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[Senate Report 107-258]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 575
107th Congress                                                   Report
                                 SENATE
 2d Session                                                     107-258

======================================================================

 
        ENHANCED PROTECTION OF OUR CULTURAL HERITAGE ACT OF 2002

                                _______
                                

               September 9, 2002.--Ordered to be printed

                                _______
                                

   Mr. Bingaman, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 2598]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 2598) to enhance the criminal penalties 
for illegal trafficking of archaeological resources, and for 
other purposes, having considered the same, reports favorably 
thereon with an amendment and recommends that the bill, as 
amended, do pass.
    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Enhanced Protection of Our Cultural 
Heritage Act of 2002''.

SEC. 2. ENHANCED PENALTIES FOR CULTURAL HERITAGE CRIMES.

    (a) Enhanced Penalty for Archaeological Resources.--Section 6(d) of 
the Archaeological Resources Protection Act of 1979 (16 U.S.C. 
470ee(d)) is amended by striking ``not more than 10,000'' and all that 
follows through the end of the subsection and inserting ``in accordance 
with title 18, United Codes, or imprisoned not more than ten years or 
both; but if the sum of the commercial and archaeological value of the 
archaeological resources involved and the cost of restoration and 
repair of such resources does not exceed $500, such person shall be 
fined in accordance with title 18, United States Code, or imprisoned 
not more than one year, or both.''
    (b) Enhanced Penalty for Embezzlement and Theft From Indian Tribal 
Organizations.--Section 1163 of title 18, United States Code, is 
amended by striking ``five years'' and inserting ``10 years''.
    (c) Enhanced Penalty for Illegal Trafficking in Native American 
Human Remains and Cultural Items.--Section 1170 of title 18, United 
States Code is amended--
          (1) in subsection (a), by striking ``or imprisoned not more 
        than 12 months, or both, and in the case of a second or 
        subsequent violation, be fined in accordance with this title, 
        or imprisoned not more than 5 years'' and inserting 
        ``imprisoned not more than 10 years''; and
          (2) in subsection (b), by striking ``imprisoned not more than 
        one year'' and all that follows through the end of the 
        subsection and inserting ``imprisoned not more than 10 years, 
        or both; but if the sum of the commercial archaeological value 
        of the cultural items involved and the cost of restoration and 
        repair of such items does not exceed $500, such person shall be 
        fined in accordance with this title, imprisoned not more than 
        one year, or both.''

                                Purpose

    The purpose of S. 2598 is to enhance the penalties for 
illegal trafficking of archaeological resources.

                          Background and Need

    S. 2598 will increase the maximum penalties for violations 
of three statutes that protect the cultural and archaeological 
history of the American people, particularly Native Americans. 
The statutes amended are the Archaeological Resources 
Protection Act (``ARPA''), 16 U.S.C. 470ee; the Native American 
Graves Protection and Repatriation Act (``NAGPRA''), 18 U.S.C. 
1170; and the statute prohibiting theft from Indian Tribal 
Organizations, 18 U.S.C. 1163.
    The United States Sentencing Commission (``Commission'') 
has unanimously recommended amendment of these statutes to 
strengthen their maximum sentences. Following a two-year review 
of cultural heritage resource crimes, the Commission recently 
approved a separate sentencing guideline. This guideline 
recognizes that offenses against cultural heritage resources 
are more serious due to the essentially irreplaceable nature of 
the resources involved. Because individuals, communities, and 
nations identify themselves through emotional and spiritual 
connections to places and objects, the effect of cultural 
heritage resource crimes transcends mere monetary 
considerations. In addition to the serious nature of the 
offenses, the conduct of many of the offenders, professional 
looters who are dangerous to law enforcement and innocent 
passers-by, requires increased proportional punishment.
    While the serious nature of cultural heritage crimes merits 
correspondingly severe punishment, the purpose of this 
legislation is not to increase sentences for these crimes 
across the board. Instead, the legislation seeks to eliminate 
three significant disparities among the statutory maximum 
sentences for various crimes against property and cultural 
heritage resources. The Commission concluded that the three 
sentencing disparities frustrate Congress's objectives of 
proportionality and the elimination of unwarranted disparity, 
as set forth in the Sentencing Reform Act of 1984.
    First, NAGPRA and ARPA limit sentences for the first 
offense to one or two years, respectively, regardless of the 
amount of harm caused by the offender's conduct. In contrast, 
general property crime statutes, such as Theft and Destruction 
of Government Property at 18 U.S.C. 641 and 1361, do not limit 
sentences for the first offense.
    The second disparity is that both ARPA and NAGPRA, together 
with the Federal statute concerning theft from tribal 
organizations, have five-year maximum sentences, whereas the 
theft and destruction of government property statutes have ten-
year limits. The third disparity is that even statutes 
specifically protecting cultural resources have different 
maximum sentences. While the ARPA and NAGPRA maximum sentences 
are five years, the 1994 Federal law proscribing museum theft 
has a ten-year maximum sentence, similar to general property 
crimes.
    In order to address these disparities, the Commission has 
recommended two changes: (1) eliminating the sentencing limits 
in ARPA and NAGPRA for first violations, and (2) raising the 
maximum sentences for ARPA, NAGPRA, and theft from tribal 
organizations to ten years, consistent with other statutes for 
crimes against property and cultural resources. By making these 
changes, S. 2598 would authorize punishment for serious 
cultural resources crimes in proportion to the severity of the 
crimes involved.

                          Legislative History

    At the business meeting on July 31, 2002, the Committee on 
Energy and Natural Resources ordered S. 2598, as amended, 
favorably reported.

                        Committee Recommendation

    The Committee on Energy and Natural Resources, in open 
business session on July 31, 2002, by a unanimous vote of a 
quorum present, recommends that the Senate pass S. 2598, if 
amended as described herein.

                          Committee Amendment

    During the consideration of S. 2598, the Committee adopted 
an amendment in the nature of a substitute. The substitute 
amendment ensures that maximum penalties are increased under 
the Archaeological Resources Protection Act (ARPA), 16 U.S.C. 
470ee(d), and for cultural items under the Native American 
Graves Protection and Repatriation Act (NAGPRA), 18 U.S.C. 
1170, but that misdemeanor offenses are retained, so that 
relatively minor offenses will continue to be prosecuted while 
more significant crimes will receive more appropriate felony 
penalties.
    The substitute amendment is explained in detail in the 
section-by-section analysis, below.

