 567 federally recognized Tribal nations we serve, I submit 

this testimony for the record. 

The federal promise to provide for the health and welfare of Indian people was 

made long ago. Since the earliest days of the Republic, all branches of the Federal 

Government have acknowledged the nation’s obligations to the Tribes and the special trust relationship between the United States and Tribes. The United States assumed this responsibility through a series of treaties with Tribes, exchanging compensation and benefits for Tribal land and peace. The Snyder Act of 1921 (25 USC 

13) legislatively affirmed this trust responsibility. To facilitate upholding its responsibility, the federal government created the Indian Health Service (IHS) and tasked 

the agency with providing health services to American Indians and Alaska Natives 

(AI/ANs). Since its creation in 1955, IHS has worked to fulfill the federal promise 

to provide health care to Native people, but has routinely been plagued by underfunding and mismanagement. 

In passing the Affordable Care Act (ACA) (P.L. 111–148), Congress also reauthorized and made permanent the Indian Health Care Improvement Act (IHCIA). As 

part of the IHCIA, Congress reaffirmed the duty of the federal government to American Indians and Alaska Natives, declaring that ‘‘it is the policy of this Nation, in 

fulfillment of its special trust responsibilities and legal obligations to Indians—to 

ensure the highest possible health status for Indians and urban Indians and to provide all resources necessary to effect that policy.’’ 2

IHS Quality of Care Challenges 

But the promise made by the Federal Government and renewed by Congress over 

seven years ago has not been kept. Not only has funding for the agency always been 

woefully inadequate, 3 but as noted in the hearing on S. 465, and at countless other 

times before the Committee, health care provided at many IHS-operated facilities 

falls woefully short of safe, and effective care. Time and again, we learn of situations where a patient goes to their local IHS-service unit only to be misdiagnosed, 

not attended to and often cannot get the necessary referral to seek care elsewhere. 

Anywhere else in the country, this level of care would be completely unacceptable. 

However, in some places in Indian Country it is a fact of life. This must change. 

This low level of care at some IHS-operated facilities has been well documented 

by other federal agencies as well. Over 7 years ago, this committee issued a report 

citing widespread mismanagement of the Great Plains region. 4 The WinnebagoOmaha Indian Hospital has not been able to bill the Centers for Medicare and Medicaid Services (CMS) since July 2015 due to deficiencies found there. The Rosebud 

Indian Hospital and Pine Ridge Indian Hospital have also been under investigation 

by CMS for failing to meet the conditions of participation by the agency. 

NIHB commends the Senate Committee on Indian Affairs for the attention that 

it has given to improving the quality of care delivered at IHS facilities. The Committee has held numerous hearings on the topic and elevated these critical issues. 

59 

5See: ‘‘The Indian Health Service: Actions Needed to Improve Oversight of Quality of Care.’’ 

Government Accountability Office. GAO–17–181. January 2017. 

Legislation has been introduced in two consecutive Congresses to improve the situation at IHS, but has not been enacted into law. Yet, patients continue to suffer. As 

recently as November 3, 2017, the Pine Ridge Indian Hospital was given notice that 

it would no longer be able to bill CMS for failing to meet conditions of participation. 

This is simply inexplicable given that the agency has been addressing challenges 

with CMS at this facility since at least 2015. Clearly, more must be done to improve 

the care at IHS-operated facilities. 

Tribes have continuingly expressed frustration at not being able to ascertain funding information for the agency, especially when direct service Tribes are interested 

in taking over operations. Without question, the IHS has much to account for when 

it comes to the health facilities that they operate directly. 

Recommendations on S. 465 

Given all these concerns, and the failure of IHS to improve the delivery of health 

services in some areas, it is not surprising that legislation has been introduced to 

provide more information about IHS and the agency’s operations. However, NIHB 

and Tribes have a few concerns about the legislation that are detailed below. As 

Senator Udall noted at the hearing, Congress should use its current oversight authority to compel IHS (and the Department of Health and Human Services (HHS), 

when necessary) to provide the information currently outlined in this legislation. 

For example, information on the IHS patient population; Information Technology 

Strategies of the IHS; and process of the Service for carrying out construction and 

maintenance projects at medical facilities should all be readily available for IHS to 

provide. 

The legislation, as amended, requires the HHS office of the Inspector General 

(OIG) to complete the assessment, but only allows 180 days to complete the study. 

Acceding to OIG’s 2017 work plan they already have plans to investigate IHS in 5 

separate areas including management and hospital operations. Congress should 

fully evaluate the findings of those investigations before investing a significant 

amount of time and resources into an assessment of this nature. Furthermore, 180 

days is not a sufficient time to complete the study given the wide breath of information required. If OIG cannot complete the study in this time, it will be sent out to 

a private entity. The bill does not require the entity to have familiarity with the 

Indian health system. This is troubling because the Indian health system, is like 

no other health delivery system in the United States. Any assessor should be able 

to understand the unique historical background as well as the cultural aspects of 

working within Indian Country to ensure the most informed, objective report is produced. 

Additionally, different operational divisions and agencies within HHS should 

share responsibility for helping to improve the quality of care in the IHS system. 

The Committee should compel the HHS to work with IHS to make improvements 

in the quality of care of IHS. Other federal agencies are well experienced in the delivery of quality health care services and should be tasked with engagement of the 

IHS to improve some of the challenges at IHS-operated facilities. For example, the 

Health Resources and Services Administration has significant expertise in health 

professional staffing in underserved areas, and could provide a valuable resource for 

IHS. While we understand that these agencies currently collaborate somewhat, it 

is critical all expertise is leveraged to the maximum extent possible. NIHB requests 

that the Committee use its current oversight authority to ensure better coordination 

between HHS agencies and the IHS. 

NIHB also has heard from Tribes that the information asked for in this legislation 

is so comprehensive that it could consume an already overtaxed agency to answer 

the questions required by this assessment. While IHS itself would not be performing 

the assessment, and IHS resources would not be used to directly pay for the study, 

it would require significant time of IHS staff to answer the information required. 

In an agency where staffing of senior management is a well-documented challenge, 5

NIHB and Tribes remain concerned that an assessment of this nature would place 

severe strain on the agency, possibly at the expense of patient care. Instead, S. 465 

should include language that would specifically state that IHS staff or funds would 

not be able to be reassigned to answer questions of the investigation at the expense 

of other operational duties. 

In Section 2, paragraph (d)(2) we recommend adding ‘‘public health and environmental health services.’’ Tribal communities continue to experience underdeveloped 

public health systems due to a lack of federal investment in public health infrastructure for Indian Country. This lack of public health services is a contributing reason 

60 

to the severe health disparities for AI/ANs. Therefore, we believe it is warranted 

that any investigation that includes access to medical services should explicitly look 

at public health as well. 

In Section 2, paragraph (d)(4) the bill requires assessment into appropriate system wide access standard applicable to hospital care, medical services, and other 

health care furnished by and through the Service. This aspect should require the 

assessor to take into account geographic inconsistences across the agency including 

access to medical staff, health facilities, and existing health disparities. All 12 areas 

of IHS are different, so while it is important to maintain a standard across the 

agency, the assessment should also consider how to account for this variation across 

the system. 

Self-Governance Impact 

Tribes welcome the changes to this legislation that would limit investigations to 

the IHS-operated facilities. Over 60 percent of the Indian health service appropriated budget is delivered directly to Tribes and Tribal organizations through contracts and compacts as authorized by the Indian Self Determination Education and 

Assistance Act (P.L. 93–638). Though the assessment called for in S. 465 would not 

directly impact those self-governance Tribes, the impacts could have great consequences on self-governance. For example, in Section 2, paragraph (d)(13) S. 465 

requires the assessor to look into the lack of funding formula at IHS. These findings 

would undoubtedly impact all Indian health facilities throughout the country, including those operated by Tribes. A conversation of this nature should only occur 

with the full consultation and participation of Indian Country. Instead, NIHB recommends that the legislation be amended to include Tribal consultation on this and 

other aspects of the report. 

The bill does not prescribe how the report that is produced will be used to improve current IHS practices, but does say the document will be available publicly. 

This, paired with the lack of Tribal consultation in the legislation, gives Tribes little 

opportunity to weigh in on how the report will be used or the potential harmful effects it could have on the Indian health system. We believe that the recommendations should be discussed in full collaboration with the Tribes on this legislation. 

Time and time again, Tribes in the Great Plains Area have noted the failure of IHS 

to come to engage them in consultation or important decisionmaking regarding the 

operation of the health facilities on their reservations. This will only compound this 

problem, and result in little change from IHS. 

Conclusion and Policy Recommendations 

NIHB welcomes the efforts of the Senate Committee on Indian Affairs to provide 

oversight the IHS-operated facilities. For too long, our people have suffered at the 

hands of mismanagement, negligence and underfunding. However, we continue to 

express reservations about S. 465 due to the resources it would take away from current IHS operations and lack of Tribal involvement outlined in the legislation. 

Again, we sincerely appreciate the work of the Committee to improve the delivery 

of health services at IHS-operated facilities, but caution on engaging in this assessment without further input and consideration by the Tribes. 

We look forward to working with you on these and other proposals as we work 

towards our joint goal of improving the health of American Indians and Alaska Natives. 

PREPARED STATEMENT OF HON. TROY SCOTT WESTON, PRESIDENT, OGLALA SIOUX

TRIBE

Thank you for this opportunity to provide testimony on behalf of the Oglala Sioux 

Tribe in support of S. 465, the Independent Outside Audit of the Indian Health 

Service Act of 2017. We also thank Senator Rounds for introducing the legislation, 

an important step towards increasing transparency at the Indian Health Service 

(IHS) and understanding its failures in providing effective and efficient care for our 

people. We support S. 465 but think it should focus on the Great Plains Area. 

The Oglala Sioux Tribe is a sovereign nation and part of the Great Sioux Nation. 

In addition to the general trust responsibility to provide for Indian health care, the 

United States has a specific treaty obligation to provide health care to the Oglala 

Sioux people. The Sioux Treaty of 1868, known as the Fort Laramie Treaty, includes 

terms through which the United States promised to provide certain benefits and annuities to the Sioux Bands each year, including health care services, in exchange 

for the right to occupy vast areas of Sioux territory. Our Treaty remains in full force 

and effect, but the United States has not fulfilled its obligation to provide health 

care services, along with other benefits. 

61 

1 Joel Achenbach, ‘‘U.S. Life Expectancy Varies by More Than 20 Years From County to County,’’ Washington Post (May 8, 2017); Laura Dwyer-Lindgren, et al. ‘‘Inequalities in Life Expectancy Among US Counties, 1980 to 2014: Temporal Trends and Key Drivers,’’ JAMA Intern. Med. 

(May 8, 2017). 2 In Critical Condition: The Urgent Need to Reform the Indian Health Service’s Aberdeen 

Area, Report of Chairman Byron L. Dorgan to the Committee on Indian Affairs, 111th Cong. 

(Dec. 28, 2010) (‘‘2010 Report’’). 

We are the largest tribe of the Great Sioux Nation, with more than 47,000 tribal 

citizens. Our Reservation, the Pine Ridge Reservation, spans more than 2.8 million 

acres, making it larger than the States of Delaware and Rhode Island combined. According to the U.S. Census Bureau, Oglala Lakota County on the western side of 

our Pine Ridge Reservation is the third poorest county in the United States. The 

unemployment rate on our Reservation is well over 70 percent and our high school 

dropout rate exceeds 60 percent. These statistics directly impact the health of our 

tribal members who have among the worst health indicators, access to care, and 

quality of care in the United States. For example, the average life expectancy on 

the Pine Ridge Indian Reservation is only 50 years, significantly lower than that 

of non-Indian Americans and among the lowest in the country. 1

The state of Indian health care in the Great Plains Area, and specifically in our 

Reservation IHS facilities, is one of the greatest challenges facing our Reservation 

community. It is also an issue requiring federal attention and action on behalf of 

the United States. Accordingly, it is our position that the obligation of the federal 

government to provide adequate health care services to the Oglala Sioux people, 

who are some of the poorest and most disenfranchised in this Nation, is not only 

a moral responsibility, but a legal one. IHS is to provide adequate health care services to Native communities but it has not lived up to its mandate. The agency is 

currently operating in an unsatisfactory—even dangerous—manner and continually 

fails to meet basic federal standards for competency and quality of care. 

This failure is alarmingly apparent on our Reservation and at the Pine Ridge Hospital where we a facing a crisis of care. On November 3, 2017, the Pine Ridge Hospital received a Termination Notice from the Centers for Medicare and Medicaid 

Services (CMS). CMS is terminating the Pine Ridge Hospital’s provider agreement, 

effective November 18, 2017, based on the Hospital’s failure to attain compliance 

with CMS Conditions of Participation (CoP) requirements for Emergency Services. 

CMS found that the Hospital’s deficiencies limit its capacity to provide services at 

an adequate level and quality. CMS’s termination of the Hospital’s provider agreement terminates the Hospital’s ability to provide Medicaid/Medicare services and 

bill for the same. 

The IHS’s failure to comply with the CMS CoP requirements is unacceptable. It 

is especially egregious given that this Termination Notice comes after a long string 

of CMS cited deficiencies at the Pine Ridge Hospital. IHS has a long history of inadequate quality of care at the Pine Ridge Hospital, set forth in detail in recent times 

in the 2010 Dorgan Report. 2 This latest CMS cited deficiency is particularly deplorable as CMS’s onsite survey of the Hospital was part of IHS’s effort to satisfy CMS’s 

cited deficiencies from November and December 2015 and its effort to get out from 

under the Systems Improvement Agreement (SIA) it entered into in April 2016. IHS 

executed the SIA specifically to ensure compliance with the CoPs and facilitate the 

delivery of quality health care services at the Pine Ridge Hospital. 

To say our Tribe is disappointed with the IHS is an understatement, but we are 

also severely frustrated and deeply concerned about the impacts the termination of 

the Hospital’s provider agreement will have on the IHS’s delivery of health care 

services to our people. The loss of Medicare/Medicaid reimbursements will have significant financial consequences for the Pine Ridge Hospital. Medicaid is critical to 

the Indian health system. In 1976, Congress authorized the IHS to bill Medicaid in 

an effort to provide badly needed resources to the chronically underfunded IHS. We 

have heard the IHS previously state that approximately 52 percent of our Pine 

Ridge Hospital’s budget is from third party billing to Medicare and Medicaid. Regardless of that exact figure, the IHS undoubtedly needs Medicare/Medicaid funds 

to operate the Hospital, which already operates on a woefully underfunded budget. 

The Hospital simply cannot operate on its base budget alone, let alone address the 

alarming health care disparities on our Reservation. 

We are thankful that Congress recently appropriated $29 million to the Great 

Plains Area in emergency funds for IHS to use in addressing compliance with CMS 

standards. However, as Elizabeth Fowler, Deputy Director for Management Operations of the IHS, testified, our Hospital will still lose its certification and although 

IHS is considering next steps, she was unable to identify exactly what those were. 

Ms. Fowler agreed to provide the Committee a briefing paper on next steps. We look 

62 

3 25 U.S.C. § 1641(c)(1)(B). 

forward to this information. In light of the longstanding and pervasive nature of 

IHS’s substandard quality of health care in the Great Plains Area, we remain wary 

of a temporary fix and request that the IHS implement a root and branch approach 

to achieve lasting reform. A part of this root and branch approach must be transparency in how IHS is spending its funds. 

The current crisis at our Hospital stems, in part, from ongoing problems: a staffing shortage, high turnover and an unqualified staff. Filling the copious vacancies 

at our Hospital is essential to help keep it open and improve its quality of care not 

only to satisfy CMS’s CoP requirements but also to ensure that our members receive 

the health care they need and deserve. The position vacancy rates at our facilities 

are unacceptable. IHS is limited in its ability to attract qualified staff because it 

cannot compete with the private sector. To be on a level playing field with the private sector, IHS needs more funds and the flexibility to provide additional resources 

in compensation packages. In addition to an inability to attract staff, IHS cannot 

retain those it does hire. It is common for health care providers to only stay long 

enough to satisfy their temporary contract. Once their contract is up, they move on. 

The Tribe has continually expressed concern with IHS’s inability to recruit, hire, 

and retain skilled medical staff. 

In addition to qualified medical staff, we need trained, expert hospital administrators and administrative staff. Administrators must prioritize recruitment and a stable, well-managed work environment. Further, the administrative staff should be 

trained and proficient in third party billing to enable aggressive pursuit of third 

party collections, so no available health care funding is left on the table. This assumes our Hospital will be recertified by CMS, a necessary step for us. Limited 

funding for medical facilities and basic and necessary equipment is, of course, another challenge in recruitment and retention because these inadequacies make the 

staff’s jobs much harder. 

Third party resources are an increasingly important component of IHS funding. 

