116TH CONGRESS 

2D SESSION S. 2165 

AN ACT 

To enhance protections of Native American tangible cultural 

heritage, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 
2 

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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Safeguard Tribal Ob3 jects of Patrimony Act of 2020’’. 

4 SEC. 2. PURPOSES. 

5 The purposes of this Act are— 

6 (1) to carry out the trust responsibility of the 

7 United States to Indian Tribes; 

8 (2) to increase the maximum penalty for actions 

9 taken in violation of the Native American Graves 

10 Protection and Repatriation Act (25 U.S.C. 3001 et 

11 seq.) (including section 1170 of title 18, United 

12 States Code, as added by that Act), in order to 

13 strengthen deterrence; 

14 (3) to stop the export, and facilitate the inter15 national repatriation, of cultural items prohibited 

16 from being trafficked by the Native American 

17 Graves Protection and Repatriation Act (25 U.S.C. 

18 3001 et seq.) (including section 1170 of title 18, 

19 United States Code, as added by that Act) and ar20 chaeological resources prohibited from being traf21 ficked by the Archaeological Resources Protection 

22 Act of 1979 (16 U.S.C. 470aa et seq.) by— 

23 (A) explicitly prohibiting the export; 

24 (B) creating an export certification system; 

25 and 
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1 (C) confirming the authority of the Presi2 dent to request from foreign nations agree3 ments or provisional measures to prevent irre4 mediable damage to Native American cultural 

5 heritage; 

6 (4) to establish a Federal framework in order 

7 to support the voluntary return by individuals and 

8 organizations of items of tangible cultural heritage, 

9 including items covered by the Native American 

10 Graves Protection and Repatriation Act (25 U.S.C. 

11 3001 et seq.) (including section 1170 of title 18, 

12 United States Code, as added by that Act) and the 

13 Archaeological Resources Protection Act of 1979 (16 

14 U.S.C. 470aa et seq.); 

15 (5) to establish an interagency working group 

16 to ensure communication between Federal agencies 

17 to successfully implement this Act, the Native Amer18 ican Graves Protection and Repatriation Act (25 

19 U.S.C. 3001 et seq.) (including section 1170 of title 

20 18, United States Code, as added by that Act), the 

21 Archaeological Resources Protection Act of 1979 (16 

22 U.S.C. 470aa et seq.), and other relevant Federal 

23 laws; 

24 (6) to establish a Native working group of In25 dian Tribes and Native Hawaiian organizations to 
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1 assist in the implementation of this Act, the Native 

2 American Graves Protection and Repatriation Act 

3 (25 U.S.C. 3001 et seq.) (including section 1170 of 

4 title 18, United States Code, as added by that Act), 

5 the Archaeological Resources Protection Act of 1979 

6 (16 U.S.C. 470aa et seq.), and other relevant Fed7 eral laws; 

8 (7) to exempt from disclosure under section 552 

9 of title 5, United States Code (commonly known as 

10 the ‘‘Freedom of Information Act’’)— 

11 (A) information submitted by Indian 

12 Tribes or Native Hawaiian organizations pursu13 ant to this Act; and 

14 (B) information relating to an Item Re15 quiring Export Certification for which an export 

16 certification was denied pursuant to this Act; 

17 and 

18 (8) to encourage buyers to purchase legal con19 temporary art made by Native artists for commercial 

20 purposes. 

21 SEC. 3. DEFINITIONS. 

22 In this Act: 

23 (1) ARCHAEOLOGICAL RESOURCE.—The term 

24 ‘‘archaeological resource’’ means an archaeological 

25 resource (as defined in section 3 of the Archae-
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1 ological Resources Protection Act of 1979 (16 

2 U.S.C. 470bb)) that is Native American. 

3 (2) CULTURAL AFFILIATION.—The term ‘‘cul4 tural affiliation’’ means that there is a relationship 

5 of shared group identity that can be reasonably 

6 traced historically or prehistorically between a 

7 present day Indian Tribe or Native Hawaiian orga8 nization and an identifiable earlier group. 

9 (3) CULTURAL ITEM.—The term ‘‘cultural 

10 item’’ means any 1 or more cultural items (as de11 fined in section 2 of the Native American Graves 

12 Protection and Repatriation Act (25 U.S.C. 3001)). 

13 (4) INDIAN TRIBE.—The term ‘‘Indian Tribe’’ 

14 has the meaning given the term ‘‘Indian tribe’’ in 

15 section 2 of the Native American Graves Protection 

16 and Repatriation Act (25 U.S.C. 3001). 