                      Section-by-Section Analysis

    Section 1 entitles the Act the ``Enhanced Protection of Our 
Cultural Heritage Act of 2002.''
    Section 2(a) amends section 6(d) of the Archaeological 
Resources Protection Act of 1979 (16 U.S.C. 470ee(d)) by 
increasing maximum criminal penalties to a $100,000 fine and 10 
years imprisonment. The existing maximum criminal penalties are 
a $100,000 fine and five years imprisonment, with a lower 
maximum fine and sentence for the first offense. The amendment 
also provides that if the sum of the commerical and 
archaeological value of the archaeological resources involved 
and the cost of restoration and repair of such resources does 
not exceed $500, maximum sentences shall be fines in accordance 
with title 18, United States Code, imprisonment not more than 
one year, or both.
    Subsection (b) amends the statute governing embezzlement 
and theft from tribal organizations, 18 U.S.C. 1163, by 
increasing the maximum sentence from five to ten years.
    Subsection (c) amends 18 U.S.C. 1170, the Native American 
Graves and Repatriation Act. This subsection increases the 
maximum sentence for trafficking in the human remains of Native 
Americans in violation of NAGPRA to 10 years imprisonment. The 
existing maximum is just one year for a first offense, and five 
years for subsequent convictions. This subsection likewise 
increases the maximum sentence for trafficking in Native 
American cultural items in violation of NAGPRA to 10 years 
imprisonment. For these crimes as well, the existing maximum is 
just one year for a first offense, and five years for 
subsequent convictions. Finally, for violations involving 
Native American cultural items, this subsection provides that 
if the sum of the commerical and archaeological value of the 
cultural items involved and the cost of restoration and repair 
of such items does not exceed $500, maximum sentences shall be 
fines in accordance with title 18, imprisonment not more than 
one year, or both.

                   Cost and Budgetary Considerations

    The following estimate of the cost of this measure has been 
provided by the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, August 15, 2002.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2598, the Enhanced 
Protection of Our Cultural Heritage Act of 2002.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Megan 
Carroll.
            Sincerely,
                                         Robert A. Sunshine
                                    (For Dan L. Crippen, Director).
    Enclosure.

               congressional budget office cost estimate

S. 2598--Enhanced Protection of Our Cultural Heritage Act of 2002

    CBO estimates that implementing S.2598 would not 
significantly affect the federal budget. The bill could affect 
direct spending and receipts; therefore, pay-as-you-go 
procedures would apply, but we estimate that any such effects 
would total less than $500,000 a year. S. 2598 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would impose no costs on 
state, local, or tribal governments.
    S. 2598 would increase maximum fines and imprisonment terms 
for certain crimes against Indian tribes and for illegal 
trafficking under the Archaeological Resources Protection Act 
and the Native American Graves Protection and Repatriation Act. 
Based on information from the U.S. Sentencing Commission, CBO 
estimates that the bill's provisions probably would affect 
fewer than 50 cases each year. Because the new penalties would 
apply to a small number of offenders, we estimate that any 
increase in costs for prison operations would not be 
significant and would be subject to the availability of 
appropriated funds.
    Because those prosecuted and convicted under S. 2598 might 
be subject to increased criminal fines, the federal government 
might collect additional finds under the bill. Collections of 
such fines are recorded in the budget as governmental receipts 
(revenues), which are deposited in the Crime Victims Fund and 
later spent. CBO expects that any increased receipts and direct 
spending would be negligible because of the small number of 
cases involved.
    The CBO staff contact for this estimate is Megan Carroll. 
This estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

                      Regulatory Impact Evaluation

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 2598. The bill is not a regulatory measure in 
the sense of imposing Government-established standards or 
significant responsibilities or private individuals and 
businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 2598.

                        Executive Communications

    The pertinent legislative report received by the Committee 
from the Department of the Interior setting forth Executive 
agency recommendations relating to S. 2598 is set forth below. 
Also set forth below is a May 20, 2002 letter from the United 
States Sentencing Commission to the Chairman and Ranking Member 
of the Committee, setting forth the Commission's views on the 
subject matter of S. 2598.