The Oglala Sioux Tribe would like to be assured that these resources have been effectively managed or used by the IHS to improve patient care. Under federal law, 

third party collections are primarily to be used ‘‘to achieve or maintain compliance 

with applicable conditions and requirements’’ of the Medicaid and Medicare programs. If there are amounts collected in excess of what is needed for this purpose, 

such collections shall be used ‘‘subject to consultation with the Indian tribes being 

served by the service unit. . , , for reducing the health resource deficiencies (as determined in section 1621(c) of this title) of such Indian tribes.’’ 3 An audit of IHS 

should reveal whether third party collections have been and are being used for 

maintaining compliance or for reducing health resource deficiencies. 

We have asked for congressional action regarding the IHS’s unacceptable operations because Congress should act to ensure the proper provision of health care by 

the IHS to Indian tribes and fair access to Medicare and Medicaid by our people. 

S. 465 takes important steps towards determining how the IHS is using Indian 

health care funding. We support this legislation. Again, we believe the legislation 

should focus on the Great Plains Area. We do not want IHS resources expended in 

other Areas for audit purposes if those Areas are functioning properly and with 

transparency, and do not affect how the Great Plains Area operates. We also believe 

Congress could do more. Hence, we support the recommendations offered by David 

Flute, Chairman of the Sisseton-Wahpeton Sioux Tribe, to improve and strengthen 

S. 465. Indeed, efforts to improve transparency, accountability, and meaningful partnership and consultation with IHS should begin with S. 465. Thus, we support an 

amendment to S. 465 that would require the Department of Health and Human 

Services Office of Inspector General to meaningfully consult and collaborate with 

Tribes concerning the formulation of the study, findings of the report and the submission to Congress. 

The chronic underfunding of the IHS and the neglect of treaty obligations over 

the years has and continues to take an enormous toll on our members’ health and 

well-being. The IHS Great Plains Area has struggled for too long with lack of resources, poor administration, and the inability to retain qualified medical staff to 

serve at its service units. This all leads to substandard quality of care for our people. All we want is quality health care for our people. Certainly, this should not be 

an unachievable goal in the United States of America, especially when the United 

States of America bears treaty and trust responsibilities to us. 

Thank you for your attention to this most important matter. 

63 

1The Committee for Cultural Policy, POB 4881, Santa Fe, NM 87502. 

www.committeeforculturalpolicy.org, info@committeeforculturalpolicy.org. 2 H.R.3211, 115th Cong. § 3(5) (2017). 

PREPARED STATEMENT OF KATE FITZ GIBBON, EXECUTIVE DIRECTOR, COMMITTEE FOR

CULTURAL POLICY 1

Mr. Chairman, my name is Kate Fitz Gibbon and I am the Executive Director of 

the Committee for Cultural Policy, a non-profit organization dedicated to educating 

the American public and urging an open discourse as the foundation of a balanced 

cultural policy in the US. The Committee for Cultural Policy supports museums and 

the museum mission to preserve, research, and display art and artifacts for the public benefit. We support the lawful circulation of art and artifacts, as Congress did 

in enacting the 1983 Convention of Cultural Property Act and the 1979 Archaeological Resources Protection Act (ARPA). 

The Committee for Cultural Policy (CCP) has identified a number of key concerns 

with the STOP Act: 

• The STOP Act will discourage collecting and trade of lawfully owned Native 

American objects, undermine cultural tourism, which is an economic mainstay 

of several Western states, and create legal uncertainties for the hundreds of 

thousands of Americans who have collected Native American art and artifacts 

for generations. 

• The STOP Act fails to define the difference between ceremonial and nonceremonial objects, and it leaves the definition of ‘‘Native American cultural objects’’ subject to export prohibitions open to new tribal interpretation for each 

Native American object seeking export. The knowledge of what is communally 

owned and inalienable is privileged information, and may be known only to initiates within each tribe. 

• The Stop Act would violate the individual right to due process under the Fifth 

Amendment by making it illegal to export certain items without giving the individual proper notice of what items are illegal to export. 

• The STOP Act is unnecessary because ‘trafficking’’ in violation of NAGPRA or 

ARPA is already unlawful, and 18 U.S.C. § 554 already prohibits export from 

the United States of any object contrary to any law or regulation of the United 

States, and imposes ten years’ jail time for a first offense. 

• The STOP Act establishes as official U.S. government policy the return of all 

‘‘items affiliated with a Native American Culture’’ to the tribes, which would include millions of objects currently in lawful circulation in the U.S., and millions 

more in American museums. 

We have highlighted the following issues in the STOP Act that are of particular 

interest to American museums and the collectors that support them. 

1. The STOP Act makes it federal policy to encourage the return of all Native American-affiliated objects to tribes. This could damage cultural 

tourism, particularly in the West, eliminate a major form of art collecting and art appreciation, and destroy hobbyist activities that are 

legal, educational and give pleasure to hundreds of thousands of Americans 

The STOP Act’s federal returns program is based on a new and dangerous federal 

policy to encourage the return of all Native American-affiliated items to tribes, even 

when ownership and trade in such objects is perfectly legal. STOP Act fails to address what the repercussions will be for ‘‘collectors, dealers, and other individuals 

and non-Federal organizations that hold such heritage’’ who do not to engage in the 

returns program and attempt to sell or donate these legally-owned objects to a museum or other organization. 

The ‘‘tangible cultural heritage’’ protected by the STOP Act’s returns policy extends beyond any individual’s reasonable expectations because this policy seeks to 

curb the trade of any ‘‘culturally, historically, or archaeologically significant objects, 

resources, patrimony, or other items that are affiliated with a Native American culture,’’ 2 regardless of an object’s legal title, cultural significance, economic value, or 

even the tribes’ desire to have the object returned. Is the STOP Act truly seeking 

to have every miniscule potsherd and arrowhead returned to Native American 

tribes? Every Native American ceramic pot, rug or bracelet? 

To give just one example of the type of legal material affected by this provision 

of the STOP Act, the prohibition against trafficking in archeological resources in 

ARPA specifically excludes arrowheads found on the surface of the ground. PresiVerDate Mar 15 2010 12:55 May 24, 2018 Jkt 030106 PO 00000 Frm 00067 Fmt 6601 Sfmt 6621 S:\DOCS\30106.TXT JACK
64 

3Lingle v. Chevron USA Inc., 544 U.S. 528, 538 (2005). 4Lingle v. Chevron USA Inc., 544 U.S. 528, 538 (2005) (citing Lucas v. South Carolina Coastal 

Council, 505 U.S. 1003, 1019 (1992) 5Penn Central Transp. Co. v. New York City, 438, U.S. 104, 124 (1978); 6Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539–40 (2005) (citing Penn Central Transp. Co. 

v. New York City, 438, U.S. 104 (1978); Loretto v. Teleprompter Manhattan CATV Corp., 458 

U.S. 419 (1982); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)). 7See e.g., Good v. United States, 189 F.3d 1355 (Fed. Cir. 1999), cert. denied, 529 U.S. 1053 

(2000). 8Penn Central Transp. Co. v. New York City, 438, U.S. 104, 129 (1978). 9 H.R. 3211, 115th Cong. § 5, (2017). 

dent Jimmy Carter was just one of thousands of American hobbyists who have collected arrowheads legally since they were children. There are now hundreds of 

hobbyist groups of arrowhead collectors, with hundreds of thousands of members, 

who like President Carter, are enthusiastic collectors of arrowheads. These clubs 

may be found in every state in the U.S. 

The adverse effects of the STOP Act’s ‘‘voluntary’’ returns program and Tribal 

Working Group will affect not only private dealers and collectors, and private individuals, but also the Native American artisans who rely on the sale of their 

artworks to support their livelihood. Is that truly the outcome that the STOP Act 

seeks to achieve? 

2. The creation of a federal policy that encourages the return of all Native 

American-affiliated objects to tribes could deprive legally owned objects of their fair market value, amounting to a regulatory taking 

The STOP Act’s adoption of a federalized return policy applying to all Native 

American affiliated objects policy will likely result in an insidious regulatory taking 

by destroying the value of American private property and threatening the collections 

of America’s citizens, museums and cultural institutions, as well as the viability of 

many businesses and Native American artisans. 

Supreme Court precedent recognizes two forms of takings for Fifth Amendment 

purposes: First, where the government requires permanent physical invasion of individual’s private property, however minor, there must be just compensation. 3 Second, 

and more relevant to the STOP Act’s dangerous effects, is where regulations completely deprive an owner of ‘‘all economically beneficial us[e]’’ of his or her property. 4

In the seminal case on government takings, Penn Central Transp. Co. v. New York 

City, the Supreme Court outlined three main factors to determine whether there has 

been a taking within the scope of the Fifth Amendment: (1) the economic impact 

of the regulation on the claimant; (2) the extent to which the regulation interferes 

with investment-backed expectations and (3) the character of the government action. 5 Later, in Lingle v. Chevron, the Court applied the Penn Central and other 

‘takings’ jurisprudence to conclude that any taking inquiry ‘‘turns in large 

part. . . upon the magnitude of the regulation’s economic impact and the degree to 

which it interferes with legitimate property interests.’’ 6

There is no disputing that individuals, ranging from private collectors to tribal artisans have legitimate private property interests in these objects. No regulations at 

the time of acquisition of this property would put the individual on actual or constructive notice that these objects would be subject to such broad oversight. 7 Thus, 

their investment-backed expectations would reasonably include the rights to buy, 

sell, and possess the item so long as the object was not illegally acquired in contravention of state or federal law, such as ARPA and NAGPRA. These are some of 

the most fundamental ‘‘sticks’’ that form legitimate property interests under United 

States law. 

The impact on the economic value of these objects is both predictable and deleterious. The proposed federal voluntary returns policy fails to address what the repercussions will be for the individuals who do not to engage in the voluntary returns 

program and attempt to sell their property or even donate it to a museum or other 

organization. Instead, this policy creates a stigma on objects and individuals who 

do not comply with this ‘‘voluntary’’ returns program—a stigma that can completely 

diminish the market value of that object, denying the property owner of the right 

to earn a ‘‘reasonable return’’ on his or her property. 8

The STOP Act’s institution of a Tribal Working Group to provide recommendations regarding ‘‘the return on tangible cultural heritage by collectors, dealers, and 

other individuals and non-Federal organizations’’ 9 is further problematic. The Act 

creates an oversight group that is not limited to recommending the return of illegally removed or trafficked objects in violation of federal law. Rather, the Act delegates to this Tribal Working Group the right and responsibility to recommend the 

65 

10 ATADA Bylaws, Article X, Trade Practices, Ethics, And Guarantees. https:// 

www.atada.org/bylawspolicies/ 11 ATADA Bylaws, Article XI, Due Diligence Guidelines. https://www.atada.org/bylawspolicies/ 12 ATADA Symposium, Understanding Cultural Property: A Path to Healing Through Communication. May 22, 2017, Santa Fe, NM. 13 ATADA Bylaws, Article X, ATADA Guidelines Regarding the Trade in Sacred Communal 

Items of Cultural Patrimony. https://www.atada.org/bylaws-policies/ 14 16 U.S.C. § 470aa(b). 

return of any and all legally owned objects, regardless of whether those objects were 

part of the voluntary returns program. Collectors, museums, dealers, hobbyist 

groups, etc. have no voice. 

How else will this Tribal Working Group find out about objects owned by collectors, dealers, and other private individuals, except by closely supervising the trade 

of Native American-affiliated items? Not only is this an exceptionally overbroad delegation of power, it will also contribute to a stagnation in the trade of Native American objects, as individuals will no longer be able to trade in these objects without 

constant fear that the Tribal Working Group may intercede and recommend the object be returned. 

With such power granted to this Tribal Working Group, Native American-affiliated objects will likely become unsellable, as individuals and institutions will likely 

refuse to purchase or accept these objects because of the stigma now attached to 

these otherwise lawfully-owned objects. Such an adverse economic impact would 

eventually amount to a regulatory taking because the policy will deprive numerous 

collectors, dealers, and individuals of the fair market value of their property without 

any just compensation. 

3. The STOP Act’s Returns Program’s Policy Also Contradicts ARPA’s Intention That Private Collections Remain a Resource for Preservation and 

Study of Native American Culture 

While the intentions of the STOP Act’s voluntary returns program are understandable—even admirable—the policy directly contravenes the very policies of 

ARPA and NAGPRA, which undergird the STOP Act itself. This policy acknowledges that American tribes do not have a superior right to all Native American-affiliated objects, simply because these are Native American in origin. Our country 

has had a long history of protecting private property rights. Native American art 

and artifacts collected by American citizens have long been interpreted as private 

property, and our constitution requires that certain due process requirements be 

met before they are taken away. 

Art traders and the collecting community have been accused in the media of exploiting Indian culture, especially in light of the 2015 auction sales in Paris of sacred masks and statues belonging to the Native American Hopi tribe. The major Native American art trade organization ATADA has adopted bylaws forbidding trade 

in items in current ceremonial use, 10 established due diligence guidelines to protect 

buyers and sellers, 11 and initiated public education programs 12 as well as a truly 

voluntary returns program that has brought dozens of important ceremonial items 

back to tribes in the last year. 13

But it should be remembered that the vast majority of the trade in Indian artifacts—virtually all the trade in current market—is completely legal, and that Congress deliberately excluded pre-existing privately held collections of artifacts from 

ARPA’s prohibitions on trafficking, in part because they formed a valuable resource 

for academic study. ARPA’s Findings and Purpose states: 

’’The purpose of this chapter is to secure, for the present and future benefit of 

the American people, the protection of archaeological resources and sites which 

are on public lands and Indian lands, and to foster increased cooperation and 

exchange of information between governmental authorities, the professional archaeological community, and private individuals having collections of archaeological resources and data which were obtained before October 31, 1979.’’ 14

ARPA’s legislative history reinforces this policy: 

’’The Committee is concerned that greater efforts must be undertaken by the 

Secretary and professional archaeologists to involve to the fullest extent possible non-professional individuals with existing collections or with an interest 

in archaeology. The potential benefit of this increased cooperation is enormous; 

66 

15 H.R. REP. 96–311, *12,1979 US.CC.A.N. 1709, **1714 16 16 U.S.C. § 470ee(f). 

there is a wealth of archaeological information in the hands of private individuals that could greatly expand the archaeological data base on this country.’’ 15

Only objects excavated subsequent to 1979 or unlawfully possessed prior to 1979 

are impacted by ARPA. Congress expressly intended private collections to serve as 

open resources: 

’’Nothing in subsection (b)(1) of this section shall be deemed applicable to any 

person with respect to an archaeological resource which was in the lawful possession of such person prior to October 31,1979.’’ 16

As applied in Section 4(a) of the STOP Act, the implementation of a voluntary 

returns program of all Native American-affiliated objects supports a blanket federal 

policy to completely end the trade, collection, preservation in institutions, museum 

holdings and any other form of possession of Native American art of all kinds by 

US citizens. 

4. STOP Is Unprecedented and Untested Legislation as an ‘‘Export Law.’’ It is 

Radically Different from All Other Export Laws and Cultural Property Laws Around 

the World. 

Typically, export laws in developing nations prohibit export of all cultural property, which includes everything from paintings to postage stamps over 50–100 years 

old. This is often the case where a nation has a history of colonial exploitation and 

also, very importantly, where the local economy is too weak to retain important art 

or manage resources. The US is by far the largest market in the world for Native 

American art. Laws in some totalitarian nations prohibit all export as a means of 

centralizing and controlling movement of property and sometimes as a means of limiting free expression of ideas. So, for example, books and historical documents are 

considered cultural property under these laws. 

Laws in some developed nations (such as Great Britain or Canada) require a permit for export of items over a certain age and value. Permits are almost always 

granted, and when they are not granted, the law provides for systems (government 

grants, special purchases) to acquire the art for the nation at Fair Market Value. 

To be subject to export review, objects considered ‘ethnographic material’ must have 

a fair market value of $3,000 if made by an ‘‘Aboriginal person.’’ 

In the UK, an exporter is required to obtain a permit in order to export artworks 

and historic objects meeting criteria based on Fair Market Value, archaeological status or origin. The Arts Council’s Committee on the Export of Works of Art and Objects of Cultural Interest (RCEWA) advises the government on whether to retain an 

artwork or grant an export license. Permission to send the item out of the UK may 

be refused in order to allow time for repurchase of the artwork by a UK museum 

or charitable fund. Repurchases are usually supplemented by public donations. 

Laws in other developed nations regulate export of all art in a national inventory, 

based on a specific list of identified objects that are restricted from permanent or 

temporary export. Each object subject to export restriction is individually cataloged. 

This is the case in Japan, where cultural property of different degrees of importance 

is documented and classified into categories from freely exportable to lawful for temporary export for exhibition purposes (just over 10,000 items in the entire history 

of Japanese art), to unlawful to export under any circumstances (about 1400 individual items, many in the Imperial collections). 

Industrial nations also prohibit trade in very specific non-art commodities, either 

to protect industry or limit access to technology, for example nuclear or weapons 

technology. 