17 (5) ITEM PROHIBITED FROM EXPORTATION.— 

18 The term ‘‘Item Prohibited from Exportation’’ 

19 means— 

20 (A) a cultural item prohibited from being 

21 trafficked, including through sale, purchase, use 

22 for profit, or transport for sale or profit, by— 

23 (i) section 1170(b) of title 18, United 

24 States Code, as added by the Native Amer-
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1 ican Graves Protection and Repatriation 

2 Act (25 U.S.C. 3001 et seq.); or 

3 (ii) any other Federal law or treaty; 

4 and 

5 (B) an archaeological resource prohibited 

6 from being trafficked, including through sale, 

7 purchase, exchange, transport, receipt, or offer 

8 to sell, purchase, or exchange, including in 

9 interstate or foreign commerce, by— 

10 (i) subsections (b) and (c) of section 

11 6 of the Archaeological Resources Protec12 tion Act of 1979 (16 U.S.C. 470ee); or 

13 (ii) any other Federal law or treaty. 

14 (6) ITEM REQUIRING EXPORT CERTIFI15 CATION.— 

16 (A) IN GENERAL.—The term ‘‘Item Re17 quiring Export Certification’’ means— 

18 (i) a cultural item; and 

19 (ii) an archaeological resource. 

20 (B) EXCLUSION.—The term ‘‘Item Requir21 ing Export Certification’’ does not include an 

22 item described in clause (i) or (ii) of subpara23 graph (A) for which an Indian Tribe or Native 

24 Hawaiian organization with a cultural affili-
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1 ation with the item has provided a certificate 

2 authorizing exportation of the item. 

3 (7) NATIVE AMERICAN.—The term ‘‘Native 

4 American’’ means— 

5 (A) Native American (as defined in section 

6 2 of the Native American Graves Protection 

7 and Repatriation Act (25 U.S.C. 3001)); and 

8 (B) Native Hawaiian (as so defined). 

9 (8) NATIVE HAWAIIAN ORGANIZATION.—The 

10 term ‘‘Native Hawaiian organization’’ has the mean11 ing given the term in section 2 of the Native Amer12 ican Graves Protection and Repatriation Act (25 

13 U.S.C. 3001). 

14 (9) SECRETARY.—The term ‘‘Secretary’’ means 

15 the Secretary of the Interior. 

16 (10) TANGIBLE CULTURAL HERITAGE.—The 

17 term ‘‘tangible cultural heritage’’ means— 

18 (A) Native American human remains; or 

19 (B) culturally, historically, or 

20 archaeologically significant objects, resources, 

21 patrimony, or other items that are affiliated 

22 with a Native American culture. 

23 SEC. 4. ENHANCED NAGPRA PENALTIES. 

24 Section 1170 of title 18, United States Code, is 

25 amended— 
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1 (1) by striking ‘‘5 years’’ each place it appears 

2 and inserting ‘‘10 years’’; and 

3 (2) in subsection (a), by striking ‘‘12 months’’ 

4 and inserting ‘‘1 year and 1 day’’. 

5 SEC. 5. EXPORT PROHIBITIONS; EXPORT CERTIFICATION 

6 SYSTEM; INTERNATIONAL AGREEMENTS. 

7 (a) EXPORT PROHIBITIONS.— 

8 (1) IN GENERAL.—It shall be unlawful for any 

9 person— 

10 (A) to export, attempt to export, or other11 wise transport from the United States any Item 

12 Prohibited from Exportation; 

13 (B) to conspire with any person to engage 

14 in an activity described in subparagraph (A); or 

15 (C) to conceal an activity described in sub16 paragraph (A). 

17 (2) PENALTIES.—Any person who violates 

18 paragraph (1) and knows, or in the exercise of due 

19 care should have known, that the Item Prohibited 

20 from Exportation was taken, possessed, transported, 

21 or sold in violation of, or in a manner unlawful 

22 under, any Federal law or treaty, shall be fined in 

23 accordance with section 3571 of title 18, United 

24 States Code, imprisoned for not more than 1 year 

25 and 1 day for a first violation, and not more than 
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1 10 years for a second or subsequent violation, or 

2 both. 

3 (3) DETENTION, FORFEITURE, AND REPATRI4 ATION.— 

5 (A) DETENTION AND DELIVERY.—The 

6 Secretary of Homeland Security, acting through 

7 the Commissioner of U.S. Customs and Border 

8 Protection, shall— 

9 (i) detain any Item Prohibited from 

10 Exportation that is exported, attempted to 

11 be exported, or otherwise transported from 

12 the United States in violation of paragraph 

13 (1); and 

14 (ii) deliver the Item Prohibited from 

15 Exportation to the Secretary. 

16 (B) FORFEITURE.—Any Item Prohibited 

17 from Exportation that is exported, attempted to 

18 be exported, or otherwise transported from the 

19 United States in violation of paragraph (1) 

20 shall be subject to forfeiture to the United 

21 States in accordance with chapter 46 of title 

22 18, United States Code (including section 

23 983(c) of that chapter). 

24 (C) REPATRIATION.—Any Item Prohibited 

25 from Exportation that is forfeited under sub-
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1 paragraph (B) shall be expeditiously repatriated 

2 to the appropriate Indian Tribe or Native Ha3 waiian organization in accordance with, as ap4 plicable— 

5 (i) the Native American Graves Pro6 tection and Repatriation Act (25 U.S.C. 

