II 

116TH CONGRESS 

1ST SESSION S. 2165 

To enhance protections of Native American tangible cultural heritage, and 

for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JULY 18, 2019 

Mr. HEINRICH (for himself, Ms. MURKOWSKI, Ms. BALDWIN, Mr. DAINES, 

Mr. SCHATZ, Ms. MCSALLY, Mr. UDALL, and Mr. LANKFORD) introduced 

the following bill; which was read twice and referred to the Committee 

on Indian Affairs 

A BILL 

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, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Safeguard Tribal Ob5 jects of Patrimony Act of 2019’’. 

6 SEC. 2. PURPOSE. 

7 It is the purpose of this Act— 

8 (1) to carry out the United States trust respon9 sibility to Indian Tribes; 


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1 (2) to increase the maximum penalty for actions 

2 taken in violation of the Native American Graves 

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

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

5 States Code, as added by the Native American 

6 Graves Protection and Repatriation Act), in order to 

7 strengthen deterrence; 

8 (3) to make internationally applicable the Na9 tive American Graves Protection and Repatriation 

10 Act (25 U.S.C. 3001 et seq.) (including section 1170 

11 of title 18, United States Code, as added by the Na12 tive American Graves Protection and Repatriation 

13 Act), the Archaeological Resources Protection Act of 

14 1979 (16 U.S.C. 470aa et seq.), and the Antiquities 

15 Act under section 1866(b) of title 18, United States 

16 Code, to facilitate the international repatriation of 

17 Native American cultural items, Native American 

18 archaeological resources, and Native American ob19 jects of antiquity; 

20 (4) to access other countries’ domestic laws and 

21 law enforcement mechanisms to facilitate inter22 national repatriation by explicitly prohibiting the ex23 portation of Native American cultural items obtained 

24 in violation of the Native American Graves Protec25 tion and Repatriation Act (25 U.S.C. 3001 et seq.) 


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1 (including section 1170 of title 18, United States 

2 Code, as added by the Native American Graves Pro3 tection and Repatriation Act), Native American ar4 chaeological resources obtained in violation of the 

5 Archaeological Resources Protection Act of 1979 (16 

6 U.S.C. 470aa et seq.), and Native American objects 

7 of antiquity obtained in violation of the Antiquities 

8 Act under section 1866(b) of title 18, United States 

9 Code, and by creating an export certification system; 

10 (5) to confirm the authority of the President to 

11 request from foreign nations agreements or provi12 sional measures under the Convention on the Means 

13 of Prohibiting and Preventing the Illicit Import, Ex14 port, and Transfer of Ownership of Cultural Prop15 erty (823 U.N.T.S. 231 (1972)), to facilitate the re16 turn of Native American cultural items obtained in 

17 violation of the Native American Graves Protection 

18 and Repatriation Act (25 U.S.C. 3001 et seq.) (in19 cluding section 1170 of title 18, United States Code, 

20 as added by the Native American Graves Protection 

21 and Repatriation Act), Native American archae22 ological resources obtained in violation of the Ar23 chaeological Resources Protection Act of 1979 (16 

24 U.S.C. 470aa et seq.), and Native American objects 

25 of antiquity obtained in violation of the Antiquities 


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1 Act under section 1866(b) of title 18, United States 

2 Code; 

3 (6) to establish a Federal framework in order 

4 to support individuals’ and organizations’ voluntary 

5 return of items of tangible cultural heritage, which 

6 need not be obtained in violation of the Native 

7 American Graves Protection and Repatriation Act 

8 (25 U.S.C. 3001 et seq.) (including section 1170 of 

9 title 18, United States Code, as added by the Native 

10 American Graves Protection and Repatriation Act), 

11 the Archaeological Resources Protection Act of 1979 

12 (16 U.S.C. 470aa et seq.), or the Antiquities Act 

13 under section 1866(b) of title 18, United States 

14 Code; 

15 (7) to establish an interagency working group 

16 to ensure communication between all Federal agen17 cies to successfully implement the Native American 

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

19 3001 et seq.) (including section 1170 of title 18, 

20 United States Code, as added by the Native Amer21 ican Graves Protection and Repatriation Act), the 

22 Archaeological Resources Protection Act of 1979 (16 

23 U.S.C. 470aa et seq.), and the Antiquities Act under 

24 section 1866(b) of title 18, United States Code; 


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1 (8) to establish a Tribal working group to pro2 vide recommendations regarding implementation of 

3 the Native American Graves Protection and Repatri4 ation Act (25 U.S.C. 3001 et seq.) (including section 

5 1170 of title 18, United States Code, as added by 

6 the Native American Graves Protection and Repatri7 ation Act), the Archaeological Resources Protection 

8 Act of 1979 (16 U.S.C. 470aa et seq.), and the An9 tiquities Act under section 1866(b) of title 18, 

10 United States Code; and 

11 (9) to create a Freedom of Information Act ex12 emption for information submitted by Indian Tribes 

13 pursuant to this Act. 

