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[Senate Hearing 115-236]
[From the U.S. Government Publishing Office]

                                                       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

                               __________

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                      COMMITTEE ON INDIAN AFFAIRS

                  JOHN HOEVEN, North Dakota, Chairman
                  TOM UDALL, New Mexico, Vice Chairman
JOHN BARRASSO, Wyoming               MARIA CANTWELL, Washington
JOHN McCAIN, Arizona                 JON TESTER, Montana,
LISA MURKOWSKI, Alaska               AL FRANKEN, Minnesota
JAMES LANKFORD, Oklahoma             BRIAN SCHATZ, Hawaii
STEVE DAINES, Montana                HEIDI HEITKAMP, North Dakota
MIKE CRAPO, Idaho                    CATHERINE CORTEZ MASTO, Nevada
JERRY MORAN, Kansas
     T. Michael Andrews, Majority Staff Director and Chief Counsel
       Jennifer Romero, Minority Staff Director and Chief Counsel
                            
                            
                            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
    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

 
                           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 decision-making 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, 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 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.

                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 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 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.
    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 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:]

  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 
Service. 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 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-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; 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 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 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 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 self-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\
---------------------------------------------------------------------------
    \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 ``on-reservation'' acquisitions within the original boundaries of 
the Lake Traverse Reservation. Public Law 93-491 (1974).
---------------------------------------------------------------------------
    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 Sisseton-Wahpeton 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 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 Indians. 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.

         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, 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 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.
    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.
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    \1\ The 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.
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    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 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\
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    \2\ Different 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.
    \3\ See 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.
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    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.
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    \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.
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    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.
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    \5\ The 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).
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    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 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 non-profit 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.
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    \6\ The 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-
spirits-home.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-indians-buy-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-masks-
idUSKBNOOR1DG20150611.
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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 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.
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.
    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.
    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.
    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.
    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.
    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.
    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.
    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, 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.
    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-to-government 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 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 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.]

                            A P P E N D I X

         Prepared Statement of John Molloy, President ATADA \1\
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    \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 [email protected], PO Box 
45628, Rio Rancho, NM 87174.
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    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\
---------------------------------------------------------------------------
    \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/bylaws-policies/
    \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-with-ceremonialobjects/
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \7\ For 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/?2017iarcss_repatriation-p:past_events, 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.
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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 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\
---------------------------------------------------------------------------
    \8\ Written 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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \9\ There 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.
---------------------------------------------------------------------------
    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.
    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\
---------------------------------------------------------------------------
    \10\ Connally v. General Const. Co., 269 U.S. 385, 391 (1926).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \11\ Native American Graves Protection and Repatriation Act, 25 
U.S.C.   3001-3013,  3001(3)(c)-(d) (1990).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \12\ See, 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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \13\ 16 U.S.C.  470bb(1).
---------------------------------------------------------------------------
    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 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\
---------------------------------------------------------------------------
    \14\ Zachariah 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-carve-walrustusks.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
    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\
---------------------------------------------------------------------------
    \20\ 18 U.S.C.  554(a) (emphasis added).

    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\
---------------------------------------------------------------------------
    \21\ As previously discussed, nothing in the language of ARPA or 
NAGPRA suggests that ``trafficking'' or ``transport'' of covered items 
does not include export.
    \22\ The 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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \23\ Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 
(1950).
    \24\ 19 U.S.C.  1600.
---------------------------------------------------------------------------
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 
understand what conduct is prohibited and in a manner that does not 
encourage arbitrary and discriminatory enforcement.'' \25\
---------------------------------------------------------------------------
    \25\ Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 
75 L.Ed.2d 903 (1983).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \26\ United States v. Diaz, 499 F.2d 113, 115 (9th Cir. 1974).
    \27\ For 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)
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \30\ 19 U.S.C.  2604 (emphasis added).