7 3001 et seq.) (including section 1170 of 

8 title 18, United States Code, as added by 

9 that Act); or 

10 (ii) the Archaeological Resources Pro11 tection Act of 1979 (16 U.S.C. 470aa et 

12 seq.). 

13 (b) EXPORT CERTIFICATION SYSTEM.— 

14 (1) EXPORT CERTIFICATION REQUIREMENT.— 

15 (A) IN GENERAL.—No Item Requiring Ex16 port Certification may be exported from the 

17 United States without first having obtained an 

18 export certification in accordance with this sub19 section. 

20 (B) PUBLICATION.—The Secretary, in con21 sultation with Indian Tribes and Native Hawai22 ian organizations, shall publish in the Federal 

23 Register a notice that includes— 
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1 (i) a description of characteristics typ2 ical of Items Requiring Export Certifi3 cation, which shall— 

4 (I) include the definitions of the 

5 terms— 

6 (aa) ‘‘cultural items’’ in sec7 tion 2 of the Native American 

8 Graves Protection and Repatri9 ation Act (25 U.S.C. 3001); and 

10 (bb) ‘‘archaeological re11 source’’ in section 3 of the Ar12 chaeological Resources Protection 

13 Act of 1979 (16 U.S.C. 470bb); 

14 (II) describe the provenance re15 quirements associated with the traf16 ficking prohibition applicable to— 

17 (aa) cultural items under 

18 section 1170(b) of title 18, 

19 United States Code; and 

20 (bb) archaeological resources 

21 under subsections (b) and (c) of 

22 section 6 of Archaeological Re23 sources Protection Act of 1979 

24 (16 U.S.C. 470ee); 
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1 (III)(aa) include the definitions 

2 of the terms ‘‘Native American’’ and 

3 ‘‘Native Hawaiian’’ in section 2 of the 

4 Native American Graves Protection 

5 and Repatriation Act (25 U.S.C. 

6 3001); and 

7 (bb) describe how those terms 

8 apply to archaeological resources 

9 under this Act; and 

10 (IV) be sufficiently specific and 

11 precise to ensure that— 

12 (aa) an export certification 

13 is required only for Items Requir14 ing Export Certification; and 

15 (bb) fair notice is given to 

16 exporters and other persons re17 garding which items require an 

18 export certification under this 

19 subsection; and 

20 (ii) a description of characteristics 

21 typical of items that do not qualify as 

22 Items Requiring Export Certification and 

23 therefore do not require an export certifi24 cation under this subsection, which shall 

25 clarify that— 
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1 (I) an item made solely for com2 mercial purposes is presumed to not 

3 qualify as an Item Requiring Export 

4 Certification, unless an Indian Tribe 

5 or Native Hawaiian organization chal6 lenges that presumption; and 

7 (II) in some circumstances, re8 ceipts or certifications issued by In9 dian Tribes or Native Hawaiian orga10 nizations with a cultural affiliation 

11 with an item may be used as evidence 

12 to demonstrate a particular item does 

13 not qualify as an Item Requiring Ex14 port Certification. 

15 (2) ELIGIBILITY FOR EXPORT CERTIFI16 CATION.—An Item Requiring Export Certification is 

17 eligible for an export certification under this sub18 section if— 

19 (A) the Item Requiring Export Certifi20 cation is not under ongoing Federal investiga21 tion; 

22 (B) the export of the Item Requiring Ex23 port Certification would not otherwise violate 

24 any other provision of law; and 
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1 (C) the Item Requiring Export Certifi2 cation— 

3 (i) is not an Item Prohibited from Ex4 portation; 

5 (ii) was excavated or removed pursu6 ant to a permit issued under section 4 of 

7 the Archaeological Resources Protection 

8 Act of 1979 (16 U.S.C. 470cc) and in 

9 compliance with section 3(c) of the Native 

10 American Graves Protection and Repatri11 ation Act (25 U.S.C. 3002(c)), if the per12 mit for excavation or removal authorizes 

13 export; or 

14 (iii) is accompanied by written con15 firmation from the Indian Tribe or Native 

16 Hawaiian organization with authority to 

17 alienate the Item Requiring Export Certifi18 cation that— 

19 (I) the exporter has a right of 

20 possession (as defined in section 2 of 

21 the Native American Graves Protec22 tion and Repatriation Act (25 U.S.C. 

23 3001)) of the Item Requiring Export 

24 Certification; or 
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1 (II) the Indian Tribe or Native 

2 Hawaiian organization has relin3 quished title or control of the Item 

4 Requiring Export Certification in ac5 cordance with section 3 of the Native 

6 American Graves Protection and Re7 patriation Act (25 U.S.C. 3002). 

8 (3) EXPORT CERTIFICATION APPLICATION AND

9 ISSUANCE PROCEDURES.— 

10 (A) APPLICATIONS FOR EXPORT CERTIFI11 CATION.— 

12 (i) IN GENERAL.—An exporter seek13 ing to export an Item Requiring Export 

14 Certification from the United States shall 

15 submit to the Secretary an export certifi16 cation application in accordance with 

17 clause (iii). 