14 SEC. 3. DEFINITIONS. 

15 In this Act, the following definitions apply: 

16 (1) CULTURAL AFFILIATION.—The term ‘‘cul17 tural affiliation’’ has the meaning given the term in 

18 section 2 of the Native American Graves Protection 

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

20 (2) INDIAN TRIBE.—The term ‘‘Indian 

21 Tribe’’— 

22 (A) has the meaning given the term ‘‘In23 dian tribe’’ in section 2 of the Native American 

24 Graves Protection and Repatriation Act (25 

25 U.S.C. 3001); and 


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1 (B) includes ‘‘Native Hawaiian organiza2 tion’’ as that term is defined in section 2 of the 

3 Native American Graves Protection and Repa4 triation Act (25 U.S.C. 3001). 

5 (3) ITEM REQUIRING EXPORT CERTIFI6 CATION.—The term ‘‘Item Requiring Export Certifi7 cation’’ means— 

8 (A) a Native American ‘‘cultural item’’ as 

9 defined in section 2 of the Native American 

10 Graves Protection and Repatriation Act (25 

11 U.S.C. 3001); 

12 (B) a Native American ‘‘archaeological re13 source’’ as defined in section 3 of the Archae14 ological Resources Protection Act of 1979 (16 

15 U.S.C. 470bb); or 

16 (C) a Native American ‘‘object of antiq17 uity’’ within the meaning of section 1866(b) of 

18 title 18, United States Code. 

19 (4) ITEM PROHIBITED FROM EXPORTATION.— 

20 The term ‘‘Item Prohibited from Exportation’’ 

21 means— 

22 (A) a Native American ‘‘cultural item’’ as 

23 defined in section 2 of the Native American 

24 Graves Protection and Repatriation Act (25 

25 U.S.C. 3001) and obtained in violation of the 


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1 Native American Graves Protection and Repa2 triation Act (25 U.S.C. 3001 et seq.) (including 

3 section 1170 of title 18, United States Code, as 

4 added by the Native American Graves Protec5 tion and Repatriation Act); 

6 (B) a Native American ‘‘archaeological re7 source’’ as defined in section 3 of the Archae8 ological Resources Protection Act of 1979 (16 

9 U.S.C. 470bb) and obtained in violation of the 

10 Archaeological Resources Protection Act of 

11 1979 (16 U.S.C. 470aa et seq.); 

12 (C) a Native American ‘‘object of antiq13 uity’’ within the meaning of and obtained in 

14 violation of the Antiquities Act under section 

15 1866(b) of title 18, United States Code; or 

16 (D) a Native American ‘‘cultural item’’ as 

17 defined in section 2 of the Native American 

18 Graves Protection and Repatriation Act (25 

19 U.S.C. 3001), Native American ‘‘archaeological 

20 resource’’ as defined in section 3 of the Archae21 ological Resources Protection Act of 1979 (16 

22 U.S.C. 470bb), or Native American ‘‘object of 

23 antiquity’’ within the meaning of the Antiq24 uities Act under section 1866(b) of title 18, 


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1 United States Code, that is under active Fed2 eral investigation. 

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

4 American’’— 

5 (A) has the meaning given the term in sec6 tion 2 of the Native American Graves Protec7 tion and Repatriation Act (25 U.S.C. 3001); 

8 and 

9 (B) includes ‘‘Native Hawaiian’’ as that 

10 term is defined in section 2 of the Native Amer11 ican Graves Protection and Repatriation Act 

12 (25 U.S.C. 3001). 

13 (6) SECRETARY.—The term ‘‘Secretary’’ means 

14 the Secretary of the Interior. 

15 (7) TANGIBLE CULTURAL HERITAGE.—The 

16 term ‘‘tangible cultural heritage’’ means— 

17 (A) Native American human remains; or 

18 (B) culturally, historically, or 

19 archaeologically significant objects, resources, 

20 patrimony, or other items that are affiliated 

21 with a Native American culture. 