STOP does not fit into any of these categories of existing laws. It’s not based on 

value, not on a list of objects, or defined types of items that cannot be exported. 

That means that there are no similar models, in the US or internationally, that we 

can look to and compare how other laws have worked in the past. That no such system has ever been tried in any other country should discourage the broad imposition 

of highly restrictive policies affecting virtually all Native American art. 

5. Conclusion 

The Committee for Cultural Policy urges that the Senate Indian Affairs Committee seriously consider alternatives to the STOP Act to find a cure for the serious 

concerns of the tribes. The answer cannot be found in the flawed legislation of the 

STOP Act. Instead, this Committee should consider as alternatives: 

• legislation to more efficiently bring objects and ancestral remains already 

under federal government control back to the tribes, to ensure adequate funding 

67 

for National NAGPRA, to fund tribal cultural offices, and to develop tribal legislation to ensure that important cultural resources remain permanently in tribal 

hands; 

• educating the public on tribal values; 

• facilitating truly voluntary returns of important cultural objects; 

• building tribal government capacities and cultural heritage institutions, and 

creating tribal organization(s) to accept voluntary donations. 

I would like to thank the Senate Indian Affairs Committee for the opportunity to 

present testimony. The Committee for Cultural Policy respectfully requests the Senate Indian Affairs Committee to carefully consider all the concerns raised regarding 

this legislation and to reject the STOP Act as written. 

PREPARED STATEMENT OF THE SOCIETY FOR AMERICAN ARCHAEOLOGY (SAA) 

Dear Chairman Hoeven and Vice Chairman Udall, 

The Society for American Archaeology (SAA) appreciates this opportunity to provide testimony on S. 1400, the Safeguard Tribal Objects of Patrimony Act of 2017. 

This bill would enhance the United States’ ability to prevent the export of tribal objects of cultural patrimony acquired in violation of the Archaeological Resources Protection Act (ARPA) or the Native American Graves Protection and Repatriation Act 

(NAGPRA), and to help prevent the sale of such items that have already been removed from US territory. While we do have concerns with certain provisions, we are 

hopeful that these issues can be resolved in the weeks ahead. 

SAA is an international organization that, since its founding in 1934, has been 

dedicated to the research about and interpretation and protection of the archaeological heritage of the Americas. With more than 7,500 members, SAA represents 

professional archaeologists in colleges and universities, museums, government agencies, and the private sector. SAA has members in all 50 states and many nations 

around the world. 

The need for the legislation in halting overseas auctions 

The looting of Native American archaeological materials and objects of cultural 

patrimony from federal and tribal land is a longstanding and multi-faceted problem 

and was a primary reason for the enactment of such statutes as the Antiquities Act, 

ARPA, and NAGPRA. SAA has consistently worked to end such looting and trafficking both at home and abroad. We have long stood against the buying and selling 

of objects out of archaeological context. As noted in our Principles of Archaeological 

Ethics, commercialization ‘‘. . .is contributing to the destruction of the archaeological record on the American continents and around the world. The commercialization of archaeological objects—their use as commodities to be exploited for 

personal enjoyment or profit—results in the destruction of archaeological sites and 

of contextual information that is essential to understanding the archaeological 

record.’’ 

In recent years, numerous objects of great spiritual and cultural importance to 

Native American tribes have been put up for sale in European auction houses. SAA 

and other organizations, including the US government, have repeatedly asked foreign auction houses and governments to prevent these sales from going forward. For 

example, in Europe, there were highly publicized sales of objects affiliated with the 

Hopi and other Southwestern tribes in both 2012 and 2013. The sales went ahead, 

in spite of objections from tribal and preservation groups and the U.S. State Department. Foreign government officials asserted that the auctions could not be stopped 

because the US did not have a law specifically prohibiting the export of illegally procured Native American objects. 

Section 2 of S. 1400 would close this gap by explicitly barring and setting penalties for the knowing export of Native American cultural items that were obtained 

in violation of ARPA, NAGPRA, or the Antiquities Act. It would also increase the 

maximum term of imprisonment for repeated violations of NAGPRA from five years 

to ten. These are simple and straightforward remedies that will not only help deter 

the export of illicitly acquired materials, but also give our government the crucial 

legal footing it needs to halt future overseas auctions of such pieces. 

Voluntary return of items 

Many objects important to Native American tribes were taken illegally, both prior 

to and after the enactment of the federal laws, and in some cases against tribal law. 

These objects may still be located in the US, or they may be overseas. In the US, 

NAGPRA provides a valuable and effective method of repatriating certain types of 

68 

articles held by federally linked institutions to lineal descendants and culturally affiliated tribes. No such mechanism exists, however, for objects and materials still 

in the United States but not covered by NAGPRA. 

Sections 3 and 4 of S. 1400 attempt to address this matter by defining and establishing a mechanism of voluntary return of items of ‘‘tangible cultural heritage.’’ 

Under this language, it would become the official policy of the federal government 

for ‘‘collectors, dealers, and other individuals and non-Federal organizations’’ that 

hold such articles to return them—without threat of prosecution—to Indian tribes 

and Native Hawaiian organizations. 

We find that enactment of these provisions, as currently worded, would be highly 

problematic for the following reasons: 

Sec. 3(5)(B)’s current definition of Tangible Cultural Heritage will be interpreted 

to mean virtually anything of Native American origin, regardless of age or means 

of acquisition. This would pose dramatic practical problems in both interpretation 

and implementation. Every potsherd and arrowhead in archaeological collections 

can be considered ‘‘significant,’’ and thus subject to the Federal Government’s voluntary return policy. 

Coupled with the broad definition of ‘‘tangible cultural heritage’’ in Section 3, Section 4 says that all non-federal museums and research institutions should return 

all of their Native American collections, regardless of the provenance of the items, 

the means of acquisition, or of the ongoing relationships that such facilities have 

with tribes. Thousands of cultural, natural history, and art museums that hold substantial collections of Native American items and that use them both for research 

and educational exhibits would be subject to this voluntary return policy of the 

United States, even though the objects in their collections were acquired legally, and 

even though many of these museums have excellent relationships with tribes and 

hold items in trust for them. Under such circumstances, research into our shared 

past would come to a halt. 

It should also be stated that the Voluntary Return section of the bill is vague, 

convoluted and, in many ways, simply impractical. For example, the bill is not clear 

on how the referrals process would be effectuated from what consultation means 

under the bill, including how notice would be given to other tribes and Native Hawaiian organizations to the operation (selection, election, terms) of a new advisory 

working group. Moreover, the proposed bill provides no funding for a position at 

DOI to do the referrals, maintain the referral list, or make determinations of ‘‘likely’’ affiliation. It offers no funds for tribes to repatriate items or hire staff to handle 

the referrals, both of which can present a significant financial hardship. Additionally, it should also be stated that the ‘‘return’’ outcome envisioned in the bill would 

not be as straightforward as it might appear. For example, to which Apache or 

Cherokee or Yavapai tribe should an item known only as Apache, or Cherokee, or 

Yavapai go? Also, what about objects whose affiliation might be shared between 

tribes, or items that don’t have an associated modern tribe but are nonetheless Native American? 

Furthermore, NAGPRA provides an established process for the repatriation of cultural items (human remains, sacred objects, funerary objects, and cultural patrimony) that are under the control of museums and universities that receive federal 

funds. We believe that cultural items, as defined by NAGPRA (including human remains), will cover the items at issue. As written, S.1400 provides a parallel process 

for the return of these same items from these same institutions, adding a legal conflict and leading to confusion without providing any additional protection or benefit 

with respect to these remains and items. 

However, we appreciate the intent of Sections 3 and 4, and see the need for some 

kind of voluntary method for restoring to the tribes looted objects that are not covered by NAGPRA, and that are still in the U.S. We believe the language could be 

rewritten (1) to apply to ‘‘cultural items’’ as defined by NAGPRA (and embodied in 

Section 2 of the proposed law—eliminating the term ‘‘tangible cultural property); 

and (2) to specify that the voluntary return policy does not apply to museums, universities, and other institutions that are subject to NAGPRA, only to dealers, collectors, and other organizations. 

An alternative would be to eliminate Section 4 altogether and to convene a gathering of all stakeholders on this issue to create a new approach in separate legislation. In either case, it would be useful to add a provision authorizing more funding 

and staffing for law enforcement in the area of cultural resources and looting or illegal trafficking. 

SAA strongly supports the export-related provisions of S. 1400, and stands ready 

to work with Senator Heinrich and the committee to remedy what we see as some 

serious problems and to help move this legislation forward. 

69 

PREPARED STATEMENT OF HON. RUSSELL BEGAYE, PRESIDENT, NAVAJO NATION

Ya 1’a ́t’e ́e ́h Chairman Hoeven and Members of the Committee. 

My name is Russell Begaye. I am president of the Navajo Nation. I want to thank 

the Committee, Chairman Hoeven, and Vice Chairman Tom Udall for holding this 

legislative hearing on an important matter that affects all of Indian Country. 

The Navajo Nation supports S. 1400, the Safeguard Tribal Objects of Patrimony 

Act of 2017 (STOP Act). 

The Navajo Nation has been entrusted with the protection of funerary objects, sacred objects and objects of cultural patrimony since the beginning of time. 

As the President of the Navajo Nation, this responsibility is not all my own. I am 

humbled and honored to share in this sacred responsibility with our past leaders, 

our current cultural teachers, and the medicine people who today lead our ceremonies and our sacred prayers. We believe that through their practice and use of 

our sacred objects, they restore balance, health, and spirituality to bring us together 

as Dine ́ People. These sacred objects are central to our future as Dine ́ people. These 

objects are as important as our language, as important as the four sacred Navajo 

mountains and as important as this land that we have lived on since time immemorial. 

The United States government, Native American cultural and political leaders 

and the academic world have introduced many pieces of landmark legislation in the 

past hundred years to provide protection of tribal patrimonial items. To those cultural pioneers and leaders, we thankful to them for their work and advocacy on behalf of all Indian Nations. However, from time to time, we must revisit these cultural protection laws based on the ever-changing world and add protections that 

were unseen at the time these laws were enacted. 

Today, we are here to show our support of the STOP Act to improve upon the 

body of cultural resource protection law, domestically and internationally. 

The Navajo Nation is in full support of federal and legislative measures that address the illegal sale and trafficking of Native American cultural patrimony. We 

thank the lawmakers and the administrative officials for their leadership and support on these matters. 

Before cultural resource protection laws were enacted, thousands of objects of cultural patrimony were taken, stolen and sold by people who had no right to sell them 

to European traders, collectors, museums and academic institutions. We recognize 

that the western concept of art, archeology, anthropology, and government encompasses a view of cultural patrimony as objects to be studied and admired for intellectual gain. We also acknowledge that there are individuals in academia who have 

spent their entire careers studying our people and that there are higher education 

institutions devoted to teaching their students about American Indians. 

However, our people and our objects of cultural patrimony are not to be studied, 

hung on walls to be admired or cataloged and placed in storage bins in annexes 

across the world. Our sacred objects are not like the western concept of icons and 

statuaries that are found in western churches, displayed in museums or sold at auction or traded on the black or open market. 

Our medicine people sang and prayed over these sacred items in ceremonies for 

days, and in some cases, weeks. The raw materials used to create our sacred items 

are sacred themselves. Our people, our holy people, created these items for the benefit of our Nation. These items were created to maintain the sacredness and the 

wholeness of our people. Without them, we are not a whole people. 

Museum curators, scientists, and collectors do not have the inherent knowledge, 

nor do they possess the right to care for these sacred objects in our sacred way. Curators, scientists, and collectors cannot care for these objects, nor can they restore 

balance into the lives of our people. These are scared responsibilities that were bestowed upon by our holy people to our medicine people. Our medicine people possess 

the divine right to care for these objects. We believe that by utilizing our sacred objects in ceremonies—through our songs and our prayers—that balance, harmony 

and healing is restored to our communities. 

Despite protections in current law, the illicit trade in Native American tangible 

cultural heritage continues to pose a serious threat to tribal cultural survival. Our 

sacred and cultural items are illegally taken from our peoples, threatening the 

maintenance of our cultures and traditions and depriving us of the legacy we seek 

to leave our future generations. Meanwhile, a lucrative black market in our tangible 

cultural heritage thrives, and without explicit export restrictions many of our sacred 

and cultural items end up abroad. 

For decades, the Navajo Nation has shared in the struggles with other tribal nations to recover the physical remains of our ancestors and the sacred objects they 

left behind. The Navajo Nation has litigated tirelessly over the shortcomings of 

70 

1 USET SPF member Tribal Nations include: Alabama-Coushatta Tribe of Texas (TX), Aroostook Band of Micmac Indians (ME), Catawba Indian Nation (SC), Cayuga Nation (NY), 

Chitimacha Tribe of Louisiana (LA), Coushatta Tribe of Louisiana (LA), Eastern Band of Cherokee Indians (NC), Houlton Band of Maliseet Indians (ME), Jena Band of Choctaw Indians (LA), 

Mashantucket Pequot Indian Tribe (CT), Mashpee Wampanoag Tribe (MA), Miccosukee Tribe 

of Indians of Florida (FL), Mississippi Band of Choctaw Indians (MS), Mohegan Tribe of Indians 

of Connecticut (CT), Narragansett Indian Tribe (RI), Oneida Indian Nation (NY), Pamunkey Indian Tribe (VA), Passamaquoddy Tribe at Indian Township (ME), Passamaquoddy Tribe at 

Pleasant Point (ME), Penobscot Indian Nation (ME), Poarch Band of Creek Indians (AL), Saint 

Regis Mohawk Tribe (NY), Seminole Tribe of Florida (FL), Seneca Nation of Indians (NY), 

NAGPRA as recently as last year. We, as a sovereign nation, continue to struggle 

with utilizing current U.S. laws to protect our sacred objects and remains in the jurisdiction of your international counterparts. 

Last year, the Navajo Nation recovered several ceremonial masks from a Paris, 

France auction, but not without extreme difficulty. The Paris Auction House refused 

to remove Navajo ceremonial masks from its sale, citing lack of explicit export prohibitions. The Nation eventually recovered 15 masks following monetary negotiations 

with the Auction House. Unfortunately for the Nation, the French people and their 

government did not understand, nor did they attempt to understand, our perspective—these objects were sacred and were not created to hang on walls of museums. 

France simply equated our interest in the return of these objects as a religious 

issue. France did not take into consideration that these ceremonial masks were integral to our very existence. Other nations have demonstrated a similar view. 

Our most recent experience with the Paris Auction House, not dissimilar from all 

other repatriation efforts, is why the Navajo Nation passionately supports the STOP 

Act. Why should we, as Dine ́ People, be forced to participate in a bidding process 

to retrieve items that were taken and sold by individuals who had no right to do 

so? 

We must educate all about these issues—not just the French people, but also the 

European Union and other nations harboring our sacred objects and objects of cultural patrimony. 

Our sacred artifacts and cultural items are an important part of the Navajo culture and beliefs. They provide us a sense of who we are and provide us sustenance 

for our physical, emotional and spiritual wellbeing. 

We look forward to working with Congress and the Administration to enact current measures including the STOP Act of 2017—a bill that will prohibit the exporting of sacred Native American items and increase penalties for stealing and illegally 

trafficking tribal cultural patrimony. 

We support the STOP Act’s increased penalties for violations of the Native American Graves Protection and Repatriation Act (NAGPRA) and its explicit prohibition 

on exporting items obtained in violation of NAGPRA, the Archaeological Resources 

Protection Act (ARPA), and the Antiquities Act. It is important to note, the STOP 

Act does not extend the reach of these three laws to the tribal cultural heritage that 

is not already protected, and thus it does not criminalize any currently legal domestic activity. Instead, it increases the deterrent effect of current law, creates a structure for federal facilitation of the voluntary return of tribal cultural heritage and 

engages tribes through a working group to provide input on implementation. 

By passing these cultural protection laws, Congress will take a major step in history in its endeavor to make the Navajo Nation and all tribes across the country 

whole after experiencing the erosion of their cultural identities. We are grateful to 

you, to the Committee members, and to the Committee staff for your work in drafting STOP. Your continued support for the recovery of our sacred objects will not 

only contribute to our ho ́zho ́, the beauty way of our life, but your support of S. 1400 

will also ensure the survival of our People. The Navajo Nation and Indian Country 

are grateful for your service and long-term vision and wisdom on this matter. Thank 

you. 

PREPARED STATEMENT OF THE UNITED SOUTH AND EASTERN TRIBES SOVEREIGNTY

PROTECTION FUND (USET SPF) 

The United South and Eastern Tribes Sovereignty Protection Fund (USET SPF) 

is pleased to provide the Senate Committee on Indian Affairs (SCIA) with the following testimony for the record of its November 8, 2017 legislative hearing on 

S.1400, The Safeguarding Tribal Objects of Patrimony (STOP) Act of 2017, and 

S.465, The Independent Outside Audit of the Indian Health Service Act of 2017. 