18 (ii) CONSEQUENCES OF FALSE STATE19 MENT.—Any willful or knowing false state20 ment made on an export certification appli21 cation form under clause (i) shall— 

22 (I) subject the exporter to crimi23 nal penalties pursuant to section 1001 

24 of title 18, United States Code; and 
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1 (II) prohibit the exporter from 

2 receiving an export certification for 

3 any Item Requiring Export Certifi4 cation in the future unless the ex5 porter submits additional evidence in 

6 accordance with subparagraph 

7 (B)(iii)(I). 

8 (iii) FORM OF EXPORT CERTIFICATION

9 APPLICATION.—The Secretary, in consulta10 tion with Indian Tribes and Native Hawai11 ian organizations, and at the discretion of 

12 the Secretary, in consultation with third 

13 parties with relevant expertise, including 

14 institutions of higher education, museums, 

15 dealers, and collector organizations, shall 

16 develop an export certification application 

17 form, which shall require that an appli18 cant— 

19 (I) describe, and provide pictures 

20 of, each Item Requiring Export Cer21 tification that the applicant seeks to 

22 export; 

23 (II) include all available informa24 tion regarding the provenance of each 
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1 such Item Requiring Export Certifi2 cation; and 

3 (III) include the attestation de4 scribed in subparagraph (B)(i). 

5 (B) EVIDENCE.— 

6 (i) IN GENERAL.—In completing an 

7 export certification application with respect 

8 to an Item Requiring Export Certification 

9 that the exporter seeks to export, the ex10 porter shall attest that, to the best of the 

11 knowledge and belief of the exporter, the 

12 exporter is not attempting to export an 

13 Item Prohibited from Exportation. 

14 (ii) SUFFICIENCY OF ATTESTATION.— 

15 An attestation under clause (i) shall be 

16 considered to be sufficient evidence to sup17 port the application of the exporter under 

18 subparagraph (A)(iii)(III), on the condition 

19 that the exporter is not required to provide 

20 additional evidence under clause (iii)(I). 

21 (iii) ADDITIONAL REQUIREMENTS.— 

22 (I) IN GENERAL.—The Secretary 

23 shall give notice to an exporter that 

24 submits an export certification appli25 cation under subparagraph (A)(i) that 
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1 the exporter is required to submit ad2 ditional evidence in accordance with 

3 subclause (III) if the Secretary has 

4 determined under subparagraph 

5 (A)(ii) that the exporter made a will6 ful or knowing false statement on the 

7 application or any past export certifi8 cation application. 

9 (II) DELAYS OR DENIALS.—The 

10 Secretary shall give notice to an ex11 porter that submits an export certifi12 cation application under subparagraph 

13 (A)(i) that the exporter may submit 

14 additional evidence in accordance with 

15 subclause (III) if the issuance of an 

16 export certification is— 

17 (aa) delayed pursuant to the 

18 examination by the Secretary of 

19 the eligibility of the Item Requir20 ing Export Certification for an 

21 export certification; or 

22 (bb) denied by the Secretary 

23 because the Secretary determined 

24 that the Item Requiring Export 

25 Certification is not eligible for an 
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1 export certification under this 

2 subsection. 

3 (III) ADDITIONAL EVIDENCE.— 

4 On receipt of notice under subclause 

5 (I), an exporter shall, or on receipt of 

6 a notice under subclause (II), an ex7 porter may, provide the Secretary 

8 with such additional evidence as the 

9 Secretary may require to establish 

10 that the Item Requiring Export Cer11 tification is eligible for an export cer12 tification under this subsection. 

13 (C) DATABASE APPLICATIONS.— 

14 (i) IN GENERAL.—The Secretary shall 

15 establish and maintain a secure central 

16 Federal database information system (re17 ferred to in this subparagraph as the 

18 ‘‘database’’) for the purpose of making ex19 port certification applications available to 

20 Indian Tribes and Native Hawaiian organi21 zations. 

22 (ii) COLLABORATION REQUIRED.—The 

23 Secretary shall collaborate with Indian 

24 Tribes, Native Hawaiian organizations, 

25 and the interagency working group con-
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1 vened under section 7(a) in the design and 

2 implementation of the database. 

3 (iii) AVAILABILITY.—Immediately on 

4 receipt of an export certification applica5 tion, the Secretary shall make the export 

6 certification application available on the 

7 database. 

8 (iv) DELETION FROM DATABASE.—On 

9 request by an Indian Tribe or Native Ha10 waiian organization, the Secretary shall de11 lete an export certification application from 

12 the database. 

13 (v) TECHNICAL ASSISTANCE.—If an 

14 Indian Tribe or Native Hawaiian organiza15 tion lacks sufficient resources to access the 

16 database or respond to agency communica17 tions in a timely manner, the Secretary, in 

18 consultation with Indian Tribes and Native 

19 Hawaiian organizations, shall provide tech20 nical assistance to facilitate that access or 

21 response, as applicable. 