22 SEC. 4. ENHANCED NAGPRA PENALTIES. 

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

24 amended by striking ‘‘5 years’’ each place it appears and 

25 inserting ‘‘10 years’’. 


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1 SEC. 5. EXPORT PROHIBITION AND CERTIFICATION SYS2 TEM AND INTERNATIONAL AGREEMENTS. 

3 (a) EXPORT PROHIBITIONS.— 

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

5 person to export or otherwise transport from the 

6 United States any Item Prohibited from Expor7 tation. 

8 (2) PENALTIES.—Any person who violates 

9 paragraph (1) shall be fined in accordance with sec10 tion 3571 of title 18, United States Code, and shall 

11 be imprisoned for not more than 1 year for a first 

12 violation and not more than 10 years for a second 

13 or subsequent violation. 

14 (b) EXPORT CERTIFICATION SYSTEM.— 

15 (1) EXPORT CERTIFICATION REQUIREMENT.— 

16 (A) IN GENERAL.—No Item Requiring Ex17 port Certification may be exported from the 

18 United States without first having obtained an 

19 export certification in accordance with this sub20 section. 

21 (B) PUBLICATION.—The Secretary shall, 

22 in consultation with Indian Tribes, publish in 

23 the Federal Register a notice that includes— 

24 (i) a description of characteristics typ25 ical of Items Requiring Export Certifi26 cation, which shall be sufficiently specific 


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1 and precise to ensure an export certifi2 cation is required only of such Items Re3 quiring Export Certification and that fair 

4 notice is given to exporters and other per5 sons as to which items require an export 

6 certification under this paragraph; and 

7 (ii) a description of characteristics 

8 typical of items that do not qualify as 

9 Items Requiring Export Certification and 

10 therefore do not require an export certifi11 cation under this paragraph, which shall— 

12 (I) clarify that objects made for 

13 commercial purposes generally do not 

14 qualify as an Item Requiring Export 

15 Certification; and 

16 (II) clarify that in some cir17 cumstances receipts or certifications 

18 issued by Indian Tribes may be used 

19 as evidence to demonstrate a par20 ticular item does not qualify as an 

21 Item Requiring Export Certification. 

22 (2) ELIGIBILITY FOR EXPORT CERTIFI23 CATION.—An Item Requiring Export Certification is 

24 not an Item Prohibited from Exportation and is 


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1 therefore eligible for an export certification if it is 

2 not under ongoing Federal investigation and it— 

3 (A) was not obtained within the time and 

4 location provenance parameters of the Native 

5 American Graves Protection and Repatriation 

6 Act (25 U.S.C. 3001 et seq.) (including section 

7 1170 of title 18, United States Code, as added 

8 by the Native American Graves Protection and 

9 Repatriation Act), the Archaeological Resources 

10 Protection Act of 1979 (16 U.S.C. 470aa et 

11 seq.), or the Antiquities Act under section 

12 1866(b) of title 18, United States Code, and 

13 the export of the Item Requiring Export Cer14 tification would not otherwise violate any other 

15 provision of law; 

16 (B) was excavated or removed pursuant to 

17 a permit issued under section 4 of the Archae18 ological Resources Protection Act of 1979 (16 

19 U.S.C. 470cc) or section 320302 of title 54, 

20 United States Code, or in compliance with sec21 tion 3(c) of the Native American Graves Pro22 tection and Repatriation Act (25 U.S.C. 

23 3002(c)), if the permit for excavation or re24 moval authorizes export, and the export of the 


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1 Item Requiring Export Certification would not 

2 otherwise violate any other provision of law; or 

3 (C) is accompanied by written confirmation 

4 from an Indian Tribe that the exporter has a 

5 right of possession, as defined in section 2 of 

6 the Native American Graves Protection and Re7 patriation Act (25 U.S.C. 3001), or that the In8 dian Tribe has relinquished title or control, as 

9 provided for in section 3 of the Native Amer10 ican Graves Protection and Repatriation Act 

11 (25 U.S.C. 3002), of the Item Requiring Ex12 port Certification, and the export of the Item 

13 Requiring Export Certification would not other14 wise violate any other provision of law. 

15 (3) EXPORT CERTIFICATION APPLICATION AND

16 ISSUANCE PROCEDURES.— 

17 (A) APPLYING FOR EXPORT CERTIFI18 CATION.— 

19 (i) ATTESTATION.— 

20 (I) IN GENERAL.—With respect 

21 to each Item Requiring Export Cer22 tification to be exported from the 

23 United States, the exporter shall 

24 make an attestation (on an attestation 

25 form described in subclause (III)) 