    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 United States Constitution's requirement that individuals 
receive sufficient fair notice and due process when they may be 
deprived of their private property.
---------------------------------------------------------------------------
    \31\ Governor 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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
    \34\ Safeguard Tribal Objects of Patrimony Act of 2017, H.R.3211, 
115th Cong.  5, (2017).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \35\ See United States v. Williams, 553 U.S. 285, 306 (2008).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \36\ Written 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.
---------------------------------------------------------------------------
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 testimony. 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 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.
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    \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).
---------------------------------------------------------------------------
    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.
    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.
---------------------------------------------------------------------------
    \1\ For more about GHA, see its website, http://global-
heritage.org/
---------------------------------------------------------------------------
    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\
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    \2\ The 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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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 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 all-inclusive 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.
---------------------------------------------------------------------------
    \4\ The 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).
---------------------------------------------------------------------------
    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.''
---------------------------------------------------------------------------
    \5\ Smith 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.)
    \6\ Goguen, 415 U.S. at 574.
---------------------------------------------------------------------------
    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 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.
    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 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 severely 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.
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 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.
---------------------------------------------------------------------------
    \1\ Safeguard Tribal Objects of Patrimony Act, S. 1400, 155th Cong. 
(2017)
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \2\ H.R. Con. Res. 122, 114th Cong. (2016) (enacted).
    \3\ Id. at  4.
---------------------------------------------------------------------------
    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 Cultural Property \4\ (``Convention'') of 
1970, which the United States Senate gave its unanimous advice and 
consent in 1972.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
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    \5\ Id. at art. 2(1).
    \6\ H.R. Con. Res. 122, supra note 2, at  4(4).
---------------------------------------------------------------------------
    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'!yati' 
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.
---------------------------------------------------------------------------
    \7\ Resolution of the Naabik'!yati' Committee of the Navajo Nation 
Council, NABIJY-51-12 (07/10/2012).
    \8\ See 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.'')
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \9\ Letter 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)
---------------------------------------------------------------------------
    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 directly. As a result, the Navajo 
Nation stakes on protecting sacred cultural items for monetary gain 
nationally and internationally increased.
---------------------------------------------------------------------------
    \10\ Resolution of the Naabik'!yati' Committee of the Navajo Nation 
Council, NABIMY-31-15 (05/28/2015).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \14\ S. 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \16\ S. 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \21\ Id. at  5(a).
    \22\ Id. at  5(b)(1).
    \23\ Id. at  5(b)(2).
    \24\ Id. at  5(b)(3).
---------------------------------------------------------------------------
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.
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \2\ Indian Health Care Improvement Act, 103(2009).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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 Winnebago-Omaha 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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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. 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.
---------------------------------------------------------------------------
    \5\ See: ``The Indian Health Service: Actions Needed to Improve 
Oversight of Quality of Care.'' Government Accountability Office. GAO-
17-181. January 2017.
---------------------------------------------------------------------------
    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 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.
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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'').
---------------------------------------------------------------------------
    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 
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.
---------------------------------------------------------------------------
    \3\ 25 U.S.C.  1641(c)(1)(B).
---------------------------------------------------------------------------
    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.
                                 ______
                                 
 Prepared Statement of Kate Fitz Gibbon, Executive Director, Committee 
                        for Cultural Policy \1\
---------------------------------------------------------------------------
    \1\ The Committee for Cultural Policy, POB 4881, Santa Fe, NM 
87502. www.committeeforculturalpolicy.org, 
[email protected].
---------------------------------------------------------------------------
    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?
---------------------------------------------------------------------------
    \2\ H.R.3211, 115th Cong.  3(5) (2017).
---------------------------------------------------------------------------
    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. President 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\
---------------------------------------------------------------------------
    \3\ Lingle v. Chevron USA Inc., 544 U.S. 528, 538 (2005).
    \4\ Lingle v. Chevron USA Inc., 544 U.S. 528, 538 (2005) (citing 
Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019 (1992)
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \5\ Penn Central Transp. Co. v. New York City, 438, U.S. 104, 124 
(1978);
    \6\ Lingle 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)).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \7\ See e.g., Good v. United States, 189 F.3d 1355 (Fed. Cir. 
1999), cert. denied, 529 U.S. 1053 (2000).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \8\ Penn Central Transp. Co. v. New York City, 438, U.S. 104, 129 
(1978).
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \9\ H.R. 3211, 115th Cong.  5, (2017).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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/bylaws-policies/
    \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/
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \14\ 16 U.S.C.  470aa(b).

---------------------------------------------------------------------------
    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; 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\
---------------------------------------------------------------------------
    \15\ H.R. REP. 96-311, *12,1979 US.CC.A.N. 1709, **1714

    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\
---------------------------------------------------------------------------
    \16\ 16 U.S.C.  470ee(f).

    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 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 
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.
                                 ______
                                 
  Prepared Statement of Hon. Russell Begaye, President, Navajo Nation
    Ya 1'at'eeh 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 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 hozho, 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 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.
---------------------------------------------------------------------------
    \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), Shinnecock Indian Nation (NY), Tunica-Biloxi Tribe of Louisiana 
(LA), and the Wampanoag Tribe of Gay Head (Aquinnah) (MA).
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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 IHS-run 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 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.
                                 ______
                                 
                     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 sophisticated 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 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 self-determination 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 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:

    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,
                                 Russell Begaye, President.
                                 ______
                                 
                                 
                                 
                                 ______
                                 
                                 
                                 
                                 ______
                                 
                                   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:

    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,
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 Tleeji (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 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,
                          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 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
   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
    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 protectors 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.
        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 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 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.
---------------------------------------------------------------------------
    \1\ S. 465, 115th Cong.   2(d)(1), (2), and (15).
---------------------------------------------------------------------------
    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\.
---------------------------------------------------------------------------
    \2\ This 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.

    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 self-certification. 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 obligating 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.
---------------------------------------------------------------------------
    \4\ Statement 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/HHS-IHS%20testimony%20S%20465%20SCIA%20hearing%2011-8-
17.pdf.
---------------------------------------------------------------------------
    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 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 Department-
wide 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?
---------------------------------------------------------------------------
    \5\ Id. At 7-8.
---------------------------------------------------------------------------
    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 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 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.

                                  [all]
```