22 (D) ISSUANCE OF EXPORT CERTIFI23 CATION.—On receipt of an export certification 

24 application for an Item Requiring Export Cer25 tification that meets the requirements of sub-
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1 paragraphs (A) and (B), if the Secretary, in 

2 consultation with Indian Tribes and Native Ha3 waiian organizations with a cultural affiliation 

4 with the Item Requiring Export Certification, 

5 determines that the Item Requiring Export Cer6 tification is eligible for an export certification 

7 under paragraph (2), the Secretary may issue 

8 an export certification for the Item Requiring 

9 Export Certification. 

10 (E) REVOCATION OF EXPORT CERTIFI11 CATION.— 

12 (i) IN GENERAL.—If credible evidence 

13 is provided that indicates that an item that 

14 received an export certification under sub15 paragraph (D) is not eligible for an export 

16 certification under paragraph (2), the Sec17 retary may immediately revoke the export 

18 certification. 

19 (ii) DETERMINATION.—In deter20 mining whether a revocation is warranted 

21 under clause (i), the Secretary shall con22 sult with Indian Tribes and Native Hawai23 ian organizations with a cultural affiliation 

24 with the affected Item Requiring Export 

25 Certification. 
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1 (4) DETENTION, FORFEITURE, REPATRIATION, 

2 AND RETURN.— 

3 (A) DETENTION AND DELIVERY.—The 

4 Secretary of Homeland Security, acting through 

5 the Commissioner of U.S. Customs and Border 

6 Protection, shall— 

7 (i) detain any Item Requiring Export 

8 Certification that an exporter attempts to 

9 export or otherwise transport without an 

10 export certification; and 

11 (ii) deliver the Item Requiring Export 

12 Certification to the Secretary, for seizure 

13 by the Secretary. 

14 (B) FORFEITURE.—Any Item Requiring 

15 Export Certification that is detained under sub16 paragraph (A)(i) shall be subject to forfeiture 

17 to the United States in accordance with chapter 

18 46 of title 18, United States Code (including 

19 section 983(c) of that chapter). 

20 (C) REPATRIATION OR RETURN TO EX21 PORTER.— 

22 (i) IN GENERAL.—Not later than 60 

23 days after the date of delivery to the Sec24 retary of an Item Requiring Export Cer25 tification under subparagraph (A)(ii), the 
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1 Secretary shall determine whether the Item 

2 Requiring Export Certification is an Item 

3 Prohibited from Exportation. 

4 (ii) REPATRIATION.—If an Item Re5 quiring Export Certification is determined 

6 by the Secretary to be an Item Prohibited 

7 from Exportation and is forfeited under 

8 subparagraph (B), the item shall be expe9 ditiously repatriated to the appropriate In10 dian Tribe or Native Hawaiian organiza11 tion in accordance with, as applicable— 

12 (I) the Native American Graves 

13 Protection and Repatriation Act (25 

14 U.S.C. 3001 et seq.) (including sec15 tion 1170 of title 18, United States 

16 Code, as added by that Act); or 

17 (II) the Archaeological Resources 

18 Protection Act of 1979 (16 U.S.C. 

19 470aa et seq.). 

20 (iii) RETURN TO EXPORTER.— 

21 (I) IN GENERAL.—If the Sec22 retary determines that credible evi23 dence does not establish that the Item 

24 Requiring Export Certification is an 

25 Item Prohibited from Exportation, or 
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1 if the Secretary does not complete the 

2 determination by the deadline de3 scribed in clause (i), the Secretary 

4 shall return the Item Requiring Ex5 port Certification to the exporter. 

6 (II) EFFECT.—The return of an 

7 Item Requiring Export Certification 

8 to an exporter under subclause (I) 

9 shall not mean that the Item Requir10 ing Export Certification is eligible for 

11 an export certification under this sub12 section. 

13 (5) PENALTIES.— 

14 (A) ITEMS REQUIRING EXPORT CERTIFI15 CATION.— 

16 (i) IN GENERAL.—It shall be unlawful 

17 for any person to export, attempt to ex18 port, or otherwise transport from the 

19 United States any Item Requiring Export 

20 Certification without first obtaining an ex21 port certification. 

22 (ii) PENALTIES.—Except as provided 

23 in subparagraph (D), any person who vio24 lates clause (i) shall be— 
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1 (I) assessed a civil penalty in ac2 cordance with such regulations as the 

3 Secretary promulgates pursuant to 

4 section 10; and 

5 (II) subject to any other applica6 ble penalties under this Act. 