USET SPF is an intertribal organization comprised of twenty-seven federally recognized Tribal Nations, ranging from Maine to Florida to Texas. 1 USET SPF is 

71 

Shinnecock Indian Nation (NY), Tunica-Biloxi Tribe of Louisiana (LA), and the Wampanoag 

Tribe of Gay Head (Aquinnah) (MA). 

dedicated to enhancing the development of federally recognized Tribal Nations, to 

improving the capabilities of Tribal governments, and assisting USET SPF Member 

Tribal Nations in dealing effectively with public policy issues and in serving the 

broad needs of Indian people. 

Safeguarding Tribal Objects of Patrimony Act of 2017 

USET SPF registers our strong support for the STOP Act of 2017. The protection 

of our sacred cultural items is essential to the survival of our cultures. For too long, 

USET SPF Tribal Nations, and Tribal Nations across the country, have faced the 

ongoing theft and commercial sale of our sacred cultural objects. These sales have 

occurred both nationally and internationally, despite current federal law aimed at 

protecting items of cultural patrimony. The desecration of our cultural objects, 

which often include human remains, must stop, and these items must be returned 

to our people. 

Stronger penalties are urgently needed to deter the illegal conduct by which these 

sacred items are obtained and sold. The STOP Act of 2017 would make necessary 

changes to existing federal law by increasing penalties, explicitly prohibiting exportation of cultural items, and providing immunity for the voluntary repatriation of 

cultural objects. Further, the STOP Act calls upon the federal government to form 

Tribal working groups to advise and help federal agencies fully understand the 

scope of these problems and how to solve them. 

USET SPF believes that stronger penalties will discourage illegal conduct and 

even lead to a dialogue with the holders of these cultural objects that will enable 

their safe return home. The ability of Tribal Nations to rebuild and create a healthy 

future depends, in large part, on how we are able to understand our respective 

pasts. Our cultural and sacred items provide a vital link to our history, our ceremonies, and our way of life. 

USET SPF commends Senator Martin Heinrich, and cosponsors, for the introduction of the STOP Act and calls upon Congress for its swift passage. 

Independent Outside Audit of the Indian Health Service Act of 2017 

The manager’s amendment to S.465, The Independent Outside Audit of the Indian 

Health Service Act of 2017, would require the Inspector General (IG) of the Department of Health and Human Services (HHS) to conduct an assessment of IHS’ health 

care delivery systems and financial management processes at IHS direct-care facilities. If the IG does not conduct the assessment after 180 days, then HHS would be 

required to enter into one or more contracts with an independent, private entity to 

conduct the assessment. The assessment would focus on several issue areas including: the demographics and health care needs of the patient population, health care 

capabilities and resources, staffing levels and productivity health care providers, 

and information technology strategies, among others. 

USET SPF appreciates Senator Rounds’ and SCIA’s efforts to address the ongoing 

health care delivery issues within the Great Plains Area and understands that S. 

465 is a response to this crisis. However, we have a number of concerns with both 

the legislation as introduced and the Senator’s proposed manager’s amendment. 

USET SPF feels a broad, one-size-fits-all approach to addressing these problems is 

unwarranted. S. 465 seems to be a national response to regional, Area-specific concerns. Not all twelve IHS Areas are experiencing these same types of failures, and 

there are lessons to be learned from the best practices they employ. Yet, S. 465 does 

not examine best practices across the IHS system, and many of the issues the bill 

seeks to examine are currently being reviewed or have previously been reviewed by 

the Government Accountability Office (GAO) and other entities. 

Effect on Self-Governance Facilities and Indian Health System 

We acknowledge the Senator’s work in responding to concerns with S. 465 by 

issuing a manager’s amendment clarifying the assessment would apply only to IHSrun facilities. However, it is important to note that regardless of the assessment’s 

scope, it has the potential to impact the entire Indian Health System. For example, 

all Tribal Nations utilize the Purchased/Referred Care (PRC) Program for the purchase of care outside of IHS and Tribal facilities. Both the bill and the manager’s 

amendment seek a review of the authorities under which outside care is furnished. 

GAO is currently reviewing this program and providing its recommendations to IHS’ 

PRC Workgroup. It is unclear, then, whether the review prescribed by S. 465 is necessary and what effect it might have on the implementation of GAO recommendations occurring at the time of passage. In addition, the Senator has indicated this 

72 

bill is designed to lay the groundwork for additional legislative action reforming 

IHS. Resulting legislation that seeks changes in funding levels, formulas, or management processes is unlikely to be limited to Direct Service units. 

Assessment of the Indian Health Service 

While USET SPF fully agrees that the devastating failures of the Great Plains 

IHS Area must be accounted for and fully addressed, an assessment of this magnitude, whether internal or external, is likely to divert much needed funding and/ 

or attention away from patient care, a violation of the federal trust responsibility. 

IHS witness, Elizabeth Fowler, included this concern in her written testimony. Vital 

healthcare resources must be not be redirected to provide information that, in many 

cases, has already been provided to Congress and the public. We agree with IHS 

that 180 days is an insufficient timeframe for an internal assessment. 

Additionally, we continue to have concerns that an external entity may not have 

experience with the Indian Health System, a requirement to interpret any data collected. The Indian Health System, while in some ways similar to Veteran’s Affairs, 

is the only federal health care system operating in fulfillment of a legal and moral 

trust responsibility to its patients. Its purpose, goals, and processes reflect the 

unique nature of this responsibility. USET SPF contends that a majority of outside 

entities will not have the knowledge or perspective required to properly assess IHS. 

The language of S. 465 and its manager’s amendment must reflect the need for any 

outside entity to have expertise in Indian Health. 

Continued Need for Tribal Consultation 

In addition, it is problematic that this bill was introduced without broad Tribal 

consultation. Legislation that attempts to address issues within IHS through Congressional action, or otherwise, must be accomplished through extensive Tribal consultation. It is similarly troubling that neither the bill as written nor the manager’s 

amendment requires consultation with Tribal Nations during the assessment/audit 

process or prior to the issuance of the resulting report. Tribal Nations, the recipients 

of care provided by IHS, must provide guidance during the assessment and have the 

opportunity to comment on the results of any assessment. We must have the ability 

to dictate how the information in the report will be presented and utilized. 

Chronic Underfunding Contributes to Failures 

Further, although USET SPF supports innovative legislative solutions to improve 

the quality of service delivered by IHS, we continue to underscore the obligation of 

Congress to meet its trust responsibility by providing full funding to IHS. Any deficiencies that could be identified within IHS through an assessment are, at least in 

part, a direct result of the chronic underfunding of the Indian Health System. Providing quality healthcare can only be accomplished when programs within the Indian Health System are fully funded. USET SPF is deeply concerned by continued 

rhetoric suggesting that increased appropriations to IHS will not address problem 

areas. We continue to assert that it is disingenuous to fund a health system at just 

under 60 percent of identified obligation and expect that system to operate properly. 

The U.S. has a legal and moral trust responsibility to Tribal Nations that has 

been reaffirmed time and time again and are the result of millions of acres of land 

and resources ceded to the U.S. to provide benefits and services in perpetuity to AI/ 

ANs. The most recent reaffirmation of this trust responsibility was articulated in 

2010 though the permanent reauthorization of the Indian Health Care Improvement 

Act when, ‘‘Congress declare[d] that it is the policy of this nation, in fulfillment of 

its special trust responsibilities and legal obligations to Indians to ensure the highest possible health status for Indians and urban Indians and to provide all resources 

necessary to effect that policy.’’ Until Congress fully funds the IHS, the Indian 

Health System will never be able to fully overcome its challenges and fulfill its trust 

obligations. At a minimum, S. 465 should examine how the underfunding of IHS 

contributes to its operational shortcomings. 

USET SPF acknowledges the efforts of the Committee seeking to address the 

long-standing challenges at IHS. However, we believe that S. 465 is duplicative of 

current, governmental efforts and would redirect vital funding to private entities 

and away from patient care. While we stand with our brothers and sisters who are 

experiencing failures in health care delivery, we ask that the Committee strongly 

consider the national consequences of S. 465 and work with Tribal Nations to come 

to a resolution that is beneficial for all IHS Areas. USET SPF maintains that until 

Congress fully funds the IHS, the Indian Health System will never be able to fully 

overcome its challenges and fulfill its trust obligations. 

73 

ASSOCIATION ON AMERICAN INDIAN AFFAIRS

November 22, 2017 

Chairman John Hoeven, 

Vice Chairman Tom Udall, 

Hart Senate Office Building, 

Washington, DC. 

RE: SUBMISSION OF COMMENTS FOR NOVEMBER 8, 2017 STOP ACT HEARING, 

S. 1400 

Dear Chairman Hoeven and Vice Chairman Udall: 

The Association on American Indian Affairs (AAIA) is honored and grateful for 

the opportunity to provide support to this bi-partisan legislation that is necessary 

to the continued revitalization of Native cultures and supports Tribal self-sufficiency 

and self-determination. The Safeguard Tribal Objects of Patrimony Act of 2017 

(STOP Act) declares that the exportation of cultural items and archaeological resources that are already protected from trafficking within the U.S. is illegal. This 

assertion of law and policy through the STOP Act is desperately needed. 

AAIA absolutely supports the STOP Act. The AAIA is the oldest non-profit organization working in Indian Country, founded in 1922 by Indian policy reformists such 

as John Collier who sought to end assimilationist and allotment policies of the late 

19th and early 20th Centuries. For at least the last 50 years, AAIA has worked to 

support Tribal efforts for the protection of indigenous religions, languages, sacred 

sites, and the return of ancestors, their burial items, and other looted cultural 

items. AAIA assisted in the development and drafting of the National Museum of 

the American Indian Act (NMAI Act) and the Native American Graves Protection 

and Repatriation Act (NAGPRA). ‘‘Protection of Cultural Items’’ is a significant 

AAIA program. As part of this program, AAIA has worked with Tribal governments 

and spiritual leaders, as well as attorneys and advocates, to develop appropriate legislation to STOP the export of our indigenous culture overseas. 

The journey home of ancestors, funerary objects, objects of cultural patrimony, sacred objects, and other archaeological items back to their origin and into the possession and control of American Indian Nations is a significant constitutional due process and Indian Commerce Clause issue, as well as a human rights concern. The U.S. 

Congress has already determined that federal law must support the special government-to-government relationship with Tribes through protection and repatriation of 

cultural items through NAGPRA. The U.S. Congress has already documented the 

terrible history of how Native Americans were dispossessed of their ancestors and 

cultural items when NAGPRA was drafted and enacted. Yet, the commercial perspective regarding the sale of ‘‘tribal antiquities’’ lags far behind US law and policy 

and is, unsurprisingly, threatened by the current legislation that you have proposed—and for which there has only been positive support from Tribes, Indian organizations and Native peoples. 

All opposition to this bill comes from commercial dealers that are worried the exportation ban will eat into their sales of tribal antiquities. The Antique Tribal Art 

Dealers Association (ATADA) and non-profits supporting the agenda of commercial 

dealers including the Committee for Cultural Policy (CPP) and the Global Heritage 

Alliance (GHA), argue how the STOP Act is too broad, redundant and therefore unnecessary, and will harm the sale of legitimate American Indian art. Such comments from this opposition are misplaced and incorrect. 

The STOP Act Applies to What Is Currently Protected Under Law 

The STOP Act’s exportation restriction applies only to what Congress has deemed 

is illegal to traffic: NAGPRA ‘‘cultural items,’’ Archaeological Resources Protection 

Act (ARPA) ‘‘archaeologic resources,’’ and the Antiquities Act ‘‘objects of antiquity’’. 

Commercial dealers who are in possession of these items cannot traffic them domestically already. 

So why are commercial dealers concerned about their exportation? Commercial 

dealers are in fact in possession of human remains, funerary objects, objects of cultural patrimony, sacred items, archaeological resources and objects of antiquity that 

were looted prior to the enactment of these laws. But for the time period and tribal 

and federal restrictions of current cultural heritage law, commercial dealers would 

be in possession of illegally held cultural resource items that should be protected 

by Tribal or federal governments. 

This does not mean that the STOP Act is too broad; instead, it puts the onus 

where it should be—on the commercial dealer—to prove that he or she holds the 

item properly under current law. Any legitimate dealer should have retained the 

history and context of an item—without it, the item should not be marketable and 

should be presumed to be obtained improperly. Commercial dealers are very sophisVerDate Mar 15 2010 12:55 May 24, 2018 Jkt 030106 PO 00000 Frm 00077 Fmt 6601 Sfmt 6621 S:\DOCS\30106.TXT JACK
74 

ticated and are experts on the items they hold so they can place a value on the item. 

Often, unfortunately, more profit can be gained by the sale of items held improperly. 

While the STOP Act should place the burden on the holder of an item to prove 

ownership at the border, the STOP Act does not present a greater burden on the 

federal government or customs’ agents because of federal agency expertise in protecting against the importation of cultural patrimony from other countries under the 

Convention on Cultural Property Implementation Act (CPIA) and is trained well 

through State Department programs. 

In addition, the argument that Tribes will not give sacred information about items 

is a red herring because such information is not necessary to provide notice. One 

need only peruse a federal register notice for the Department of Homeland Security, 

US Customs and Border Protection and Department of the Treasury for import restrictions imposed on certain cultural patrimony to clearly understand that identifying Native American cultural resources will not be a burden on the federal government, or for providing notice. 

For example, 2013 FR 14183–14185 provides the listing of archaeological resources protected against importation into the U.S. from Belize and, as listed, includes broadly: 

II. Stone—Objects in any type of stone, including jade, greenstone, obsidian, 

flint, alabaster/calcite, limestone, slate, or other. 

A. Tools-forms such as points, blades, scrapers, hoes, grinding stones, 

eccentrics and, others. 

B. Jewelry-forms such as necklaces, earplugs, pendants, beads, and others. 

C. Monumental Stone Art-forms such as stelae, round altars, architectural 

elements, and others. 

D. Vessels-forms such as bowls and vases. 

E. Figurines-forms such as human, animal, and mythological creatures. 

F. Masks-burial masks of variable stone composition. 

Federal Register Notice for Belize attached hereto. There is no need to describe 

particular detail, or other information that is deemed sacred by Tribes. Again, the 

onus is on the person attempting to export the item to prove proper ownership; the 

burden is not on Tribes to give away sacred and protected information in order to 

give notice. 

The Legitimate Sale and Ownership of American Indian Art 

There have been no American Indian artists or American Indian artist associations that have rallied against the STOP Act. In fact, AAIA’s work with American 

Indian artists has only found support for the STOP Act because it will actually increase the market in legitimate art. Only the commercial dealers—ATADA, CPP 

and GHA—argue that the STOP Act will diminish the sale of American Indian art. 

American Indian artists however, understand that American Indian art is easily distinguishable from cultural items, archaeological resources and objects of antiquity: 

simply, American Indian art is signed by the artist—prohibited cultural items are 

not signed with an individual artist’s name. Neither have museums and federal 

agencies had this concern when repatriating NAGPRA cultural items. This is important for commercial dealers however, because they conflate ‘‘art’’ with ‘‘antiquities’’ 

and use these terms interchangeably in order to legitimize the sale of ‘‘antiquities’’ 

as ‘‘art.’’ 

Commercial dealers are in possession of human remains, funerary objects, objects 

of cultural patrimony, sacred objects and archaeological resources that they proclaim a commercial interest in. If those ‘‘antiquities,’’ which are distinguishable from 

‘‘art,’’ are held legitimately and in accordance with current law, then commercial 

dealers should absolutely be able to prove it. If they are not, then the item should 

not be marketable. 

Improvements to the STOP Act 

AAIA absolutely supports the passage of the STOP Act as soon as it can be accomplished. However, it is worth noting that the STOP Act provides Congress an opportunity to fix other issues with current legislation. First, the Enhanced Penalty section could provide stronger deterrence against trafficking and improper export if the 

intent requirement was amended. 

AAIA supports the increased penalty from 5 to 10 years. However, a significant 

issue of 18 USC 1170 is the intent requirement: ‘‘Whoever knowingly sells. . . ’’ requires the individual to know that the act is illegal. Often, this requirement of 

knowledge of illegality can be most difficult to prove, and therefore the criminal penalty does not provide a deterrence effect for the trafficking of cultural items. Revising the penalty to include a general level of intent, such as intent to sell (instead 

75 

of the knowledge that the selling is illegal), and no requirement of intent (strict liability), would support Congress’ efforts to end trafficking. These lower or no intent 

crimes could provide misdemeanor or 1–2 year penalties, depending on scope of the 

crime. 

Second, the meaning of ‘‘Native American’’ under NAGPRA was weakened by the 

Ninth Circuit case of Bonnichsen v. United States, 367 F.3d 864 (9th Cir. 2004). 