                   U.S. Department of the Interior,
                                   Office of the Secretary,
                                     Washington, DC, July 25, 2002.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: This letter sets forth the views of the 
Department of the Interior on S. 2598, Enhanced Protection of 
Our Cultural Heritage Act of 2002.
    The Department generally supports the enhancement of 
statutory penalties for cultural resource crimes, however, it 
is unclear whether this bill will, in all instances, strengthen 
cultural heritage protection.
    S. 2598 would propose to change the statutory penalties for 
illegal trafficking under the Archaeological Resources 
Protection Act (ARPA; 16 U.S.C. 470ee), for embezzlement and 
theft from Indian tribal organizations (18 U.S.C. 1163), and 
for illegal trafficking in Native American human remains and 
cultural items under the Native American Graves Protection and 
Repatriation Act (NAGPRA; 18 U.S.C. 1170).
    It is unclear whether S. 2598 would strengthen ARPA. 
Currently, ARPA, as read in conjunction with 18 U.S.C. 3571, 
provides for a graduated system that allows for citation of a 
Class A misdemeanor as well as a Class D or E felony, depending 
on the value of the resource and whether or not the offense is 
a first or subsequent offense. As currently drafted, S. 2598 
would eliminate such a graduated system, and instead provided 
only the option to charge an ARPA offense as a Class C felony. 
Although increasing maximum fines and imprisonment terms would 
seem to strengthen ARPA eliminating the option to charge a 
crime as a misdemeanor, in fact, may result in fewer 
prosecutions. U.S. Attorneys Offices may be reluctant to 
prosecute a case if the defendant's conduct was not so 
egregious as to normally warrant felony prosecution. Similarly, 
juries may be reluctant to hold a defendant responsible if a 
felony conviction appears overly harsh in a particular case. 
Thus, the Department supports strengthening, the maximum 
penalties, while retaining a graduated system that will provide 
the U.S. Attorneys Office with the discretion to charge a 
defendant with an offense that more appropriately fits the 
conduct involved. In addition, it is unclear what type of 
violations the ARPA provision in S. 2598 intends to address. 
Although the heading appears to apply only to illegal 
trafficking under ARPA, the subsection amended would actually 
cover other crimes under ARPA as well. We would like an 
opportunity to further review the bill and to work with the 
Committee and the U.S. Department of Justice to craft 
appropriate language that would more clearly accomplish our 
mutual goals.
    Earlier this year, the Department expressed its support for 
the establishment of a sentencing guideline for the protection 
of cultural heritage resources. After a two-year review, the 
United States Sentencing Commission had found that existing 
sentencing guidelines inadequately covered a variety of 
offenses involving the theft of, damage to, destruction of, or 
illicit trafficking in cultural resources, including national 
memorials, archeological resources, national parks, and 
national historic landmarks. Because individuals, communities, 
and nations identify themselves through intellectual, 
emotional, and spiritual connections to places and objects, the 
effect of cultural resources crimes sometimes transcends mere 
monetary considerations. Consequently, the Commission 
transmitted to Congress on May 1, 2002 a proposed guideline 
amendment that takes into account the transcendent value of 
these irreplaceable resources, and punishes in a proportionate 
way the particular offense characteristics associated with the 
range of cultural resources crimes. These amendments will take 
effect on November 1, 2002, unless Congress passes legislation 
disapproving them.
    Though most Americans may think of looting as a crime that 
takes place during times of civil unrest, the Department has 
come to know better. Surprisingly, cultural resource crimes 
occur frequently and have been occurring with increased 
frequency on our federal lands. One Bureau of Land Management 
archeologist in Utah estimates that 80 percent of the surface 
artifacts at one site have disappeared within the last two to 
three years. We have seen a shift in the type of looter who 
commits these crimes. Countless magazine and newspaper articles 
and television shows discussing cultural resources has led to a 
dramatic drop in offenses committed by ``the casual looter,'' a 
recreationist who picks up an artifact while hiking or damages 
an archeological site. Although this type of theft and damage 
still occurs, these incidents are uncommon. A more recent trend 
is the theft and damage of cultural resources by ``professional 
looters,'' hard-core looters who sell the resources for 
monetary gain and often have criminal histories, usually drug-
related or violence related. Professional looters educate 
themselves about the locations of archeological sites and the 
kinds of artifacts and grave goods that may be found at those 
sites. Many of them are technologically savvy, using Global 
Positioning Systems (GPS) and conducting extensive computer 
research to locate specific sites.
    In order to maximize the impact of our law enforcement 
efforts, we have joined forces with other federal agencies to 
educate law enforcement officers regarding the pervasive 
criminal activity. Until we are able to completely deter such 
criminal conduct, we must work hard to use the criminal and 
civil enforcement tools at our disposal to diminish the looting 
of our national and Indian treasures. In working closely with 
the Department of Justice, United States Attorneys, and federal 
law enforcement officials, we have found that effective 
prosecutions under ARPA and NAGPRA receive positive publicity 
and raise the public awareness of the seriousness of these 
crimes. We believe that such prosecutions can have a positive 
deterrent effect.
    The Office of Management and Budget advises that there is 
no objection to the presentation of this report from the 
standpoint of the Administration's program.
            Sincerely,
                            Patricia Lynn Scarlett,
                            Assistant Secretary for Policy,
                                             Management and Budget.
                                ------                                

                                U.S. Sentencing Commission,
                                      Washington, DC, May 20, 2002.
Re: Penalties for Cultural Heritage Resource Crimes