7 (B) ITEMS PROHIBITED FROM EXPOR8 TATION.—Whoever exports an Item Prohibited 

9 from Exportation without first securing an ex10 port certification shall be liable for a civil 

11 money penalty, the amount of which shall equal 

12 the total cost of storing and repatriating the 

13 Item Prohibited from Exportation. 

14 (C) USE OF FINES COLLECTED.—Any 

15 amounts collected by the Secretary as a civil 

16 penalty under subparagraph (A)(ii)(I) or (B)— 

17 (i) may be used by the Secretary— 

18 (I) for fines collected under sub19 paragraph (A)(ii)(I), to process export 

20 certification applications under this 

21 subsection; and 

22 (II) for fines collected under sub23 paragraph (B), to store and repatriate 

24 the Item Prohibited from Exportation; 
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1 (ii) shall supplement (and not sup2 plant) any appropriations to the Secretary 

3 to carry out this subsection; and 

4 (iii) shall not be covered into the 

5 Treasury as miscellaneous receipts. 

6 (D) VOLUNTARY RETURN.— 

7 (i) IN GENERAL.—Any person who at8 tempts to export or otherwise transport 

9 from the United States an Item Requiring 

10 Export Certification without first obtaining 

11 an export certification, but voluntarily re12 turns the Item Requiring Export Certifi13 cation, or directs the Item Requiring Ex14 port Certification to be returned, to the ap15 propriate Indian Tribe or Native Hawaiian 

16 organization in accordance with section 6 

17 prior to the commencement of an active 

18 Federal investigation shall not be pros19 ecuted for a violation of subparagraph (A) 

20 with respect to the Item Requiring Export 

21 Certification. 

22 (ii) ACTIONS NOT COMMENCING A

23 FEDERAL INVESTIGATION.—For purposes 

24 of clause (i), the following actions shall not 
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1 be considered to be actions that commence 

2 an active Federal investigation: 

3 (I) The submission by the ex4 porter of an export certification appli5 cation for the Item Requiring Export 

6 Certification under paragraph 

7 (3)(A)(i). 

8 (II) The detention of the Item 

9 Requiring Export Certification by the 

10 Secretary of Homeland Security, act11 ing through the Commissioner of U.S. 

12 Customs and Border Protection, 

13 under paragraph (4)(A)(i). 

14 (III) The delivery to the Sec15 retary of the Item Requiring Export 

16 Certification by the Secretary of 

17 Homeland Security, acting through 

18 the Commissioner of U.S. Customs 

19 and Border Protection, under para20 graph (4)(A)(ii). 

21 (IV) The seizure by the Secretary 

22 of the Item Requiring Export Certifi23 cation under paragraph (4)(A)(ii). 

24 (6) FEES.— 
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1 (A) IN GENERAL.—The Secretary may col2 lect reasonable fees to process export certifi3 cation applications under this subsection. 

4 (B) AVAILABILITY OF AMOUNTS COL5 LECTED.—Any amounts collected by the Sec6 retary under subparagraph (A)— 

7 (i) shall supplement (and not sup8 plant) any appropriations to the Secretary 

9 for the activities described in subparagraph 

10 (A); and 

11 (ii) shall not be covered into the 

12 Treasury as miscellaneous receipts. 

13 (7) ADMINISTRATIVE APPEAL.—If the Secretary 

14 denies an export certification or an Item Requiring 

15 Export Certification is detained under this sub16 section, the exporter, on request, shall be given a 

17 hearing on the record in accordance with such rules 

18 and regulations as the Secretary promulgates pursu19 ant to section 10. 

20 (8) TRAINING.— 

21 (A) IN GENERAL.—The Secretary, the Sec22 retary of State, the Attorney General, and the 

23 heads of all other relevant Federal agencies 

24 shall require all appropriate personnel to par25 ticipate in training regarding applicable laws 
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1 and consultations to facilitate positive govern2 ment-to-government interactions with Indian 

3 Tribes and Native Hawaiian Organizations. 

4 (B) U.S. CUSTOMS AND BORDER PROTEC5 TION TRAINING.—The Secretary of Homeland 

6 Security, acting through the Commissioner of 

7 U.S. Customs and Border Protection, shall re8 quire all appropriate personnel of U.S. Customs 

9 and Border Protection to participate in training 

10 provided by the Secretary of the Interior or an 

11 Indian Tribe or Native Hawaiian organization 

12 to assist the personnel in identifying, handling, 

13 and documenting in a culturally sensitive man14 ner Items Requiring Export Certification for 

15 purposes of this Act. 

16 (C) CONSULTATION.—In developing or 

17 modifying and delivering trainings under sub18 paragraphs (A) and (B), the applicable heads of 

19 Federal agencies shall consult with Indian 

20 Tribes and Native Hawaiian organizations. 

21 (c) AGREEMENTS TO REQUEST RETURN FROM FOR22 EIGN COUNTRIES.—The President may request from for23 eign nations agreements that specify concrete measures 

24 that the foreign nation will carry out— 
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1 (1) to discourage commerce in, and collection 

2 of, Items Prohibited from Exportation; 

3 (2) to encourage the voluntary return of tan4 gible cultural heritage; and 

5 (3) to expand the market for the products of 

6 Indian art and craftsmanship in accordance with 

7 section 2 of the Act of August 27, 1935 (49 Stat. 