NAGPRA’s definition of ‘‘Native American’’ ‘‘means of, or relating to, a tribe, people, 

or culture that is indigenous to the United States.’’ 25 U.S.C. 3001(9). The court 

found that ‘‘is indigenous’’ meant that the human remains must be affiliated with 

a present-day tribe. AAIA in concert with the NAGPRA Review Committee, 

NAGPRA practitioners and Indian Tribes have sought to amend this definition, 

which is used expressly in the STOP Act, to state that Native American ‘‘is or was’’ 

indigenous to the United States in order to effectuate the intent of NAGPRA to protect graves and repatriate human remains. 

Finally, outside of the STOP Act, AAIA and its membership are very concerned 

that the US Department of Interior Secretary Zinke has indefinitely suspended the 

NAGPRA Review Committee. This action occurred in May 2017 and there has been 

no expectation from the Department when the NAGPRA Review Committee will be 

able to fulfill its statutory mandate. Congress mandated that the NAGPRA Review 

Committee oversee and make decisions about the repatriation of human remains 

and other cultural and sacred items. If the Review Committee doesn’t meet, museums and federal agencies are unable to fulfill certain legal responsibilities, and 

tribes are further delayed from the return of their ancestors and cultural items. The 

Act states that NAGPRA is based on the unique government-to-government relationship the federal government has with Tribes (sect. 3010). Zinke’s suspension of 

all FACA committees is an overbroad action; though his intention is to make sure 

stakeholders have a say in what happens at Interior, his action is actually preventing that with Tribes and NAGPRA. Even worse, it is my understanding that a 

few Tribes have been working to get meetings about the suspension of the NAGPRA 

Review Committee with the Secretary (or his delegate on this issue), and have been 

rejected several times. I hope that you will see to it that the NAGPRA Review Committee be released from Secretary Zinke’s suspension. 

Thank you for your attention on these important matters that support Tribal selfdetermination and self-sufficiency. If you have any questions, please do not hesitate 

to contact me. 

Yakoke—my Choctaw thanks, 

SHANNON KELLER O’LOUGHLIN, Executive Director. 

COQUILLE INDIAN TRIBE

North Bend OR, November 14, 2017 

Chairman John Hoeven, 

Vice Chairman Tom Udall, 

Hart Senate Office Building, 

Washington, DC. 

RE: SUPPORT FOR THE SAFEGUARD TRIBAL OBJECTS OF PATRIMONY ACT OF

2017 

Dear Chairman Hoeven and Vice Chairman Udall: 

Dai’sla! I am the Chairperson of the Coquille Indian Tribe. I write you today to 

request that you support S. 1400, the Safeguard Tribal Objects of Patrimony Act 

of 2017 (STOP Act). The Coquille is a terminated-and-restored tribe headquartered 

in North Bend, Oregon. Our ancestral territory includes large areas of the Southern 

Oregon coast and interior, an area with a high percentage of federal land ownership 

and many documented and still undocumented cultural resource locations. 

Even though current law offers protections, the illicit trade in Native American 

tangible cultural heritage continues to threaten tribal cultural survival. Sacred and 

cultural items are illegally taken from our peoples, threatening the restoration and 

maintenance of our cultures and traditions and depriving us of the legacy we seek 

to leave our future generations. At the same time, international black market profiteers trade our irreplaceable cultural heritage, unfettered by export restrictions. 

The STOP act raises the stakes for people that violate the Native American 

Graves Protection and Repatriation Act (NAGPRA) and prohibits people from exporting items obtained in violation of three key archeological and cultural resource 

laws: NAGPRA, the Archaeological Resources Protection Act (ARPA), and the Antiquities Act. The STOP Act does not change what acts are considered criminal—it 

merely imposes higher penalties and stops traffickers from exporting contraband. 

The STOP Act also enables the Federal Government to help to encourage the return 

76 

of tribal cultural heritage and engages a tribal working group to provide input on 

implementation. 

The STOP Act of 2017 will help end illegal trafficking in my Tribe’s tangible cultural heritage and restore possession of our sacred and cultural items that have 

been separated from my community for so long. I urge you to adopt the STOP Act 

and thank the Committee for its attention to this important matter. 

Sincerely, 

BRENDA MEADE, Chairperson. 

THE HOPI TRIBE

November 6, 2017 

Chairman John Hoeven, 

Vice Chairman Tom Udall, 

Hart Senate Office Building, 

Washington, DC. 

RE: SUPPORT FOR S. 1400, THE STOP ACT

Dear Chairman Hoeven and Vice Chairman Udall: 

The Hopi Tribe strongly supports S. 1400, the Safeguard Tribal Objects of Patrimony Act of 2017 (STOP Act). The STOP Act will help stem the pervasive and 

illegal trade of tribal cultural patrimony. 

The Hopi people trace our history back thousands of years, making Hopi one of 

the oldest living cultures in the world. Today, Hopi is a vibrant and living culture. 

Hopi people, Hopisinoni, continue to perform our ceremonial and traditional responsibilities in our ancient language. 

However, we face a new threat that strikes at the heart of our culture. This new 

threat is the continued sale of Hopi sacred objects across the United States and the 

globe. The issue is particularly bleak in Paris, France where we have fought to stop 

these sales with both public protests and lawsuits. We, unfortunately, have not succeeded. 

It is our position that all of our sacred objects on auction were illegally taken from 

our jurisdiction and subsequently sold in the black market that thrives today. This 

illicit trafficking of tribal sacred objects must stop. 

Therefore, the Hopi Tribe supports your current effort to enact the STOP Act, 

which will strengthen tribes’ ability to protect their sacred objects, increase penalties and explicitly prohibit the marketing and trafficking of tribal sacred objects. 

We support the STOP Act’s increased penalties for violations of the Native American Graves Protection and Repatriation Act (NAGPRA) and its explicit prohibition 

on exporting items obtained in violation of NAGPRA, the Archaeological Resources 

Protection Act (ARPA), and the Antiquities Act. 

The STOP Act does not extend the reach of these three laws to tribal cultural heritage that is not already protected, and thus it does not criminalize any currently 

legal domestic activity. 

Instead, it merely increases the deterrent effect of current law by imposing 

heightened penalties and provides that traffickers may not export their contraband. 

Additionally, the STOP Act creates a structure for federal facilitation of the voluntary return of tribal cultural heritage and engages tribes through a working 

group to provide input on implementation. 

We believe the STOP Act of 2017 will help end illegal trafficking in Native American tangible cultural heritage and bring home our sacred and cultural items that 

have been separated from our communities for far too long. We support the prompt 

passage of the STOP Act and thank the Committee for its attention to this important matter. 

Respecfully, 

HERMAN G. HONANIE, Chairman. 

THE NAVAJO NATION

November 7, 2017 

Chairman John Hoeven, 

Vice Chairman Tom Udall, 

Hart Senate Office Building, 

Washington, DC. 

RE: SUPPORT FOR THE SAFEGUARD TRIBAL OBJECTS OF PATRIMONY ACT OF

2017 

Dear Chairman Hoeven and Vice Chairman Udall: 

77 

1 write to support S 1400. the Safeguard Tribal Objects of Patrimony Act of 2017 

(‘‘STOP Act’’). The Navajo Nation thanks you for introducing this forward thinking 

bill. This bill demonstrates the incredible team work between Congress and the Executive Branch, and their ability to come together for a bill that will enhance the 

protection and repatriation of our human remains. funerary objects, sacred objects 

and objects of cultural patrimony. In June 2016, the 23rd Navajo Nation Council 

passed a resolution in support of the Safeguard Tribal Objects of Patrimony Act. 

Despite the current protections afforded by the law, the illicit trade in Native 

American tangible cultural heritage continues to pose a serious threat to our cultural survival. Our sacred and cultural items are illegally taken from our peoples. 

threatening the maintenance of our cultures and traditions and depriving us of the 

legacy we seek to leave our future generations. Meanwhile, a lucrative black market 

in our tangible cultural heritage thrives, and without explicit export restrictions 

many of our sacred and cultural items end up abroad. 

We support the STOP Act’s increased penalties for violations of the Native American Graves Protection and Repatriation Act (NAGPRA) and its explicit prohibition 

on exporting items obtained in violation of NAGPRA, the Archaeological Resources 

Protection Act (ARPA), and the Antiquities Act. It is important to note that the 

STOP Act does not extend the reach of these three laws to tribal cultural heritage 

not already specified. and thus does not criminalize any legal domestic activity. Instead, it increases the deterrent effect of current law while creating a structure for 

federal facilitation of the voluntary return of tribal cultural heritage and engaging 

tribes through a working group to provide input on implementation. 

We believe the STOP Act of 2017 will help end illegal trafficking in Native American tangible cultural heritage and bring home our sacred and cultural items that 

have been separated from our communities for far too long. Our cultural heritages 

are not objets d’art to be traded as decorative items to be put in a collection case 

or on a mantle piece. On the contrary, these are living and breathing objects are 

used specifically for healing in our most sacred of ceremonies. 

We support the swift passage of the STOP Act and thank the Committee for its 

attention to this important matter. We are grateful to you. to the Committee members, and to the Committee staff for your work in drafting STOP. Your continued 

support for the recovery of sacred tribal objects will do much to ensure the survival 

of our People. 

Sincerely, 

78 

RUSSELL BEGAYE, President. 


1108a1.eps

November6,2017 

Senator Martin Heinrich 

303 Hart Senate Office Building 

Washington, DC 20510 

IPUEBLO OF LAGUNA~ 

Senate Committee on Indian AffaUs 

838 Hart Senate Offire Buildlng 

Washington, DC 20510 

Re: Support for Safeguard Tribal Objects of Patrimony Act of 2017 

Dear Senator Heinrich 

On behalf of the Pueblo of Laguna, I am writing in strong support for 5. 1400, the Safegmrrd 

Tri!ml Objects of Patrimony Act of 2017 (STOP Act). The Pueblo of Laguna (~Pueblo) is one of 

19 Pu~blos in New Me~lco, Our Pueblo is one of the original Pueblos located in the State of 

New Mexico and we are located about45 miles west of Albuquerque on Interstate 40, We have 

many sacred sites on our lands. 

In recent years, the Pueblo has been vigilant in searching for any items of !he Pueblo's 

patrimony which maybe advertised fur sale not only in the United States but in other countries 

as well. Since the heginning of 2016, we have located three itoms adwrlised for sale or auction 

at galleries located in Santa Fe and Scottsdale. We have worked with the galleries to have the 

three items auo:essfully returned to the Pueblo. However, our experinnaJ has not always been 

successful. We are rurr..ntly working with the Bweau of Jnilian Affairs, Office of Judicial 

Scrvlct!s, to re.:overitems from a ga11.ery in California. 

Additionally, the Pueblo incurred significant cost to cepatriate a ceremonial mask that was to be 

auctioned by a French auction house ln 2014, The Pueblo paid around $30,000.00 to purc'hase 

the item as it waa a mask which had ongoing historical, traditional, and cultural import11nce 

centr.ll to our traditions, beliefs and customs. The Pueblo should not have to pwchasB an item 

that is rightfully ours, however the si.gnifi= of the mask was such that we simply had no 

other choice. 

TI1e Pueblo supports the STOP Ad's Increased penalties for violations of the Native AmerlcM 

Graves Protection and Repalria\ion Ad (NAGPRA) and its e:.:plfdt prohibitions on exporting 

item.s obtained in violation of NAGPRA, tim Archaeological Rcsoun:es Protection Act {ARPA) 

and the Antiquities Act. The Act does not exte!Jd !he r~adJ. of ihese laws to tribal cultural 

heritage fuat is not already protected, and thus it does not criminalize any currently legal 

domestic activity. Instead, it increases the deterrent effect of current law by imposing 

heightened penalties and provides that lrafflckcrs may not export their conlraband. 

Additionally, the STOP Act creates a structum for fademl facilitation of the voluntary return of 

tribal cultural heritage and emga.ges tribes through a working group to provide input on 

implementation. 

It is out hope that stronger penalties will deter illegal conduct and even lead to a dialogue wiih 

the holders oi these items that will enable their return home. Native American cultural obje.:ls 

must remain in tribal possession. The Safeguard Tribal Objects of Patrimony Act of 2017 serves 

this goal, and therefore we support th~ Act. 

Sincerely, 

IJI¥~ Virgi!Siow 

Gov<-m~ 
79 

MUCKLESHOOT INDIAN TRIBE

Auburn. WA, November 6, 2017 

Chairman John Hoeven, 

Vice Chairman Tom Udall, 

Hart Senate Office Building, 

Washington, DC. 

RE: SUPPORT FOR S. 1400—THE SAFEGUARD TRIBAL OBJECTS OF PATRIMONY

(STOP) ACT OF 2017 

Dear Chairman Hoeven and Vice Chairman Udall: 


1108a2.eps
80 

The Muckleshoot Indian Tribe supports your Committee’s upcoming hearings to 

consider the STOP Act, and we will support our Senators Murray and Cantwell to 

join as co-sponsors of this bill. 

Opponents have claimed that the STOP Act would create new legal uncertainties 

regarding sale and export of Native American art and artifacts. However, the STOP 

Act is not intended to criminalize any additional activities, but simply increases the 

potential penalties for crimes under existing laws where cultural objects have been 

illegally acquired, including theft from archaeological heritage sites on federal or 

tribal lands. Investigation and federal prosecution of continuing crimes against native culture and patrimony has been woefully inadequate. And, significantly, the 

STOP Act encourages and creates opportunity for federal agencies and tribal governments to cooperate in identifying and seeking voluntary repatriation of cultural 

patrimony, including in private collections. 

We encourage the Committee to further authorize, prioritize, and fund the tribes 

and federal law enforcement cooperative efforts to bring ‘‘thieves of time’’ who are 

profiting from such crimes to justice. Thank you for your consideration of this matter. 

Respectfully, 

ANITA MITCHELL, Vice Chairperson. 

NATIONAL ASSOCIATION OF TRIBAL HISTORIC PRESERVATION OFFICERS

(NATHPO) 

Washington DC, November 7, 2017 

Chairman John Hoeven, 

Vice Chairman Tom Udall, 

Hart Senate Office Building, 

Washington, DC. 

RE: SUPPORT FOR THE SAFEGUARD TRIBAL OBJECTS OF PATRIMONY ACT OF

2017 

Dear Chairman Hoeven and Vice Chairman Udall: 

On behalf of the National Association of Tribal Historic Preservation Officers 

(NATHPO), we express our strong support for S. 1400, the Safeguard Tribal Objects 

of Patrimony Act of 2017 (STOP Act). NATHPO is a national organization of Tribal 

government officials who implement federal and tribal preservation laws. Membership is limited to federally-recognized Tribal government officials who are committed 

to preserving, rejuvenating, and supporting American Indian, Alaska Native, and 

Native Hawaiian cultures, heritage, and practices. Tribal Historic Preservation Officers (THPOs) often conduct repatriation activities for their respective tribe. 

The illicit trade in Native American tangible cultural heritage poses a grave 

threat to tribal cultural survival. Our sacred and cultural items are illegally taken 

from our peoples, threatening our cultures and traditions and deprive us of the legacy we seek to leave our future generations. Meanwhile, a lucrative black market 

in our tangible cultural heritage thrives, and without explicit export restrictions 

many of our sacred and cultural items end up abroad. 

We support the STOP Act’s increased penalties for violations of the Native American Graves Protection and Repatriation Act (NAGPRA) and its explicit prohibition 

on exporting items obtained in violation of NAGPRA, the Archaeological Resources 

Protection Act (ARPA), and the Antiquities Act. The Act does not extend the reach 

of these three laws to tribal cultural heritage that is not already protected, and thus 

it does not criminalize any currently legal domestic activity. Instead, it merely increases the deterrent effect of current law by imposing heightened penalties and 

provides that traffickers may not export their contraband. Additionally, the STOP 

Act creates a structure for federal facilitation of the voluntary return of tribal cultural heritage and engages tribes through a working group to provide input on implementation. 

We believe the STOP Act of 2017 will help end illegal trafficking in Native American tangible cultural heritage and bring home our sacred and cultural items that 

have for too long been separated from our communities. 

Sincerely, 

D. BAMBI KRAUS, President. 

23RD NAVAJO NATION COUNCIL

October 31, 2017 

Chairman John Hoeven, 

81 

Vice Chairman Tom Udall, 

Hart Senate Office Building, 

Washington, DC. 

RE: SUPPORT FOR THE SAFEGUARD TRIBAL OBJECTS OF PATRIMONY ACT OF

2017 

Dear Chairman Hoeven and Vice Chairman Udall: 

On behalf of Navajo Nation Council, I write to express our strong support for S. 

1400, the Safeguard Tribal Objects of Patrimony (‘‘STOP’’) Act of 2017. The illicit 

trade in Native American tangible cultural heritage poses a threat to Native American cultural survival. Our sacred and cultural items are illegally being taken from 

our people, threatening the maintenance of our culture and tradition, and depriving 

us of the legacy we seek to leave for our future generations. Meanwhile, a lucrative 

market in our tangible cultural heritage thrives, and without explicit export restrictions many of our sacred and cultural items end up abroad. 