Hon. Jeff Bingaman,
Chairman, Senate Committee on Energy and Natural Resources, Dirksen 
        Senate Office Building, Washington, DC.
Hon. Frank Murkowski,
Ranking Member, Senate Committee on Energy and Natural Resources, 
        Dirksen Senate Office Building, Washington, DC.
    Dear Senators Bingaman and Murkowski: On behalf of the 
Sentencing Commission, and pursuant to the Commission's 
statutory charge under 28 U.S.C. Sec. Sec. 994(r) and 
995(a)(20), I am writing to recommend that Congress consider 
enacting legislation to increase the maximum statutory 
penalties for three federal crimes involving cultural heritage 
resources. These changes are warranted because the offenses are 
serious and the proposed increases would correspond to the 
punishment levels in the Commission's new guideline for 
cultural heritage resource offenses.
    These three statutes--the Archaeological Resources 
Protection Act (ARPA), 16 U.S.C. Sec. 470ee; the Native 
American Graves Protection and Repatriation Act (NAGPRA), 18 
U.S.C. Sec. 1170; and Theft from Indian Tribal Organizations, 
18 U.S.C. Sec. 1163, are basic tools of federal prosecution for 
offenses involving cultural heritage resources.\4\ Increased 
statutory maxima for these offenses will give full effect to 
the operation of the new sentencing guideline for cultural 
heritage resource offenses that the Commission will send to 
Congress on May 1, 2002. We therefore recommend elimination of 
the 12- and 24-month ceiling for first offenses under NAGPRA 
and ARPA, respectively, and adoption of a ten year statutory 
maximum for all three statutes (currently five years).
---------------------------------------------------------------------------
    The criminal provisions of ARPA, enacted in 1979, prohibit: (1) the 
unlawful excavation, removal, damage or defacement of archaeological 
resources located on public or Indian lands; (2) the sale, receipt, 
exchange, or purchase of archaeological resources unlawfully obtained 
from public or Indian lands; and, (3) the interstate or foreign sale, 
receipt, purchase, exchange, or transportation of archaeological 
resources removed or obtained in violation of State or local law.
    The criminal provisions of NAGPRA, enacted in 1990, prohibit the 
sale, purchase, use or transportation for sale or profit of Native 
American Human Remains and Native American cultural items obtained from 
public or Indian lands. The crime of Theft from Tribal Organizations, 
18 U.S.C. Sec. 1163, prohibits, among other things, the theft or 
conversion of goods, assets, or other property belonging or entrusted 
to the custody or care of an Indian tribal organization or its 
officers, employees, or agents.
---------------------------------------------------------------------------
    The Commission recently completed a two year examination of 
cultural heritage resource crimes and found that existing 
sentencing guidelines are inadequate for the wide variety of 
federal crimes involving the theft of, damage to, destruction 
of, or illicit trafficking in cultural heritage resources. 
Cultural heritage resources include national memorials, 
landmarks and parks, together with archaeological and other 
historic resources specifically dedicated to the preservation 
of the nation's heritage. Because individuals, communities, and 
nations identify themselves through intellectual, emotional, 
and spiritual connections to places and objects, the effect of 
cultural heritage resource crimes transcends mere monetary 
considerations. The Commission has determined that a separate 
guideline is needed that specifically recognizes both the 
federal government's longstanding obligation and unique role in 
preserving these resources and the harm caused to the nation 
and its inhabitants when its history is degraded through the 
destruction of cultural heritage resources.
    As a result, the Commission has approved a separate 
sentencing guideline which reflects the fact that offense 
involving cultural heritage resources are more serious because 
they involve essentially irreplaceable resources and cause 
intangible harm to society. The actual and potential cases 
which the Commission considered in its review range from 
vandalism and terrorism at historic landmarks and cemeteries to 
looting and theft of archaeological resources and human remains 
from federal and Indian lands.
    Upon close scrutiny the Commission recognized that 
treatment of these offenses against unique and irreplaceable 
resources under traditional property offense guidelines would 
not be adequate to reflect the significance of the resources 
and the concomitant harm to the identity of the nation and its 
communities. Not only are the offenses themselves very serious 
and deserving of substantially more punishment, but the conduct 
of many of the offenders, professional looters who are well 
armed and dangerous to law enforcement and innocent passers-by, 
requires increased proportional punishment.
    For example, currently under the general guideline for 
theft and property damage at Sec. 2B1.1, a sentence for 
vandalism to the Vietnam Memorial would be determined primarily 
by the amount of intended or actual pecuniary harm. If a 
federal administration building sustains the same amount of 
harm caused by vandals, the same punishment would result under 
current law. The Commission has determined that the magnitude 
of the harm caused to a national memorial and landmark is 
greater precisely because of the symbolic and historic nature 
of the object of theoffense conduct, together with the fact 
that such resources are unique, nonfungible, and irreplaceable.
    Accordingly, the Commission has taken steps to ensure that 
the punishment for such cultural heritage resource crimes takes 
such factors into consideration by promulgating a new guideline 
at Sec. 2B1.5 for this unique category of offenses. (See 
enclosure.) This new guideline will account for the fact that 
the offense involves items and locations specially designated 
by Congress over the years for preservation and education about 
the nation's heritage. The Commission has also been mindful of 
the potential for terrorist attacks against symbols of our 
nation and has provided for proportionate increases in 
punishment in the event that such violence occurs in connection 
with cultural heritage resources.
    Surprisingly, when the Commission scrutinized the panoply 
of federal statutes that are used to prosecute offenses 
involving both property and cultural heritage resources, it 
found three significant disparities among the various statutory 
maxima for these offenses. These disparities impede Congress's 
ultimate objectives of proportionality and the elimination of 
unwarranted disparity, as enunciated in the Sentencing Reform 
Act of 1984. The examples below illustrate these disparities.
    First, two cultural heritage resource statutes subordinate 
the amount of harm caused by the offender to the number of the 
offender's convictions under the statute. ARPA has one year and 
two year statutory maxima (based on a $500 threshold) for the 
first offense, and NAGPRA has a one year maximum for the first 
violation, irrespective of the amount of harm caused by the 
offender's conduct. In contrast, general property crime 
statutes, such as Theft and Destruction of Government Property 
at 18 U.S.C. Sec. Sec. 641 and 1361, do not have a statutory 
cap based on whether the offense was the defendant's first 
violation of the particular statute.
    The second disparity is that both ARPA and NAGPRA, together 
with the federal law prohibiting theft from tribal 
organizations, have five year statutory ceiling, whereas the 
theft and destruction of government property statutes have ten 
year limits. The third disparity is that even statutes 
specifically protecting cultural heritage resources have 
different statutory maxima. Thus while the ARPA and NAGPRA 
statutory maxima are both five years, the 1994 federal law 
proscribing museum theft at 18 U.S.C. Sec. 668 has a ten year 
statutory maximum, similar to the general property crimes.
    The Commission suggests eliminating these caps in ARPA and 
NAGPRA for first violations and raising the statutory maximum 
for ARPA, NAGPRA, and Theft from Tribal Organizations to ten 
years. This change will not only achieve consistency with other 
federal property crimes but will also eliminate potential 
obstacles to the proportional punishment of cultural heritage 
resource crimes and allow for the full implementation of the 
sentencing guideline structure that the Commission has 
determined is appropriate for such crimes.
    A few illustrations may suffice to underscore the problem. 
A looter in the Civil War Battlefield at Manassas has violated 
the Archaeological Resources Protection Act (ARPA) by 
disturbing human remains while collecting $10,000 worth of 
buttons, belt buckles, and rifle shells to sell at an antique 
show, causing $30,000 in damage to the battlefield's terrain. 
Under the Commission's new guideline, this defendant qualifies 
for a sentence of between 27 and 33 months (without chapter 
three adjustments) based on the magnitude of the harm as 
measured by the aggravating factors that the Commission has 
delineated. This offender's possible sentence would be twenty-
four months under the statutory maximum if it were his first 
ARPA conviction.
    Similarly, a defendant who violates NAGPRA by stealing and 
attempting to sell Native American ceremonial masks and skulls 
unearthed from a burial site on tribal lands that have a 
commercial value on the black market of $150,000, and who 
threatens the use of a firearm when apprehended by law 
enforcement agents, qualifies for a sentence under the new 
guideline of 51 to 63 months. Nonetheless, if it is the 
defendant's first NAGPRA conviction, his sentence is capped at 
12 months. Even if prosecuted and convicted under 18 U.S.C. 
Sec. 1163 (Theft from Tribal Organizations), its five year 
statutory maximum comes into play and prevents the sentencing 
judge both from applying the high end of the guideline range, 
if appropriate, and from adjusting upwards to account for the 
defendant's prior criminal history.
    In the actual case of a sophisticated and notorious 
professional looter of ancient Anasazi archaeological sites who 
operated for over a decade in remote federal lands, both in 
national parks and national forests, the seventy-eight month 
sentence calculated in 1997 under Sec. 2B1.1 United States v. 
Shumway, 112 F.3d 1413 (10th Cir. 1997), could double to 
between 135 and 168 months under the new guideline at 
Sec. 2B1.5. Such a defendant, if convicted only of an ARPA 
violation, will not serve this appropriately severe penalty 
reflecting the magnitude of harm because of ARPA's five-year 
statutory maximum. Such an egregious violator would not even 
serve his full guideline sentence under the ten year statutory 
maximum for a single count of damage to government property (18 
U.S.C. Sec. 641). Raising ARPA's statutory maximum to 
correspond to other federal crime statutes would not constrain 
the operation of the new sentencing guideline which the 
Commission has promulgated.
    The Commission has taken an important step to ensure that 
damage to our nation's cultural heritage resources is 
appropriately punished, for example, by requiring that the use 
of a destructive device to accomplish such a crime receive more 
severe punishment and providing enhanced punishment for other 
aggravating factors in the offender's conduct. This goal cannot 
be completely achieved, however, if the statutory ceiling for 
these offenses is too low to permit a full application of the 
guideline criteria for fair and proportionate punishment. For 
other general property crimes, such as interstate computer or 
car theft, the statutory maximum does not generally restrict 
the application of the sentencing guidelines.
    I respectfully urge the Congress to consider the changes we 
have recommended and will be pleased to provide you or your 
staff with additional information that may assist you in your 
consideration.
            Sincerely,
                                     Judge Diana E. Murphy,
                                                             Chair.
    Enclosure.