8 891, chapter 748; 25 U.S.C. 305a) (commonly 

9 known as the ‘‘Indian Arts and Crafts Act’’). 

10 SEC. 6. VOLUNTARY RETURN OF TANGIBLE CULTURAL 

11 HERITAGE. 

12 (a) LIAISON.—The Secretary and the Secretary of 

13 State shall each designate a liaison to facilitate the vol14 untary return of tangible cultural heritage. 

15 (b) TRAININGS AND WORKSHOPS.—The liaisons des16 ignated under subsection (a) shall offer to representatives 

17 of Indian Tribes and Native Hawaiian organizations and 

18 collectors, dealers, and other individuals and organizations 

19 trainings and workshops regarding the voluntary return 

20 of tangible cultural heritage. 

21 (c) REFERRALS.— 

22 (1) IN GENERAL.—The Secretary shall refer in23 dividuals and organizations to 1 or more Indian 

24 Tribes and Native Hawaiian organizations with a 

25 cultural affiliation to tangible cultural heritage for 
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1 the purpose of facilitating the voluntary return of 

2 tangible cultural heritage. 

3 (2) REFERRAL REPRESENTATIVES.—The Sec4 retary shall compile a list of representatives from 

5 each Indian Tribe and Native Hawaiian organization 

6 for purposes of referral under paragraph (1). 

7 (3) CONSULTATION.—The Secretary shall con8 sult with Indian Tribes, Native Hawaiian organiza9 tions, and the Native working group convened under 

10 section 8(a) before making a referral under para11 graph (1). 

12 (4) THIRD-PARTY EXPERTS.—The Secretary 

13 may use third parties with relevant expertise, includ14 ing institutions of higher education, museums, deal15 ers, and collector organizations, in determining to 

16 which Indian Tribe or Native Hawaiian organization 

17 an individual or organization should be referred 

18 under paragraph (1). 

19 (d) LEGAL LIABILITY.—Nothing in this section im20 poses on any individual or entity any additional penalties 

21 or legal liability. 

22 (e) TAX DOCUMENTATION.—In facilitating the vol23 untary return of tangible cultural heritage under this sec24 tion, the Secretary shall include provision of tax docu25 mentation for a deductible gift to an Indian Tribe or Na-
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1 tive Hawaiian organization, if the recipient Indian Tribe 

2 or Native Hawaiian organization consents to the provision 

3 of tax documentation. 

4 (f) REPATRIATION UNDER NATIVE AMERICAN

5 GRAVES PROTECTION AND REPATRIATION ACT.—The vol6 untary return provisions of this section shall apply to a 

7 specific item of tangible cultural heritage only to the ex8 tent that the repatriation provisions under section 7 of the 

9 Native American Graves Protection and Repatriation Act 

10 (25 U.S.C. 3005) do not apply to the item of tangible cul11 tural heritage. 

12 SEC. 7. INTERAGENCY WORKING GROUP. 

13 (a) IN GENERAL.—The Secretary shall designate a 

14 coordinating office to convene an interagency working 

15 group consisting of representatives from the Departments 

16 of the Interior, Justice, State, and Homeland Security. 

17 (b) GOALS.—The goals of the interagency working 

18 group convened under subsection (a) are— 

19 (1) to facilitate the repatriation to Indian 

20 Tribes and Native Hawaiian organizations of items 

21 that have been illegally removed or trafficked in vio22 lation of applicable law; 

23 (2) to protect tangible cultural heritage, cul24 tural items, and archaeological resources still in the 
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1 possession of Indian Tribes and Native Hawaiian or2 ganizations; and 

3 (3) to improve the implementation by the appli4 cable Federal agencies of— 

5 (A) the Native American Graves Protection 

6 and Repatriation Act (25 U.S.C. 3001 et seq.) 

7 (including section 1170 of title 18, United 

8 States Code, as added by that Act); 

9 (B) the Archaeological Resources Protec10 tion Act of 1979 (16 U.S.C. 470aa et seq.); and 

11 (C) other relevant Federal laws. 

12 (c) RESPONSIBILITIES.—The interagency working 

13 group convened under subsection (a) shall— 

14 (1) aid in implementation of this Act and the 

15 amendments made by this Act, including by aiding 

16 in— 

17 (A) the voluntary return of tangible cul18 tural heritage under section 6; and 

19 (B) halting international sales of items 

20 that are prohibited from being trafficked under 

21 Federal law; and 

22 (2) collaborate with— 

23 (A) the Native working group convened 

24 under section 8(a); 
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1 (B) the review committee established under 

2 section 8(a) of the Native American Graves 

3 Protection and Repatriation Act (25 U.S.C. 

4 3006(a)); 

5 (C) the Cultural Heritage Coordinating 

6 Committee established pursuant to section 2 of 

7 the Protect and Preserve International Cultural 

8 Property Act (Public Law 114–151; 19 U.S.C. 

9 2601 note); and 

10 (D) any other relevant committees and 

11 working groups. 