The Navajo Nation is committed to preserving its cultural heritage. In December 

2014 and December 2015, members of the Navajo Nation Council traveled to Paris, 

France to purchase and retrieve twenty-eight (28) sacred Navajo masks from the 

Eve Auction House. These masks are items of cultural patrimony and used in the 

Tle ́e ́jı ́ (Nightway ceremony). We must continue to work together. 

The Navajo Nation Council supports the STOP Act’s increased penalties for violations of the Native American Graves Protection and Repatriation Act (NAGPRA) 

and its explicit prohibition on exporting items obtained in violation of NAGPRA, the 

Archaeological Resources Protection Act, and the Antiquities Act. The STOP act 

does not extend the reach of these three laws to tribal cultural heritage that is not 

already protected;it does not criminalize any currently legal domestic activity. Instead, it merely increases the deterrent effect of current law by imposing heightened 

penalties so that traffickers may not export their contraband. Additionally, the 

STOP Act creates a structure for federal facilitation of the voluntary return of items 

of tribal cultural heritage to their rightful owners. The Act also engages Tribes by 

establishing a working group to provide input on its implementation. 

We believe the Safeguard Tribal Objects of Patrimony Act of 2017 will help to end 

illegal trafficking in Native American tangible cultural heritage. It will also bring 

home our sacred and cultural items that have been separated from our communities 

for far too long. 

Sincerely, 

LORENZO BATES, Speaker, Office of the Speaker. 

NATIONAL INDIAN HEAD START DIRECTORS ASSOCIATION

November 1, 2017 

Chairman John Hoeven, 

Vice Chairman Tom Udall, 

Hart Senate Office Building, 

Washington, DC. 

RE: SUPPORT FOR THE SAFEGUARD TRIBAL OBJECTS OF PATRIMONY ACT OF

2017 

Dear Chairman Hoeven and Vice Chairman Udall: 

On behalf of the National Indian Head Start Directors Association (NIHSDA), I 

write to express our strong support for S. 1400, the Safeguard Tribal Objects of Patrimony Act of 2017 (STOP Act). NIHSDA has served as the voice for American Indian and Alaska Native Head Start programs for over 30 years. Representing 150 

Indian Head Start and Early Head Start programs, NIHSDA advocates for the best 

interests of Native children and their families. 

Indian Head Start programs are on the front lines of cultural preservation, providing an important resource for the transmission of Native languages, cultures, and 

ways of life to the next generation. Native cultures are grounded in ceremony, and 

the illegal trafficking in our sacred and cultural items and of our Ancestors threatens our very cultural survival. Unless our ways of life are protected, we lose a big 

part of what Indian Head Start has to offer the young children whom we serve. Yet, 

despite protections in current law, illegal trafficking in Native cultural heritage continues. Meanwhile, a lucrative black market in our tangible cultural heritage 

thrives, and without explicit export restrictions many of our sacred and cultural 

items end up abroad. 

We support the STOP Act’s increased penalties for violations of the Native American Graves Protection and Repatriation Act (NAGPRA) and its explicit prohibition 

on exporting items obtained in violation of NAGPRA, the Archaeological Resources 

82 

Protection Act (ARPA), and the Antiquities Act. The STOP Act does not extend the 

reach of these three laws to tribal cultural heritage that is not already protected, 

and thus it does not criminalize any currently legal domestic activity. Instead, it 

merely increases the deterrent effect of current law by imposing heightened penalties and provides that traffickers may not export their contraband. Additionally, 

the STOP Act creates a structure for federal facilitation of the voluntary return of 

tribal cultural heritage and engages tribes through a working group to provide input 

on implementation. 

Because of the central importance of our Native American cultural heritage to the 

futures of our children, NIHSDA strongly supports the STOP Act of 2017. We urge 

the prompt passage of the STOP Act and thank the Committee for its attention to 

this important matter. 

Respectfully, 

LEE TURNEY, President. 

YUROK TRIBE

November 2, 2017 

Chairman John Hoeven, 

Vice Chairman Tom Udall, 

Hart Senate Office Building, 

Washington, DC. 

RE: SUPPORT FOR THE SAFEGUARD TRIBAL OBJECTS OF PATRIMONY ACT OF

2017 

Aiy-ye-kwee’ Chairman Hoeven and Vice Chairman Udall: 

On behalf of the Yurok Tribe, I write to express our strong support for S. 1400, 

the Safeguard Tribal Objects of Patrimony Act of 2017 (STOP Act). The Yurok Tribe 

is a natural resources based tribe located in rural Northern California. We are the 

largest federally recognized tribe in California, with roughly 6,200 enrolled tribal 

members. The Yurok Reservation represents a small remnant of our Ancestral Territory, straddling the Klamath River one mile either side from the mouth at the Pacific Ocean to its confluence with the Trinity River, approximately 44 miles upstream. These are the lands Yurok people have inhabited since time immemorial. 

There are many culturally sensitive sacred areas, objects and graves of our ancestors remaining in known and unrecovered locations across our lands. Yuroks are 

deeply spiritual people, with a robust Cultural Department, including an active 

Tribal Historic Preservation Office, NAGPRA Office and Committee, Cultural Collections, Archeology, and Culture Committee. We follow well defined Tribal laws as 

well as traditional rules for the continued protection and practice of our traditions 

and customs. 

Despite protections in current law, the illicit trade in Native American tangible 

cultural heritage continues to pose a grave threat to tribal cultural survival. Our 

sacred and cultural items are illegally taken from our peoples, threatening the 

maintenance of our cultures and traditions and depriving us of the legacy we seek 

to leave our future generations. Meanwhile, a lucrative black market in our tangible 

cultural heritage thrives, and without explicit export restrictions many of our sacred 

and cultural items end up abroad. 

We support the STOP Act’s increased penalties for violations of the Native American Graves Protection and Repatriation Act (NAGPRA) and its explicit prohibition 

on exporting items obtained in violation of NAGPRA, the Archaeological Resources 

Protection Act (ARPA), and the Antiquities Act. The STOP Act does not extend the 

reach of these three laws to tribal cultural heritage that is not already protected, 

and thus it does not criminalize any currently legal domestic activity. Instead, it 

merely increases the deterrent effect of current law by imposing heightened penalties and provides that traffickers may not export their contraband. Additionally, 

the STOP Act creates a structure for federal facilitation of the voluntary return of 

tribal cultural heritage and engages tribes through a working group to provide input 

on implementation. 

We believe the STOP Act of 2017 will help end illegal trafficking in Native American tangible cultural heritage and bring home our sacred and cultural items that 

have been separated from our communities for far too long. We support the prompt 

passage of the STOP Act and thank the Committee for its attention to this important matter. 

Sincerely, 

83 

THOMAS P. O’ROURKE, Sr. Chairman. 

AFFILIATED TRIBES OF NORTHWEST INDIANS

November 8, 2017 

Chairman John Hoeven, 

Vice Chairman Tom Udall, 

Hart Senate Office Building, 

Washington, DC. 

RE: SUPPORT FOR THE SAFEGUARD TRIBAL OBJECTS OF PATRIMONY ACT OF

2017 

Dear Chairman Hoeven and Vice Chairman Udall: 

On behalf of the Affiliated Tribes of Northwest Indians (ATNI), I write to express 

our strong support for S. 1400, the Safeguard Tribal Objects of Patrimony Act of 

2017 (STOP Act). Formed in 1953 to serve Indian peoples, ATNI is a regional organization comprised of American Indians, Alaska Natives, and sovereign nations in 

the states of Washington, Idaho, Oregon, Montana, Nevada, California, and Alaska. 

Preservation of tribal cultural values is one of our primary goals and objectives, 

and the illicit trade in Native American tangible cultural heritage poses a grave 

threat to our cultural survival. Sacred and cultural objects from Northwest Nations 

are highly sought after and are often illegally trafficked in a lucrative black market. 

Many people see the inherent beauty in our cultural objects and seek to collect them 

for their artistic value alone, not understanding that these objects are so much more 

than beautiful to us. The protection of our tangible cultural heritage is essential for 

our cultural survival. Current federal law aims to protect Native American tangible 

cultural heritage, but it remains insufficient to deter these items’ removal, export, 

and sale or to provide a means of securing repatriation of stolen items. 

Thus, ANTI supports the STOP Act’s increased penalties for violations of the Native American Graves Protection and Repatriation Act (NAGPRA) and its explicit 

prohibition on exporting items obtained in violation of NAGPRA, the Archaeological 

Resources Protection Act (ARPA), and the Antiquities Act. The STOP Act does not 

extend the reach of these three laws to tribal culturalheritage that is not already 

protected, and thus it does not criminalize any currently legal domestic activity. Instead, it merely increases the deterrent effect of current law by imposing heightened 

penalties and provides that traffickers may not export their contraband. Additionally, the STOP Actcreates a structure for federal facilitation of the voluntary return 

of tribal cultural heritage and engages tribes through a working group to provide 

input on implementation.ANTI believes the STOP Act of 2017 will help end illegal 

trafficking in Native American tangible cultural heritage and bring home the sacred 

and cultural items that have been separated from tribal communities for too long. 

We urge the prompt passage of the STOP Act and thank the Committee for 

itsattention to this important matter. 

Sincerely, 

LEONARD FORSMAN, President. 

PORT GAMBLE S’KLALLAM TRIBE

November 1, 2017 

Chairman John Hoeven, 

Vice Chairman Tom Udall, 

Hart Senate Office Building, 

Washington, DC. 

RE: SUPPORT FOR THE SAFEGUARD TRIBAL OBJECTS OF PATRIMONY ACT OF

2017 

Dear Chairman Hoeven and Vice Chairman Udall: 

On behalf of the Port Gamble S’Klallam Tribe I write to express our strong support for S. 1400, the Safeguard Tribal Objects of Patrimony Act of 2017 (STOP Act). 

The Port Gamble S’Klallam Tribe, originally known as the Nux Skiai Yem or Strong 

People, are descendants of the Salish people who have been well-established in the 

Puget Sound basin and surrounding areas since 2400 B.C. In the late 1930s, the 

Port Gamble S’Klallam reservation, located on the northern tip of the Kitsap Peninsula in Washington State, was established. Many of the Tribe’s members, who total 

about one thousand, still live there today. 

Despite protections in current law, the illicit trade in Native American tangible 

cultural heritage continues to pose a grave threat to tribal cultural survival. Our 

84 

sacred and cultural items are illegally taken from our peoples, threatening the 

maintenance of our cultures and traditions and depriving us of the legacy we seek 

to leave our future generations. Meanwhile, a lucrative black market in our tangible 

cultural heritage thrives, and without explicit export restrictions many of our sacred 

and cultural items end up abroad. 

We support the STOP Act’s increased penalties for violations of the Native American Graves Protection and Repatriation Act (NAGPRA) and its explicit prohibition 

on exporting items obtained in violation of NAGPRA, the Archaeological Resources 

Protection Act (ARPA), and the Antiquities Act. The STOP Act does not extend the 

reach of these three laws to tribal cultural heritage that is not already protected, 

and thus it does not criminalize any currently legal domestic activity. Instead, it 

merely increases the deterrent effect of current law by imposing heightened penalties and provides that traffickers may not export their contraband. Additionally, 

the STOP Act creates a structure for federal facilitation of the voluntary return of 

tribal cultural heritage and engages tribes through a working group to provide input 

on implementation. 

We believe the STOP Act of 2017 will help end illegal trafficking in Native American tangible cultural heritage and bring home our sacred and cultural items that 

have been separated from our communities for far too long. We support the prompt 

passage of the STOP Act and thank the Committee for its attention to this important matter. 

Sincerely, 

JEROMY SULLIVAN, Chairman. 

NATIONAL CONGRESS OF AMERICAN INDIANS

November 2, 2017 

Chairman John Hoeven, 

Vice Chairman Tom Udall, 

Hart Senate Office Building, 

Washington, DC. 

RE: SUPPORT FOR THE SAFEGUARD TRIBAL OBJECTS OF PATRIMONY ACT OF

2017 

Dear Chairman Hoeven and Vice Chairman Udall: 

On behalf of the National Congress of American Indians (NCAI), the oldest, largest, and most representative organization of American Indian and Alaska Native 

tribal governments, we write to express our full support for S. 1400, the Safeguard 

Tribal Objects of Patrimony Act of 2017. 

NCAI has two resolutions that support the intent of the STOP Act. The resolutions call on the United States to address the issues of the theft and illegal sale 

of tribal cultural heritage and assist international repatriation efforts (SD–15–075 

and SAC–12–008). The intent of the STOP Act, to strengthen federal laws to protect 

our sacred and cultural items, is one of vital importance to NCAI and tribes all 

across Indian Country. 

In particular, NCAI supports the STOP Act’s increased penalties for violations of 

the Native American Graves Protection and Repatriation Act (NAGPRA) and its explicit prohibition on exporting items obtained in violation of NAGPRA, the Archaeological Resources Protection Act (ARPA), and the Antiquities Act. The STOP Act 

does not criminalize any currently legal domestic activity because it does not extend 

the reach of these existing laws. This legislation increases the deterrent effect of 

current law with heightened penalties and provides that traffickers may not export 

their contraband. Additionally, the STOP Act creates a much needed structure for 

the voluntary return of tribal cultural heritage and engages tribes through a working group to provide input on implementation. Setting up this Federal voluntary return structure and working group will ensure that these important objects return 

to the tribes to which they belong. 

NCAI believes the STOP Act of 2017 will help end illegal trafficking in Native 

American tangible cultural heritage and bring home our sacred and cultural items 

that have been separated from tribal communities for too long. We support the Committee’s consideration of the STOP Act and encourage the Committee to work to 

pass this important legislation. 

JAQUELINE PATA, Executive Director. 

Attachments 

85 

THE NATIONAL CONGRESS OF AMERICAN INDIANS—RESOLUTION #SAC–12–008 

TITLE: SUPPORT FOR INTERNATIONAL REPATRIATION

WHEREASwe, the members of the National Congress of American Indians of the 

United States, invoking the divine blessing of the Creator upon our efforts and purposes, in order to preserve for ourselves and our descendants the inherent sovereign 

rights of our Indian nations, rights secured under Indian treaties and agreements 

with the United States, and all other rights and benefits to which we are entitled 

under the laws and Constitution of the United States, to enlighten the public toward a better understanding of the Indian people, to preserve Indian cultural values, and otherwise promote the health, safety and welfare of the Indian people, do 

hereby establish and submit the following resolution; and 

WHEREASthe National Congress of American Indians (NCAI) was established in 

1944 and is the oldest and largest national organization of American Indian and 

Alaska Native tribal governments; and 

WHEREASNCAI member tribes, Native nations, and indigenous communities 

globally are facing a human rights violation whereby Native American ancestral remains, funerary objects, sacred objects, and objects of cultural patrimony were exhumed, excavated, stolen, exchanged, studied, or taken under duress, without the 

free, prior, and informed consent of Native nations and moved beyond the boundaries of Native Nations and the United States; and 

WHEREASthis human rights violation is perpetuated through the continued possession, display, study, or profit from our ancestral remains, funerary objects, sacred 

objects, and objects of cultural patrimony; and 

WHEREASthe U.N. Declaration on the Rights of Indigenous Peoples has been 

signed by all nation-states of the U.N. and it supports international repatriation in 

Article 12, which states: 

States shall seek to enable the access and/or repatriation of ceremonial objects 

and human remains in their possession through fair, transparent and effective 

mechanisms developed in conjunction with Indigenous peoples concerned; and 

WHEREASthe United States has consistently supported Native nations seeking 

to repatriate Native American ancestral remains, funerary objects, sacred objects, 

and objects of cultural patrimony, through U.S. Congress when it passed the NMAI 

Act in 1989 and the NAGPRA in 1990, and international repatriation has more recently been supported by the United States in a Statement of the United States to 

the Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples and the Organization of American States in 2008, which stated: 

Indigenous peoples should be able to maintain, protect, and have access to their 

religious and cultural sites and should have the collective right to repatriation 

of their human remains, ceremonial object and cultural patrimony; and 

WHEREASan estimated 1–2 million Native American ancestral remains, funerary objects, sacred objects, and objects of cultural patrimony currently exist in international repositories; and 

WHEREASNative nations are experiencing difficulty locating ancestral remains, 

funerary objects, sacred objects, and objects of cultural patrimony in international 

repositories due to various reasons, such as misidentification, no listed cultural affiliation, lack of available records from international repositories to Native nations; 

and no presently existing centralized notification system to Native nations; and 

WHEREASthe NCAI member tribes and the national community of Native nations have prioritized the need for the investigation and implementations of legal 

protections to ensure the repatriation of all ancestral remains, funerary objects, sacred objects, and objects of cultural patrimony taken, exhumed, excavated, exchanged, studied, and otherwise residing in repositories worldwide. 