                          2. CULTURAL HERITAGE

    Synopsis of Amendment: This amendment provides a new 
guideline at Sec. 2B1.5 (Theft of, Damage to, Destruction of, 
Cultural Heritage Resources; Unlawful Sale, Purchase, Exchange, 
Transportation, or Receipt of Cultural Heritage Resources) for 
offenses involving cultural heritage resources. This amendment 
reflects the Commission's conclusion that the existing 
sentencing guidelines for economic and property destruction 
crimes are inadequate to punish in an appropriate and 
proportional way the variety of federal crimes involving the 
theft of, damage to, destruction of, or illicit trafficking in, 
cultural heritage resources. The Commission has determined that 
a separate guideline, which specifically recognizes both the 
federal government's long-standing obligation and role in 
preserving such resources, and the harm caused to both the 
nation and its inhabitants when its history is degraded through 
the destruction of cultural heritage resources, is needed.
    Cultural heritage resources include national memorials, 
landmarks, parks, archaeological and other historic and 
cultural resources, specifically designated by Congress and the 
President for the preservation of the cultural heritage of this 
nation and its ancestors. The federal government acts either as 
a trustee of the public generally, or as a fiduciary on behalf 
of American Indians, Alaska Natives and Native Hawaiian 
Organizations, to protect these cultural heritage resources. 
Because individuals, communities, and nations identify 
themselves through intellectual, emotional, and spiritual 
connections to places and objects, the effects of cultural 
heritage resource crimes transcend mere monetary 
considerations. Accordingly, this new guideline takes into 
account the transcendent and irreplaceable value of cultural 
heritage resources and punishes in a proportionate way the 
aggravating conduct associated with cultural heritage resource 
crimes.
    This guideline incorporates into the definition of 
``cultural heritage resource'' a broad range of existing 
federal statutory definitions for various historical, cultural, 
and archaeological items. If a defendant is convicted of an 
offense that charges illegal conduct involving a cultural 
heritage resource, this guideline will apply, irrespective of 
whether the conviction is obtained under general property theft 
or damage statutes, such as laws concerning the theft and 
destruction of government property, 18 U.S.C. Sec. 641, 
interstate sale or receipt of stolen property, 18 U.S.C. 
Sec. Sec. 2314-15, and smuggling, 18 U.S.C. Sec. Sec. 541 et 
seq., or under specific cultural heritage statutes, such as the 
Archaeological Resources Protection Act of 1979, 16 U.S.C. 
Sec. 470ee (ARPA), the criminal provisions of the Native 
American Graves Protection and Repatriation Act (NAGPRA) at 18 
U.S.C. Sec. 1170, and 18 U.S.C. Sec. 668, which concerns theft 
from museums. In addition, if a more general offense is charged 
that is referenced in Appendix A to Sec. 2B1.1, this guideline 
will apply by cross reference if the offense conduct involves a 
cultural heritage resource and results in a higher offense 
level.
    This new guideline has a base offense level of level 8, 
which is two levels higher than the base offense level for 
general economic and property destruction crimes. The higher 
base offense level represents the Commission's determination 
that offenses involving cultural heritage resources are more 
serious because they involve essentially irreplaceable 
resources and cause intangible harm to society.
    The new guideline also provides that the monetary value of 
the cultural heritage resource is an important, although not 
the sole, factor in determining the appropriate punishment. The 
Commission has elected not to use the concept of ``loss'', 
which is an integral part of the theft, fraud, and property 
destruction guideline at Sec. 2B1.1 (Theft, Property 
Destruction, and Fraud), because cultural heritage offenses do 
not involve the same fungible and compensatory values embodied 
in ``loss.'' Instead, under this new guideline, value is to be 
based on commercial value, archaeological value, and the cost 
of restoration and repair. These methods of valuation are 
derived from existing federal law. See 16 U.S.C. Sec. 470ee(d); 
43 C.F.R. Sec. 7.14.
    The Commission has recognized that archaeological value 
shall be used in calculating the value of archaeological 
resources but has provided flexibility for the sentencing court 
to determine whether either commercial value or the cost of 
restoration and repair, or both, should be added to 
archaeological value in determining the appropriate value of 
archaeological resources. For all other types of cultural 
heritage resources covered by this guideline, the Commission 
has provided flexibility for the sentencing court regarding 
whether and when to use all or some of the methods of 
valuation, as appropriate, for calculating the total value 
associated with the harm to the particular resource caused by 
the defendant's offense conduct. The value of the cultural 
heritage resource is then referenced to the monetary table 
provided at Sec. 2B1.1(b)(1) in order to determine appropriate 
and proportionate offense levels in a manner consistent with 
the overall guidelines structure.
    The new guideline provides five additional specific offense 
characteristics to provide proportionate enhancements for 
aggravating conduct that may occur in connection with cultural 
heritage resource offenses. In providing enhancements for these 
nonpecuniary aggravating factors, the Commission seeks to 
ensure that the nonquantifiable harm caused by the offense to 
affected cultural groups, and society as a whole, is adequately 
reflected in the penalty structure.
    The first two of these enhancements, at subsections (b)(2) 
and (b)(3), relate to whether the offense involves a place or 
resource that Congress has designated for special protection. A 
two level enhancement attaches if the offense involves a 
resource from one of eight locations specifically designated by 
Congress for historic commemoration, resource preservation, or 
public education. These are the national park system, national 
historic landmarks, national monuments, national memorials, 
national marine sanctuaries national cemeteries, sites 
contained on the World Heritage List, and museums.
    Consistent with the definition in 18 U.S.C. Sec. 668(a)(1), 
museums are defined broadly to include all organized and 
permanent institutions, with an essentially educational or 
aesthetic purpose, which exhibit tangible objects to the public 
on a regular schedule. Adoption of this definition reflects the 
Commission's recognition that cultural heritage resource crimes 
affecting institutions dedicated to the preservation of 
resources and associated knowledge, irrespective of the 
institution's size, ownership, or funding, deprive the public 
and future generations of the opportunity to learn and 
appreciate the richness of the nation's heritage. Similarly, 
this enhancement reflects the Commission's assessment that 
damage to the other listed places degrades not only the 
resource itself but also the historical and cultural aspects 
which the resource commemorates.
    An additional two level enhancement attaches to offense 
conduct that involves any of a number of specified resources, 
including human remains and other resources that have been 
designated by Congress for special treatment and heightened 
protection under federal law. Funerary objects, items of 
cultural patrimony, and sacred objects are included because 
they are domestic cultural heritage resources protected under 
NAGPRA. See 25 U.S.C. Sec. 3001. Cultural property, designated 
archaeological and ethnological material, and pre-Columbian 
monumental and architectural sculpture and murals are included 
in the enhancement because these are cultural heritage 
resources of foreign provenance for which Congress has chosen, 
in the implementation of international treaties and bilateral 
agreements, to impose import restrictions. See 19 U.S.C. 
Sec. Sec.  2092, 2606, and 2607.
    This guideline also provides a two level enhancement at 
subsection (b)(4) if the offense was committed for pecuniary 
gain or otherwise involved a commercial purpose. This increase 
is based on a determination that offenders who are motivated by 
financial gain or other commercial incentive are guideline at 
Sec. 2B1.5 if the resulting offense level under it would be 
greater than under Sec. 2B1.1. When a case involving a cultural 
heritage resource is sentenced under Sec. 2B1.1, loss 
attributable to that cultural heritage resource is to be 
determined using the definition of ``value of the cultural 
heritage resource'' from Sec. 2B1.5.
    The Commission recognizes that the full implementation of 
this new guideline for the most serious offenders often will be 
limited in its application because of the extremely low 
statutory maxima of some of the potentially applicable 
statutes, such as the criminal provisions of ARPA, NAGPRA, and 
18 U.S.C. Sec. 1163 (covering the theft of tribal property). 
Currently ARPA has either a one year or two year statutory 
maximum term of imprisonment for the first offense, depending 
on whether the value exceeds $500, and NAGPRA has a statutory 
maximum term of imprisonment of one year for the first offense 
irrespective of value. These statutes all have five year 
statutory maximum terms of imprisonment for second and 
subsequent offenses. Consequently, the statutory ceiling may 
limit the full range of proportionate guideline sentencing, but 
the Commission has promulgated this new guideline to cover the 
wide variety of potential offense conduct that can occur in 
connection with cultural heritage resources. The Commission has 
recommended to Congress that the statutory maximum terms of 
imprisonment for these offenses be raised appropriately.