12 SEC. 8. NATIVE WORKING GROUP. 

13 (a) IN GENERAL.—The Secretary shall convene a Na14 tive working group consisting of not fewer than 12 rep15 resentatives of Indian Tribes and Native Hawaiian organi16 zations with relevant expertise, who shall be nominated by 

17 Indian Tribes and Native Hawaiian organizations, to ad18 vise the Federal Government in accordance with this sec19 tion. 

20 (b) RECOMMENDATIONS.—The Native working group 

21 convened under subsection (a) may provide recommenda22 tions regarding— 

23 (1) the voluntary return of tangible cultural 

24 heritage by collectors, dealers, and other individuals 
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1 and non-Federal organizations that hold such tan2 gible cultural heritage; and 

3 (2) the elimination of illegal commerce of cul4 tural items and archaeological resources in the 

5 United States and foreign markets. 

6 (c) REQUESTS.—The Native working group convened 

7 under subsection (a) may make formal requests to initiate 

8 certain agency actions, including requests that— 

9 (1) the Department of Justice initiate judicial 

10 proceedings domestically or abroad to aid in the re11 patriation cultural items and archaeological re12 sources; and 

13 (2) the Department of State initiate dialogue 

14 through diplomatic channels to aid in that repatri15 ation. 

16 (d) AGENCY AND COMMITTEE ASSISTANCE.— 

17 (1) IN GENERAL.—On request by the Native 

18 working group convened under subsection (a), the 

19 agencies and committees described in paragraph (2) 

20 shall make efforts to provide information and assist21 ance to the Native working group. 

22 (2) DESCRIPTION OF AGENCIES AND COMMIT23 TEES.—The agencies and committees referred to in 

24 paragraph (1) are the following: 

25 (A) The Department of the Interior. 
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1 (B) The Department of Justice. 

2 (C) The Department of Homeland Secu3 rity. 

4 (D) The Department of State. 

5 (E) The review committee established 

6 under section 8(a) of the Native American 

7 Graves Protection and Repatriation Act (25 

8 U.S.C. 3006(a)). 

9 (F) The Cultural Heritage Coordinating 

10 Committee established pursuant to section 2 of 

11 the Protect and Preserve International Cultural 

12 Property Act (Public Law 114–151; 19 U.S.C. 

13 2601 note). 

14 (G) Any other relevant Federal agency, 

15 committee, or working group. 

16 (e) APPLICABILITY OF FEDERAL ADVISORY COM17 MITTEE ACT.—The Federal Advisory Committee Act (5 

18 U.S.C. App.) shall not apply to the Native working group 

19 convened under subsection (a). 

20 SEC. 9. TREATMENT UNDER FREEDOM OF INFORMATION 

21 ACT. 

22 (a) IN GENERAL.—Except as provided in subsection 

23 (c), the following information shall be exempt from disclo24 sure under section 552 of title 5, United States Code: 
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1 (1) Information that a representative of an In2 dian Tribe or Native Hawaiian organization— 

3 (A) submits to a Federal agency pursuant 

4 to this Act or an amendment made by this Act; 

5 and 

6 (B) designates as sensitive or private ac7 cording to Native American custom, law, cul8 ture, or religion. 

9 (2) Information that any person submits to a 

10 Federal agency pursuant to this Act or an amend11 ment made by this Act that relates to an item for 

12 which an export certification is denied under this 

13 Act. 

14 (b) APPLICABILITY.—For purposes of subsection (a), 

15 this Act shall be considered a statute described in section 

16 552(b)(3)(B) of title 5, United States Code. 

17 (c) EXCEPTION.—An Indian Tribe or Native Hawai18 ian organization may request and shall receive its own in19 formation, as described in subsection (a), from the Federal 

20 agency to which the Indian Tribe or Native Hawaiian or21 ganization submitted the information. 

22 SEC. 10. REGULATIONS. 

23 (a) IN GENERAL.—Not later than 1 year after the 

24 date of enactment of this Act, the Secretary, in consulta25 tion with the Secretary of State, the Secretary of Home-
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1 land Security, and the Attorney General, and after con2 sultation with Indian Tribes and Native Hawaiian organi3 zations, shall promulgate rules and regulations to carry 

4 out this Act. 

5 (b) INCLUSION.—The regulations promulgated by the 

6 Secretary pursuant to subsection (a) shall include a rea7 sonable deadline by which the Secretary shall approve or 

8 deny an export certification application under section 5(b). 

9 SEC. 11. AUTHORIZATION OF APPROPRIATIONS. 

10 There is authorized to be appropriated to carry out 

11 this Act $3,000,000 for each of fiscal years 2021 through 

12 2026. 

Passed the Senate December 17, 2020. 

Attest: 

Secretary. 

116TH CONGRESS 

2D SESSION S. 2165 

AN ACT 

To enhance protections of Native American tangible 

cultural heritage, and for other purposes.