NOW THEREFORE BE IT RESOLVED, that the NCAI hereby supports the 

NCAI member tribes and other Native nations in their efforts to repatriate from 

international repositories; and 

BE IT FURTHER RESOLVED, that the NCAI requests that the State Department, U.S. embassies, U.S. Senators, U.S. Representatives, and other U.S. governmental bodies make themselves available to assist Native nations in international 

repatriations, and that the U.S. government takes immediate action after consultation with Native nations to adequately address this five hundred-year-old, ongoing 

human rights issue; and 

BE IT FURTHER RESOLVED, that the NCAI will advocate on behalf of its 

member tribes and other Native nations to ensure international repatriation is addressed nationally and internationally; and 

86 

BE IT FURTHER RESOLVED, that the NCAI urges President Obama and future Presidents of the United States of American to call on Congress to address 

international repatriation; and 

BE IT FURTHER RESOLVED, that the NCAI will urge the U.N. to convene 

a special session and implement a formalized Working Group or Subcommittee comprised of indigenous community members to formally look into this human rights 

issue; and 

BE IT FURTHER RESOLVED, NCAI will work with the Association on American Indian Affairs (AAIA) and other organizations to collaborate with Native nations in support of international repatriation; and 

BE IT FINALLY RESOLVED, that this resolution shall be the policy of NCAI 

until it is withdrawn or modified by subsequent resolution. 

THE NATIONAL CONGRESS OF AMERICAN INDIANS—RESOLUTION #SD–15–075 

TITLE: SUPPORT THE EFFORTS TO STOP THE THEFT AND ILLEGAL SALE OF PUEBLO

CULTURAL PATRIMONY ITEMS BOTH DOMESTICALLY AND ABROAD

WHEREAS we, the members of the National Congress of American Indians of the 

United States, invoking the divine blessing of the Creator upon our efforts and purposes, in order to preserve for ourselves and our descendants the inherent sovereign 

rights of our Indian nations, rights secured under Indian treaties and agreements 

with the United States, and all other rights and benefits to which we are entitled 

under the laws and Constitution of the United States, to enlighten the public toward a better understanding of the Indian people, to preserve Indian cultural values, and otherwise promote the health, safety and welfare of the Indian people, do 

hereby establish and submit the following resolution; and 

WHEREASthe National Congress of American Indians (NCAI) was established in 

1944 and is the oldest and largest national organization of American Indian and 

Alaska Native tribal governments; and 

WHEREAScultural patrimony is vital to the continued existence and maintenance of tribal culture and ways of life; and 

WHEREAStribes have been disproportionately affected by the theft, illegal sale, 

and alienation of their cultural patrimony; and 

WHEREASin recent years the Pueblos of Acoma, Laguna, and the Hopi Tribes 

have been particularly targeted by illegal traffickers; and 

WHEREASthe illegal sale of these items of cultural patrimony have occurred domestically and internationally; and 

WHEREASthe sale of tribal cultural patrimony is in violation of Federal and 

Tribal laws; and 

WHEREASthe nature and descriptions of all tribal cultural patrimony is sensitive and to be treated with respect and confidentiality as appropriate. 

NOW THEREFORE BE IT RESOLVED, that the National Congress of American Indians (NCAI) hereby supports the efforts of all tribal nations to stop the theft 

and illegal sale of all tribal cultural patrimony both domestically and abroad; and 

BE IT FURTHER RESOLVED, that NCAI calls upon the Secretaries of the Department of the Interior, the Department of Justice, the Department of State, and 

the Attorney General of the United States to consult with the tribal nations in addressing the important issue of the theft and illegal sale of tribal cultural patrimony 

domestically and abroad, and to take affirmative action to stop these illegal practices; and 

BE IT FINALLY RESOLVED, that this resolution shall be the policy of NCAI 

until it is withdrawn or modified by subsequent resolution. 

WIYOT TRIBE

November 3, 2017 

Chairman John Hoeven, 

Vice Chairman Tom Udall, 

Hart Senate Office Building, 

Washington, DC. 

RE: SUPPORT FOR THE SAFEGUARD TRIBAL OBJECTS OF PATRIMONY ACT OF

2017 

Dear Chairman Hoeven and Vice Chairman Udall: 

On behalf of Wiyot Tribe, I write to express our strong support for S. 1400, the 

Safeguard Tribal Objects of Patrimony Act of 2017 (STOP Act). The Wiyot Tribe has 

been on the Northern California Coast since time immemorial. We have been protecVerDate Mar 15 2010 12:55 May 24, 2018 Jkt 030106 PO 00000 Frm 00090 Fmt 6601 Sfmt 6621 S:\DOCS\30106.TXT JACK
87 

tors and stewards of lands that we live on. Which was once the home of our ancestors Giant Redwood Forests. 

Despite protections in current law, the illicit trade in Native American tangible 

cultural heritage continues to pose a grave threat to tribal cultural survival. Our 

sacred and cultural items are illegally taken from our peoples, threatening the 

maintenance of our cultures and traditions and depriving us of the legacy we seek 

to leave our future generations. Meanwhile, a lucrative black market in our tangible 

cultural heritage thrives, and without explicit export restrictions many of our sacred 

and cultural items end up abroad. 

We support the STOP Act’s increased penalties for violations of the Native American Graves Protection and Repatriation Act (NAGPRA) and its explicit prohibition 

on exporting items obtained in violation of NAGPRA, the Archaeological Resources 

Protection Act (ARPA), and the Antiquities Act. 

The STOP Act does not extend the reach of these three laws to tribal cultural heritage that is not already protected, and thus it does not criminalize any currently 

legal domestic activity. Instead, it merely increases the deterrent effect of current 

law by imposing heightened penalties and provides that traffickers may not export 

their contraband. Additionally, the STOP Act creates a structure for federal facilitation of the voluntary return of tribal cultural heritage and engages tribes through 

a working group to provide input on implementation. 

We believe the STOP Act of 2017 will help end illegal trafficking in Native American tangible cultural heritage and bring home our sacred and cultural items that 

have been separated from our communities for far too long. We support the prompt 

passage of the STOP Act and thank the Committee for its attention to this important matter. 

Sincerely, 

TED HERNANDEZ, Cultural Director. 

OGLALA SIOUX TRIBE

November 7, 2017 

Chairman John Hoeven, 

Vice Chairman Tom Udall, 

Hart Senate Office Building, 

Washington, DC. 

RE: SUPPORT FOR THE SAFEGUARD TRIBAL OBJECTS OF PATRIMONY ACT OF

2017 

Dear Chairman Hoeven and Vice Chairman Udall: 

On behalf of the Oglala Sioux Tribe, I write to express our strong support for S. 

1400, the Safeguard Tribal Objects of Patrimony Act of 2017 (STOP Act). Our Tribe 

is part of the Great Sioux Nation with treaties with the United States of America. 

Our cultural patrimony and heritage is sacred to us. Just less than two weeks ago, 

we were forced to take swift action to prevent our sacred objects and items of cultural patrimony from being sold at a public auction. 

Despite protections in current law, the illicit trade in Native American tangible 

cultural heritage continues to pose a grave threat to tribal cultural survival. Our 

sacred and cultural items are illegally taken from our peoples, threatening the 

maintenance of our cultures and traditions and depriving us of the legacy we seek 

to leave our future generations. Meanwhile, a lucrative black market in our tangible 

cultural heritage thrives, and without explicit export restrictions many of our sacred 

and cultural items end up abroad. 

We support the STOP Act’s increased penalties for violations of the Native American Graves Protection and Repatriation Act (NAGPRA) and its explicit prohibition 

on exporting items obtained in violation of NAGPRA, the Archaeological Resources 

Protection Act (ARPA), and the Antiquities Act. The STOP Act does not extend the 

reach of these three laws to tribal cultural heritage that is not already protected, 

and thus it does not criminalize any currently legal domestic activity. Instead, it 

merely increases the deterrent effect of current law by imposing heightened penalties and provides that traffickers may not export their contraband. Additionally, 

the STOP Act creates a structure for federal facilitation of the voluntary return of 

tribal cultural heritage and engages tribes through a working group to provide input 

on implementation. 

We believe the STOP Act of 2017 will help end illegal trafficking in Native American tangible cultural heritage and bring home our sacred and cultural items that 

have been separated from our communities for far too long. We support the prompt 

passage of the STOP Act and thank the Committee for its attention to this important matter. 

88 

Sincerely, 

TROY ‘‘SCOTT’’ WESTON, President. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. TOM UDALL TO

HON. KURT RILEY

Question 1. You have said that the Committee should not think of sacred and ceremonial objects in property rights in terms like ‘‘title’’ and ‘‘ownership,’’ and that 

it is important to move beyond the Western view of property rights and consider 

this issue as one of human and culture rights. Could you elaborate on this idea? 

Answer. Items of tribal cultural heritage, including cultural patrimony and sacred 

objects, are so important to a tribe’s culture and wellbeing that they are considered 

to belong to the tribe as a whole. All cultures possess such items. For the Pueblo 

of Acoma (Pueblo), our items of cultural heritage have significant and tangible roles 

to play in sustaining our culture, our traditional calendar, our societies, our families, and our way of life. Many of these items are considered to possess a life of their 

own, and specific Pueblo members are tasked as their caretakers, caring for the 

items for the benefit of the entire Pueblo. Many of these items are of paramount 

importance, as they are understood to have both physical and metaphysical roles for 

the continuity of our people and the world. Our cultural heritage also helps us honor 

and uphold our values and to teach those values to our young people. So important 

are these items of cultural heritage that, under Pueblo traditional law, no one person may own them. Rather, they belong to the community as a whole, and their 

caretakers cannot sell them or take them from the Pueblo. It is impossible to fully 

communicate the harm and pain that removal of these items brings, and the damage their removal causes to our people. 

The global community already thinks of cultural heritage items in terms of 

human rights when considering those belonging to countries. This is evidenced by 

the outrage Americans would feel if the United States Constitution were sold. It is 

also evidenced by the international norms surrounding items of cultural heritage. 

For example, a 1970 international treaty entitled the UNESCO Convention on the 

Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, which the United States has signed onto, obligates its 

signatories to protect each other’s cultural heritage when exportation of such cultural heritage is illegal in the originating country. The UN Declaration on the 

Rights of Indigenous Peoples, which the United States supports, recognizes Indigenous peoples’ right to maintain their cultural property and ceremonial objects. It is 

time to bestow the same human rights concepts on Indian tribes’ cultural heritage 

within the domestic United States legal framework. 

Even under existing federal statutes, Indian tribes possess property rights to protected tribal cultural heritage. When an item qualifies for protection under the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 

§ § 3001–3013, 18 U.S.C. § 1170, the Archaeological Resources Protection Act 

(ARPA), 16 U.S.C. § § 470aa–470m, or the Antiquities Act, 16 U.S.C. § § 431–433 repealed and re-codified at 54 U.S.C. § § 320301–320303, 18 U.S.C. § 1866, the item 

cannot be said to legally belong to its possessor. Instead, these statutes provide for 

tribal ownership. See 25 U.S.C. § 3002; 16 U.S.C. § 470gg(b), (c). Tribal law also 

often provides for tribal ownership. 

Question 1a. Do you believe that passing the STOP Act will send a strong message that cultural items are different and warrant additional legal protections? 

Answer. Passage of the STOP Act will send a clear message to the collector community, Indian tribes, and other countries that the United States understands its 

duty to protect items of tribal cultural heritage and will take measures to carry out 

this duty. 

The STOP Act will strengthen existing federal statutes—NAGPRA, ARPA, and 

the Antiquities Act—that already signal the United States’ understanding of the importance of tribal cultural heritage. It will also provide the framework for voluntary 

repatriation outside of the prosecutorial context, indicating the Federal Government’s interest in facilitating return of tribal cultural heritage items as its main priority. In fact, in response to the introduction of the STOP Act, the Antique Tribal 

Art Dealers Association (ATADA) has already reacted by creating and implementing 

a voluntary repatriation program of its own. 

Significantly, the STOP Act will also send a clear message internationally regarding the importance of facilitating the return of tribal cultural heritage that has been 

trafficked abroad. The 1970 UNESCO Convention discussed above is not triggered 

unless exportation of the item of cultural heritage is illegal in the originating country. The United States is a signatory to the treaty and has taken steps domestically 

89 

to uphold its treaty obligations. The Convention on Cultural Property Implementation Act (CPIA), 19 U.S.C. § § 2601–2613, adopted import restrictions for protected 

cultural heritage from other countries. The CPIA, however, does not implement the 

exportation restrictions called for in the treaty. The CPIA does not make illegal the 

exportation of cultural heritage from the United States, including tribal cultural 

heritage. Thus, this provides other countries with an argument that the United 

States lacks the necessary exportation restrictions to trigger obligations under the 

treaty. The STOP Act’s explicit prohibition on exporting already-protected items of 

tribal cultural heritage clearly signals to the international community that these 

items warrant legal protections. 

Question 2. Since 1922, Santa Fe’s Indian Market draws hundreds of Native artists and thousands of visitors to the city every year. Buyers, collectors, and gallery 

owners come to Indian Market to take advantage of the opportunity to buy directly 

from Native artists. For some, sales from Indian Market amount can amount to an 

artist’s entire annual income. Are you concerned about the impact the STOP Act 

could have on Native artists’ livelihoods? 

Answer. The STOP Act will not negatively impact Native artisans’ livelihoods. 

The STOP Act does not discourage all sales of Native art. It does not create protections or penalties for any object that is not already protected under existing federal 

law—meaning these items were already illegal to sell domestically. The STOP Act’s 

increased penalties do not extend beyond items protected under NAGPRA, and its 

export restriction does not extend beyond items protected under NAGPRA, ARPA, 

and the Antiquities Act. The Native artisan and collector communities have been 

operating under these standards for decades. 

It is important to understand that existing federal statutes protect only specific 

types of items associated with tribes. Most items are not protected. NAGPRA, 

ARPA, and the Antiquities Act have specific statutory standards for the items they 

protect. Generally, the items must meet a threshold level of cultural significance 

and must have been taken from specific lands within specific time periods. Although 

tribes are involved in determining which items are protected, they cannot claim 

items are protected if they do not meet these statutory standards. 

The existing statutory standards within NAGPRA, ARPA, and the Antiquities Act 

are sufficiently clear, and they embody the clear intention of Congress. For example, 

when Congress enacted NAGPRA, it already considered the impact the statutory 

definitions in NAGPRA may have on tribal art, and it set forth its firm intention 

for statutes like NAGPRA to be a function of tribal understanding of an object’s ongoing cultural and religious significance. See, e.g. S. Rep. No. 101–473, at 8–10 

(1990). Courts have routinely upheld these standards, even when law enforcement 

officials or courts look to tribal law or tribal representatives to determine whether 

specific items meet the standards. See, e.g. United States v. Tidwell, 191 F.3d 976 

(9th Cir. 1999) (upholding NAGPRA); United States v. Carrow, 119 F.3d 796 (10th 

Cir. 1997) (upholding NAGPRA); see also United States v. Austin, 902 F.2d 743 (9th 

Cir. 1990) (upholding ARPA); United States v. Smyer, 596 F.2d 939 (10th Cir. 1979) 

(upholding Antiquities Act); but see United States v. Diaz, 499 F.2d 113 (9th Cir. 

1974) (finding Antiquities Act unconstitutionally vague). Providing even further protection to collectors, prosecution is not available unless the defendant knowingly engaged in activity made illegal under NAGPRA or ARPA. See 18 U.S.C. § 1170; 16 

U.S.C. § 470ee(d). And those engaging in the trafficking of cultural heritage items 

are expected to possess a certain level of knowledge regarding whether an item 

qualifies as protected. See, e.g., United States v. Tidwell, 191 F.3d 976, 980 (9th Cir. 

1999); United States v. Carrow, 119 F.3d 796, 803–04 (10th Cir. 1997). This is no 

different than other situations where persons who hold themselves out as having 

specialized knowledge are held to a higher standard of care. 

The STOP Act’s voluntary repatriation provision, which is structured to apply 

more broadly to items associated with tribes, does not have legal consequences. Instead, it merely provides a process for those who wish to return an item to a tribe. 

That this process is available will not legally affect whether a particular item qualifies as protected under NAGPRA, ARPA, or the Antiquities Act, including as amended by the STOP Act. Thus, it should not have negative impacts on the Native art 

market. 

However, some have proposed a certification or permitting system for implementing the STOP Act’s export restriction such that issues related to whether a particular object is federally protected do not require resolution at the border. We could 

support this. Creating such a system could provide more clarity to exporters as well 

as to Border Protection Customs agents about which objects are protected. Such a 

system is also called for by the 1970 UNESCO Convention. However, if a certification or permitting system is created, tribes should be involved in the drafting 

process. If the STOP Act is not amended to add such a provision, the STOP Act as 

90 

1S. 465, 115th Cong. § § 2(d)(1), (2), and (15). 2This table originates from vital event data provided by the National Center for Health Statistics (NCHS). 3 A table of the current estimates of the projected 2018 IHS American Indian and Alaska Native service and non-service population of the United States, by state. 

drafted already authorizes the Attorney General and the Secretary of Homeland Security, in consultation with the Secretary of the Interior, to prescribe rules and regulations to carry out the export restriction. Any guidelines necessary for Border Protection Customs agents could be created through such rules and regulations. 