Sec. 2B1.1. LARCENY, EMBEZZLEMENT, AND OTHER FORMS OF THEFT; OFFENSES 
                    INVOLVING STOLEN PROPERTY; PROPERTY DAMAGE OR 
                    DESTRUCTION; FRAUD AND DECEIT; OFFENSES INVOLVING 
                    ALTERED OR COUNTERFEIT INSTRUMENTS OTHER THAN 
                    COUNTERFEIT BEARER OBLIGATIONS OF THE UNITED STATES

           *       *       *       *       *       *       *

    (c) Cross References

           *       *       *       *       *       *       *

    (4) If the offense involved a cultural heritage resource, 
apply Sec. 2B1.5 (Theft of Damage to, or Destruction of 
Cultural Heritage Resources, Unlawful Sale, Purchase, Exchange, 
Transportation or Receipt of Cultural Heritage Resources), if 
the resulting offense level is greater than that determined 
above.

           *       *       *       *       *       *       *

Commentary

           *       *       *       *       *       *       *

Application Notes:

    1. Definitions.--For purposes of this guideline:
    ``Cultural heritage resource'' has the meaning given that 
term in Application Note 1 of the Commentary to Sec. 2B1.5 
(Theft of Damage to, or Destruction of Cultural Heritage 
Resources, Unlawful Sale, Purchase, Exchange, Transportation or 
Receipt of Cultural Heritage Resources).

           *       *       *       *       *       *       *

    2. Loss Under Subsection (b)(1).--This application note 
applies to the determination of loss under subsection (b)(1).

           *       *       *       *       *       *       *

    (F) Special Rules.--Notwithstanding subdivision (A), the 
following special rules shall be used to assist in determining 
loss in the cases indicated:

           *       *       *       *       *       *       *

    (vii) Value of Cultural Heritage Resources.--In a case 
involving a cultural heritage resource, loss attributable to 
that cultural heritage resource shall be determined in 
accordance with the rules for determining the ``value of the 
cultural heritage resource'' set forth in Application Note 2 of 
the Commentary to Sec. 2B1.5.

           *       *       *       *       *       *       *

Sec. 2B1.5. THEFT OF, DAMAGE TO, OR DESTRUCTION OF, CULTURAL HERITAGE 
                    RESOURCES; UNLAWFUL SALE, PURCHASE, EXCHANGE, 
                    TRANSPORTATION, OR RECEIPT OF CULTURAL HERITAGE 
                    RESOURCES

    (a) Base Offense Level: 8
    (b) Specific Offense Characteristics
    (1) If the value of cultural heritage resource (A) exceeded 
$2,000 but did not exceed $5,000, increase by 1 level; or (B) 
exceeded $5,000, increase by the number of levels from the 
table in Sec. 2B1.1 (Theft, Property Destruction, and Fraud) 
corresponding to that amount.
    (2) If the offense involved a cultural heritage resource 
from, or that, prior to the offense, was on, in, or in the 
custody of (A) the national park system; (B) a National 
Historic Landmark; (C) a national monument or national 
memorial; (D) a national marine sanctuary; (E) a national 
cemetery; (F) a museum; or (G) the World Heritage List, 
increase by 2 levels.
    (3) If the offense involved a cultural heritage resource 
constituting (A) human remains; (B) a funerary object; (C) 
cultural patrimony; (D) a sacred object; (E) cultural property; 
(F) designated archaeological or ethnological material; or (G) 
a pre-Columbian monumental or architectural sculpture or mural, 
increase by 2 levels.
    (4) If the offense was committed for pecuniary gain or 
otherwise involved a commercial purpose increase by 2 levels.
    (5) If the defendant engaged in a pattern of misconduct 
involving cultural heritage resources, increase by 2 levels.
    (6) If a dangerous weapon was brandished or its use was 
threatened increase by 2 levels. If the resulting offense level 
is less than level 14; increase to level 14.
    (c) Cross Reference
    (F) ``National park system'' has the meaning given that 
term in 16 U.S.C. Sec. 1c(a).
    (G) ``World Heritage List'' means the World Heritage List 
maintained by the World Heritage Committee of the United 
Nations Educational, Scientific, and Cultural Organization in 
accordance with the Convention Concerning the Protection of the 
World Cultural and Natural Heritage.
    (4) Enhancement in Subsection (b)(3).--For purpose of 
subsection (b)(3):
    (A) ``Cultural patrimony'' has the meaning given that term 
in 25 U.S.C. Sec. 3001(3)(D) see also 43 C.F.R. 10.2(d)(4).
    (B) ``Cultural property'' has the meaning given the term in 
19 U.S.C. Sec. 2601(6).
    (C) ``Designate archaeological or ethnological material'' 
means archaeological or ethnological material described in 19 
U.S.C. Sec. 2601(7) (see also 19 U.S.C. Sec. Sec. 2601(2) and 
2604).
    (D) ``Funerary object means an object that, as a part of 
the death rite or ceremony or a culture, was placed 
intentionally, at the time of death or later, with or near 
human remains.
    (E) ``Human remains'' (i) means the physical remains of the 
body of a human; and (ii) does not include remains that 
reasonably may be determined to have been freely disposed of or 
naturally shed by the human from whose body the remains were 
obtained, such as hair made into ropes or nets.
    (F) ``Pre-Columbian monumental or architectural sculpture 
or mural'' has the meaning given the term in 19 U.S.C. 
Sec. 2095(3).
    (G) ``Sacred object'' has the meaning given that term in 25 
U.S.C. Sec. 3001(3)(C) (see also 43 C.F.R. Sec. 10.2(d)(3).
    (5) Pecuniary Gain and Commercial Purpose Enhancement Under 
Subsection (b)(4)
    (A) ``For Precuniary Gain.--For purposes of subsection 
(b)(4) ``for pecuniary gain'' means for receipt of, or in 
anticipation of receipt of anything of value, whether monetary 
or in goods or services. Therefore, offense committed for 
precuniary gain include both monetary and barter transactions, 
as well as activities designed to increase gross revenue.
    (B) Commercial Purpose.--The acquisition of cultural 
heritage resources for display to the public, whether for a fee 
or donation and whether by an individual or an organization, 
including a governmental entity, a private non-profit or 
organization, or a private non-profit organization, shall be 
considered to involve a ``commercial purpose'' for purposes of 
subsection (b)(4).
    6. Pattern of Misconduct Enhancement Under Subsection 
(b)(5).--
    (A) Definition.--For purposes of subsection (b)(5), 
``pattern of misconduct involving cultural heritage 
resources''; means two or more separate instances of offense 
conduct involving a cultural heritage resource that did not 
occur during the course of the offense (i.e., that did not 
occur during the course of the instant offense of conviction 
and all relevant conduct under Sec. 1B1.3 (Relevant Conduct). 
Offense conduct involving a cultural heritage resource may be 
considered for purposes of subsection (b)(5) regardless of 
whether the defendant was convicted of that conduct.
    (B) Computation of Criminal History Points.--A conviction 
taken into account under subsection (b)(5) is not excluded from 
consideration of whether that conviction receives criminal 
history points pursuant to Chapter Four, Part A (Criminal 
History).
    7. Dangerous Weapons Enhancement Under Subsection (b)(6).--
For purposes of subsection (b)(6), ``brandished'' and 
``dangerous weapon'' have the meaning given those terms in 
Application Note 1 of the Commentary to Sec. 1B1.1 (Application 
Instructions).
    8. Multiple Counts.--For purposes of Chapter Three Part D 
(Multiple Counts), multiples counts involving cultural heritage 
offense covered by this guideline are grouped together under 
subsection (d) of Sec. 3D1.2 (Groups of Closely Related 
Counts). Multiple counts involving cultural heritage offenses 
covered by this guideline and offenses covered by other 
guidelines are not to be grouped under Sec. 3D1.2(d).
    9. Upward Departure Provision.--There may be cases in which 
the offense level determined under this guideline substantially 
understates the seriousness of the offense. In such cases an 
upward departure may be warranted. For example, an upward 
departure may be warranted if (A) in addition to cultural 
heritage resources, the offense involved theft of, damage to, 
or destruction of, items that are not cultural heritage 
resources (such as an offense involving the theft from a 
national cemetery of lawnmowers and other administrative 
property in addition to historic gravemarkers or other cultural 
heritage resources); or (B) the offense involved cultural 
heritage resource that has profound significance to cultural 
identity (e.g., the Statue of Liberty, or the Liberty Bell).

Sec. 2Q2.1. OFFENSES INVOLVING FISH, WILDLIFE, AND PLANTS

           *       *       *       *       *       *       *

    (c) Cross Reference
    (1) If the offense involved a cultural heritage resource, 
apply Sec. 2B.5 (Theft of, Damage to, or Destruction of, 
Cultural Heritage Resource; Unlawful Sale, Purchase, Exchange, 
Transportation, or Receipt of Cultural Heritage Resources), if 
the resulting offense level is greater than that determined 
above.

           *       *       *       *       *       *       *

Commentary

           *       *       *       *       *       *       *

Application Notes:

           *       *       *       *       *       *       *

    6. For purposes of subsection (c)(1), ``cultural'' heritage 
resource has the meaning given that term in Application Note 1. 
of the Commentary to Sec. 2BI:5 (Theft of, Damage to, or 
Destruction of Cultural Heritage Resources; Unlawful Sale; 
Purchase, Exchange, Transportation or Receipt of Cultural 
Heritage Resources).