Question 3. Often many of the cultural items found in French auction houses or 

other international markets are excavated unlawfully in remote areas on both public 

and tribal lands. The Native American Grave Protection and Repatriation Act 

(NAGPRA) and the Archeological Resources Protection Act were designed to stop the 

trafficking of cultural items domestically, but do not protect the lands where these 

items are found. Are certain sites, such as Bears Ears and Chaco Canyon, worthy 

of increased federal protections? 

Answer. In addition to items of tribal cultural heritage holding great cultural significance to tribes, locations themselves can also be very important to tribes. One 

way to protect tribes’ sacred sites is through the Antiquities Act, which gives the 

Federal Government authority to declare certain areas with historic significance national monuments and to provide them federal protections as such. 54 U.S.C. 

§ 320301. Another method for providing protection is placing the sacred site, if it is 

found eligible to be listed, on the National Register of Historic Places under the National Historic Preservation Act. 54 U.S.C. § 302706. These statutes are part of the 

federal government’s framework for protecting tribes’ cultural heritage, which is required by the federal government’s trust responsibility to Indian tribes, and they 

must be implemented faithfully. 

Additionally, NAGPRA, ARPA, and the Antiquities Act generally do not protect 

items removed from land that is not federal or tribal. See 25 U.S.C. § 3002(a); 16 

U.S.C. § 470ee(a); 18 U.S.C. § 1866(b). All land within the United States once belonged to tribes, and our sacred sites and vast tracts of our cultural landscape are 

therefore spread throughout the country. Restrictions on movement and access to 

key resource areas and holy places for traditional cultural practices have limited our 

ability to protect these areas. Much of this land is now in state or private hands, 

and the sacred sites and items of cultural heritage on this land are not federally 

protected. Our limitations in accessing these places do not make them any less important for our communities. Thus, finding ways to protect these areas is doubly important. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. TOM UDALL TO

ELIZABETH A. FOWLER

Oversight and Accountability 

Question 1. In your testimony, you stated that the Indian Health Service (IHS) 

has access to information that federal accountability organs needs in order to provide effective oversight of IHS. S. 465, however, would allocate federal taxpayer dollars to hire private contractors to conduct external audits of IHS to obtain this exact 

same information, 1 which is both wasteful and redundant. You additionally agreed 

to provide that information to the Senate Committee on Indian Affairs within 30 

days. Please provide information on the current IHS user population, and projected 

service population, by Service Area and Service Unit. 

Answer. Appendix 1 is a table of the current IHS user population estimates by 

service area and service unit for Fiscal Year (FY) 2017. The user population is defined as those patients that receive direct or contract healthcare services from an 

inpatient stay, outpatient visit, or a direct dental visit at an IHS or tribal facility 

during the previous three years. The user must also live within a Purchased Referred Care Delivery Area (PRCDA) to be counted in the user population. 

Appendix 2 2 is a table of the IHS projected service population that is currently 

based on the 2000 census bridged-race file and consists of American Indians and 

Alaska Natives (AI/ANs) identified to be eligible for IHS services. The service population is estimated by counting AI/ANs who reside in a PRCDA and constitutes approximately 58 percent of all AI/ANs residing in the United States. These people 

may or may not use IHS health services. The ratio (58 percent) is obtained by dividing the service population by the total United States AI/AN population (service plus 

non-service), which data is provided in Appendix 3 3. 

91 

4Statement of Elizabeth A. Fowler, ‘‘Legislative Hearing to Receive Testimony on S. 465 and 

S. 1400.’’ Senate Committee on Indian Affairs (Nov. 11. 2017), 6, at https:// 

www.indian.senate.gov/sites/default/files/HHSIHS%20testimony%20S%20465%20SCIA%20hearing%2011-8-17.pdf. 

Question 1a. Please provide information on the current available medical services 

offered at each IHS Service Unit and the most frequent services for which they receive Purchased/Referred Care (PRC) requests. 

Answer. Appendix 4 is a listing of current available medical services offered at 

each IHS Service Unit. 

Appendix 5 is a listing of the top ten inpatient and outpatient services by diagnosis category authorized by each IHS Federal facility between the years 2014– 

2017. 

Question 1b. Please provide information on IHS’s use of Buy Indian authority, and 

its progress toward implementing the recommendations of GAO–15–588. 

Answer. The Indian Health Service is committed to implementing GAO’s recommendation to: 

‘‘Clarify and codify their policies related to the priority for use of the Buy Indian 

Act, including whether the Buy Indian Act should be used before other set-aside 

programs.’’ 

IHS Acquisition staff, leadership and program officials recognize the importance 

of complying with Buy Indian Act responsibilities. IHS is in the process of updating 

its policies, including the Indian Health Manual (IHM), to clarify such responsibilities. 

Currently, IHS is able to use Buy-Indian in an open market setting. The Buy Indian Act is not used, however, for Government-Wide Acquisition Contracts (GWACs) 

such as General Services Administration (GSA) Alliant, National Aeronautics and 

Space Administration (NASA) Solutions for Enterprise-Wide Procurement (SEWP), 

National Institutes of Health (NIH) National Institutes of Health Information Technology Acquisition and Assessment Center (NIHITAAC), etc. Because the use of 

GWACs is prioritized government-wide, IHS plans to reach out to GSA and other 

agencies under the Category Management program to consider the incorporation of 

IHS’ Buy Indian responsibilities. 

‘‘Collect data on regional office’s implementation of key requirements, such as 

challenges to self-certification.’’ 

The IHS is also updating the Indian Health Manual to address challenges to selfcertification. IHS currently collects data pulled from the Federal Procurement Data 

System—Next Generation (FPDS–NG) to identify contract actions issued under the 

Buy Indian Act set-aside. Once the updated policy is finalized, as identified in the 

draft IHM, IHS will begin collecting monthly, quarterly and annual data related to 

contract actions that deviate from the Buy Indian Act and any challenges to Indian 

Economic Enterprise (IEE) self-certifications. 

‘‘Include Buy Indian Act contracts as a part of IHS’ regular acquisition review 

process.’’ 

IHS recently conducted Acquisition Management Reviews (AMRs) for FY 2017 to 

ensure procurement integrity and standardization throughout IHS Acquisitions. IHS 

plans to continue these reviews and implement the requirements under the Buy Indian Act as regular elements conducted on both Acquisition Peer/Supervisor review 

of contract actions and annual AMRs. 

IHS hit its highest mark ever under the Buy Indian Act during FY 2017 by obli- gating over $19.5 million to IEEs. This is an increase from FY 2016 and FY 2015 

which obligated just over $3 million in each of those years. We expect that finalization of the IHS Buy Indian Act IHM will improve these numbers moving forward 

and support economic development in Indian Country. 

Question 2. In your written testimony, you state that IHS has routine procedures 

for conducting statutorily required external audits and financial reporting. 4 Please 

briefly describe the types of independent financial auditing IHS completes each 

year. 

Answer. The IHS complies with Office of Management and Budget (OMB) Circular A–11 which includes standard Federal budget execution and budgetary resource reporting requirements, including quarterly reports that are publicly available. The IHS is also included in the Department of Health and Human Services’ 

(HHS or Department) annual Chief Financial Officers (CFO) Act audit that evaluates conformance with financial performance and disclosure standards and is performed by an external, nationally-known independent firm contracted by HHS. The 

Department publishes the results of these annual audits in the Agency Financial 

92 

5 Id. At 7–8. 

Report (AFR), which is prepared in accordance with requirements of OMB Circular 

A–136 and posted on the HHS website. For the 18th consecutive year, the Department obtained an unmodified (clean) opinion, meaning financial records and statements for FY 2017 were fairly and appropriately presented, and in accordance with 

Generally Accepted Accounting Principles (GAAP). 

Additionally, as required by the Federal Managers’ Financial Integrity Act 

(FMFIA) and OMB’s Circular A–123, Management’s Responsibility for Enterprise 

Risk Management and Internal Control, the IHS evaluates internal controls and financial management systems on an annual basis. A contracted external firm is used 

by the IHS to conduct and assist with these robust internal evaluations. The IHS’s 

resulting annual assurances are provided to HHS and included in the Departmentwide reasonable assurance that the financial information contained in the HHS AFR 

is complete, reliable, and accurate. 

Question 2a. Is there any overlap between the information already being audited 

and what would be required under S. 465? 

Answer. Yes, existing audit and assessments conducted under the CFO Act, 

FMFIA, and OMB’s Circular A–123 would overlap with assessments proposed under 

S. 465. For example, section (12)(B) contemplates ‘‘checks and balances’’ used ‘‘to assess potential fraud or misuse of amounts within the Service,’’ which is a key focus 

of existing activities such as A–123 that specifically evaluates internal controls and 

the CFO Act audit that looks at accuracy and accountability related to financial performance and reporting. Section (13)(D) of the bill considers ‘‘the auditing or evaluation process used by the Service to determine whether amounts are distributed and 

expended appropriately, including’’ financial records and ‘‘whether any auditing or 

evaluation is conducted in accordance with generally accepted accounting principles 

or other appropriate practices.’’ The IHS’s financial statements and reporting are 

evaluated through FMFIA and A–123 and audited as part of the HHS’ CFO Act 

audit, which tests for accuracy and conformance with GAAP. 

Question 2b. What percent of available resources does the Inspector General of 

HHS use to review IHS operations? 

Answer. The IHS would have to defer to the Department of Health and Human 

Services Office of Inspector General (OIG) for specific information on its available 

resources. However, the OIG’s FY 2018 Congressional Justification indicates that 

$76.5 million or 22 percent of its FY 2016 resources were directed toward HHS’ Public Health and Human Services programs, and of this amount two percent or $1.53 

million was allocated for oversight efforts for IHS. 

Question 3. You expressed concern in your written testimony with the significant 

financial resources that private audit contracts would require. 5 If the Secretary directs IHS to fund this cost, how would that affect health services to IHS patients? 

Answer. The magnitude and detail of the assessments proposed by the bill would 

likely require significant resources. The Department of Veterans Affairs (VA) conducted a similar type of assessment in response to the Veterans Access, Choice, and 

Accountability Act of 2014, and expended nearly $67 million in contractual costs 

alone. The IHS’s existing budget could not support a project of this scale and potential cost without a reduction to direct health services. 

Approximately 60 percent of the Agency’s total $5 billion budget authority is administered by Tribes and tribal organizations through Indian Self-Determination 

and Education Assistance Act (ISDEAA) agreements, and there is very little flexibility for reprogramming remaining resources to accomplish the proposed assessment. 

*The Appendix to this prepared statement has been retained in the Committee 

files* 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. TOM UDALL TO

DAVE FLUTE

Question 1. Many of the resources expended by the Inspector General at the Department of Health and Human Services are devoted to combatting Medicaid and 

Medicare fraud. Is the HHS Inspector General’s oversight activities enough to hold 

IHS accountable? 

Answer. The HHS Inspector General’s oversight activities are not enough to hold 

IHS accountable. The IHS operates in a bubble of no accountability. For example, 

although Federal statutes and executive orders require consultation on IHS budgets 

and funding for Indian Service Units, the IHS Great Plains Region took $2.2 Million 

93 

of our Sisseton Wahpeton Service Unit Funding for Hospitals and Clinics last year 

without notification or consultation with our Sisseton Wahpeton Sioux Tribe. Meanwhile, our Sisseton Wahpeton tribal members were denied medical services if they 

did not meet Priority 1, potential loss of life or limb. On May 9, 2018, at the HHS 

Secretary’s Tribal Advisory Committee Meeting, HHS Secretary Alex Azar agreed 

to restore that funding to SWO by the end of Fiscal Year 2018, but without his personal intervention we have no confidence that IHS would have corrected their 

wrongful taking of our funds. 

Question 1a. Should the Committee on Indian Affairs investigate ways to 

strengthen these independent reviews? 

Answer. The Senate Committee on Indian Affairs should pass S. 465 to strengthen the independent review of the IHS. 

Question 1b. Instead of paying for a one-time private assessment of the IHS, 

would it make more sense to create a division with the Office of Inspector General 

tasked with IHS oversight? 

Answer. It would make sense to create an Office of IHS Treaty Rights, Trust Responsibility, Consultation and Accountability within the Office of the Secretary of 

HHS. 

Question 2. IHS is funded at about 50 percent of need; this results in severe financial constraints and leads to life-threatening denial or deferral of care in some cases. 

Would directing money away from the IHS budget to pay for an audit be detrimental to the healthcare delivery for your tribal members? 

Answer. Medical Service provided by the IHS has been prepaid by Indian tribes 

and tribal members through the cession of millions of acres of land, where America’s 

major cities are located—for example, Minneapolis, MN, Fargo and Bismarck, ND, 

Sioux City, IA, Sioux Falls and Pierre, SD in our region. Through treaty, the United 

States agreed to provide medical services when these original Native lands were 

ceded. Accordingly, IHS should be fully funded—unless the United States prefers to 

return ceded lands. 

Question 2a. Would additional resources need to be appropriated to cover that 

cost? 

Answer. The IHS should receive full funding, so that our tribal members can receive the same level of health care through IHS as the general public is provided 

through Medicare. Medical care under the IHS should not be limited to coverage for 

Priority 1, loss of life or limb conditions, as it currently is because that violates our 

treaties with the United States and ignores the needs of Native peoples resulting 

in unnecessary suffering, injury, disease and death. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. TOM UDALL TO

JOHN TAHSUDA

NAGPRA Enforcement 

Question 1. In your written testimony, you stated that the Department of Interior 

believes that ‘‘vigorous enforcement’’ of the Native American Graves Protection and 

Repatriation Act (NAGPRA) is an ‘‘essential element’’ to combatting theft of items 

of cultural heritage. However, earlier this year, Secretary Zinke suspended all 

NAGPRA Review Committee Activities indefinitely. The Review Committee plays an 

important role under NAGRPA—it was established by Congress ‘‘to monitor and review implementation of the inventory and identification process and repatriation activities.’’ Does Secretary Zinke have the authority to suspend the NAGPRA Review 

Committee? If so, what is the source of that authority? 

Question 1a. What are the Secretary’s reasons for suspending the Review Committee? 

Question 1b. Does the Secretary have plans to reconvene the Review Committee 

so that it may pursue its statutorily mandated mission? If so, what are those plans? 

Answer to 1, 1a, and 1b. The Department’s ongoing review of advisory groups is 

critical to ensuring compliance with the Federal Advisory Committee Act. The Department is currently in the process of filling vacancies on the NAGPRA Review 

Committee. The NAGPRA Review Committee is not suspended and once they have 

quorum, they may meet following required public notice. 

Indian Country Recommendations 

Question 2. Over the past few years, tribal leaders have worked with federal agencies on a variety of specific recommendations to address protecting tribal patrimony, 

such as creating a multi-agency task force or working group that would develop a 

94 

comprehensive regulatory language and recommendations, seeking bilateral agreements with key foreign governments, and developing guidance for customs officials. 

Is the Department of the Interior aware of any of these recommendations? 

Question 2a. If so, is the Department planning to take up any of these recommendations? Or if not, can I get your commitment that you’ll follow up with tribal leaders and engage on this issue? 

Question 2b. What is the Department currently doing to combat the export of illicitly acquire cultural items? 

Question 2c. How is the Department engaging tribes to help repatriate their cultural heritage from abroad? 

Answer to 2, 2a, 2b, and 2c. The Department is aware of these interests and continues to work internally and with other federal agencies to explore how best to address these challenging issues in a meaningful way. 

Protecting Cultural Heritage 

Question 3. The Department’s Office of International Affairs is the primary point 

of contact for other agencies that conduct international activities, including the 

State Department. At an Albuquerque field hearing on this issue, I heard testimony 

that the lack of an explicit ban on items of cultural patrimony hindered the federal 

government’s negotiations to stop the sale of the Acoma Shield and to bring it home. 

Would an explicit ban on the export of items of cultural patrimony help strengthen 

the federal government’s hand in these types of negotiations? 

Answer. The Department is continuing to assess an array of options as to how 

best to address the challenges associated with the export of cultural patrimony. 

Effective Congressional Oversight 

Question 4. Since the beginning of the 115th Congress, I have sent Secretary 

Zinke 10 letters (7 addressed directly to him; three to President Trump) and submitted six submissions (questions for the record) to the Department’s hearing witnesses for response. I have not received a single response. At the November 8th 

hearing, you committed to me directly that you would address this unacceptable 

backlog of unanswered letters and QFRs. It has been two weeks since you made this 

commitment. What is the status of your review? What is the projected response 

time? 

Answer. The Department continues to work through the pending requests you 

identify in your question. In fact, I understand that you have recently received a 

response to several of your letters. We are committed to addressing the backlog as 

expeditiously as possible. 

Æ