           *       *       *       *       *       *       *

Sec. D1.2 GROUPS OF CLOSELY RELATED COUNTS

    (d) * * *
    Offenses covered by the following guidelines are to be 
grouped under this subsection:
    Sec. Sec. 2B1.1, 2B1.4, 2B1.5, 2B4.1, 2B5.1, 2B6.1;

           *       *       *       *       *       *       *

                      APPENDIX A--STATUTORY INDEX

    16 U.S.C. Sec. 433  2B1.1
    16 U.S.C. Sec. 470ee  Sec. 2B1.5
    16 U.S.C. Sec. 668(a)  2B1.5, 2Q2.1
    16 U.S.C. Sec. 707(b)  2B1.5, 2Q2.1

           *       *       *       *       *       *       *

    18 U.S.C. Sec. 541  2B1.5, 2T3.1
    18 U.S.C. Sec. 542  2B1.5, 2T3.1
    18 U.S.C. Sec. 543  2B1.5, 2T3.1
    18 U.S.C. Sec. 544  2B1.5, 2T3.1
    18 U.S.C. Sec. 545  2B1.5, 2Q2.1. 2T3.1
    18 U.S.C. Sec. 546  2B1.5

           *       *       *       *       *       *       *

    18 U.S.C. Sec. 641  2B1.1, 2B1.5

           *       *       *       *       *       *       *

    18 U.S.C. Sec. 661  2B1.1, 2B1.5

           *       *       *       *       *       *       *

    18 U.S.C. Sec. 662  2B1.1,2B1.5

           *       *       *       *       *       *       *

    18 U.S.C. Sec. 666(a)(1)(A)  2B1.1, 2B1.5

           *       *       *       *       *       *       *

    18 U.S.C. Sec. 668  2B1.12B1.5

           *       *       *       *       *       *       *

    18 U.S.C. Sec. 1152  2B1.5
    18 U.S.C. Sec. 1153  2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 
2A2.2, 2A2.3, 2A3.1, 2A3.2, 2A3.3, 2A3.4, 2A4.1, 2B1.1, 2B1.5, 
2B2.1, 2B3.1, 2K1.4

           *       *       *       *       *       *       *

    18 U.S.C. Sec. 1163  2B1.1, 2B1.5

           *       *       *       *       *       *       *

    18 U.S.C. Sec. 1170  2B1.5

           *       *       *       *       *       *       *

    18 U.S.C. Sec. 1361  2B1.1, 2B1.5

           *       *       *       *       *       *       *

    18 U.S.C. Sec. 2232  2B1.5, 2J1.2

           *       *       *       *       *       *       *

    18 U.S.C. Sec. 2314  2B1.1, 2B1.5

           *       *       *       *       *       *       *

    18 U.S.C. Sec. 2315  2B1.1, 2B1.5

           *       *       *       *       *       *       *

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill S. 2598, as ordered reported, are shown as follows 
(existing law proposed to be omitted is enclosed in brackets, 
new matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

                            PUBLIC LAW 96-95

    Section 1. This Act may be cited as the ``Archaeological 
Resources Protection Act of 1979''.

           *       *       *       *       *       *       *

    Sec. 6. (a) * * *

           *       *       *       *       *       *       *

    (d) Any person who knowingly violates, or counsels, 
procures, solicits, or employs any other person to violate, any 
prohibition contained in subsection (a), (b), or (c) of this 
section shall, upon conviction, be fined [not more than $10,000 
or imprisoned not more than one year, or both: Provided, 
however, That if the commercial or archaeological value of the 
archaeological resources involved and the cost of restoration 
and repair of such resources exceeds the sum of $500, such 
person shall be fined not more than $20,000 or imprisoned not 
more than two years, or both. In the case of a second or 
subsequent such violation upon conviction such person shall be 
fined not more than $100,000, or imprisoned not more than five 
years, or both.] in accordance with title 18, United States 
Code, or imprisoned not more than ten years or both; but if the 
sum of the commercial and archaeological value of the 
archaeological resources involved and the cost of restoration 
and repair of such resources does not exceed $500, such person 
shall be fined in accordance with title 18, United States Code, 
or imprisoned not more than one year, or both
                              ----------                              

                             18 U.S.C. 1163

    Embezzlement and theft from Indian tribal organizations.
    Whoever embezzles, steals, knowingly converts to his use or 
the use of another, willfully misapplies, or willfully permits 
to be misapplied, any of the moneys, funds, credits, goods, 
assets, or other property belonging to any Indian tribal 
organization or intrusted to the custody or care of any 
officer, employee, or agent of an Indian tribal organization; 
or
    Whoever, knowing any such moneys, funds, credits, goods, 
assets, or other property to have been so embezzled, stolen, 
converted, misapplied or permitted to be misapplied, receives, 
conceals, or retains the same with intent to convert it to his 
use or the use of another----
    Shall be fined under this title, or imprisoned not more 
than [five years] 10 years or both; but if the value of such 
property does not exceed the sum of $1,000 he shall be fined 
under this title, or imprisoned not more than one year, or 
both.
    As used in this section, the term ``Indian tribal 
organization'' means any tribe, band, or community of Indians 
which is subject to the laws of the United States relating to 
Indian affairs or any corporation, association, or group which 
is organized under any of such laws.
                              ----------                              

                             18 U.S.C. 1170

    Illegal trafficking in Native American human remains and 
cultural items.
    (a) Whoever knowingly sells, purchases, uses for profit, or 
transports for sale or profit, the human remains of a Native 
American without the right of possession to those remains as 
provided in the Native American Graves Protection and 
Repatriation Act shall be fined in accordance with this title, 
[or imprisoned not more than 12 months, or both, and in the 
case of a second or subsequent violation, be fined in 
accordance with this title, or imprisoned not more than 5 
years] imprisoned not more than 10 years or both.
    (b) Whoever knowingly sells, purchases, uses for profit, or 
transports for sale or profit any Native American cultural 
items obtained in violation of the Native American Grave 
Protection and Repatriation Act shall be fined in accordance 
with this title, [imprisoned not more than one year, or both, 
and in the case of a second or subsequent violation, be fined 
in accordance with this title, imprisoned not more than 5 
years, or both] imprisoned not more than 10 years, or both; but 
if the sum of the commercial and archaeological value of the 
cultural items involved and the cost of restoration and repair 
of such items does not exceed $500, such person shall be fined 
in accordance with this title, imprisoned not more than one 
year, or both.

                                  
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