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1 that, to the best of the exporter’s 

2 knowledge and belief, the exporter is 

3 not exporting an Item Prohibited from 

4 Exportation. 

5 (II) CONSEQUENCES OF FALSE

6 STATEMENT.—Any willful or knowing 

7 false statement made on an attesta8 tion form under subclause (I) shall— 

9 (aa) subject the exporter to 

10 criminal penalties pursuant to 

11 section 1001 of title 18, United 

12 States Code; and 

13 (bb) prohibit the exporter 

14 from receiving an export certifi15 cation for any Item Requiring 

16 Export Certification through at17 testation alone in the future. 

18 (III) ATTESTATION FORM.—An 

19 attestation form shall describe and 

20 provide pictures of each Item Requir21 ing Export Certification. The Sec22 retary shall consult with Indian 

23 Tribes in designing the attestation 

24 form. 


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1 (ii) ADDITIONAL EVIDENCE.—If attes2 tation alone is no longer permitted or an 

3 export certification is delayed or denied, 

4 notice shall be given to the exporter, who 

5 may provide the Secretary with evidence to 

6 establish that the Item Requiring Export 

7 Certification is not an Item Prohibited 

8 from Exportation. 

9 (B) AVAILABILITY OF APPLICATIONS.— 

10 The Secretary shall make each export certifi11 cation application available to Indian Tribes via 

12 a secure website immediately after each export 

13 certification application has been submitted. 

14 (C) ISSUANCE OF EXPORT CERTIFI15 CATION.—The Secretary, in consultation with 

16 Indian Tribes, may issue an export certification 

17 for an Item Requiring Export Certification that 

18 is not an Item Prohibited from Exportation and 

19 is therefore eligible for export. 

20 (D) REVOCATION OF EXPORT CERTIFI21 CATION.—If credible evidence is provided that 

22 indicates an item that received an export certifi23 cation qualifies as an Item Prohibited from Ex24 portation, the Secretary may immediately re25 voke the export certification. In making a deterVerDate Sep 11 2014 22:43 Jul 22, 2019 Jkt 089200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S2165.IS S2165

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1 mination about whether revocation is war2 ranted, Indian Tribes shall be consulted. 

3 (4) SEIZURE, FORFEITURE, AND RETURN.— 

4 (A) SEIZURE.—Any Item Requiring Ex5 port Certification that an exporter attempts to 

6 export without an export certification shall be 

7 subject to seizure by the U.S. Customs and 

8 Border Protection. 

9 (B) FORFEITURE.—An item found to qual10 ify as an Item Prohibited from Exportation 

11 shall be forfeited, consistent with chapter 46 of 

12 title 18, United States Code, to the Federal 

13 Government and repatriated to the Indian 

14 Tribe pursuant to the process provided for 

15 under the law under which it is found to be ob16 tained in violation. 

17 (C) RETURN TO EXPORTER.—An Item Re18 quiring Export Certification that is seized 

19 under subparagraph (A) for which credible evi20 dence does not establish within 60 days that it 

21 is an Item Prohibited from Exportation shall be 

22 returned to the exporter but shall not receive an 

23 export certification at that time. 

24 (5) ADMINISTRATIVE APPEAL.—If the Secretary 

25 denies an export certification or seizes an Item ReVerDate Sep 11 2014 22:43 Jul 22, 2019 Jkt 089200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\S2165.IS S2165

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1 quiring Export Certification under this subsection, 

2 the exporter shall upon request be given a hearing 

3 on the record under such rules and regulations as 

4 the Secretary may promulgate. 

5 (6) FEES.—Reasonable fees may be collected 

6 for the processing of export certification applications 

7 under this subsection. 

8 (7) TRAINING.—The Secretary of Homeland 

9 Security, acting through the Commissioner of U.S. 

10 Customs and Border Protection, shall require all ap11 propriate personnel of U.S. Customs and Border 

12 Protection to participate in training to identify 

13 Items Requiring Export Certification for purposes of 

14 this Act and the amendment made by this Act. In15 dian Tribes shall be consulted in developing and de16 livering such trainings. 

17 (8) VOLUNTARY RETURN.—Whoever seeks to 

18 export an Item Requiring Export Certification with19 out a required export certification but voluntarily re20 turns it to the Indian Tribe with a likely cultural af21 filiation prior to active Federal investigation shall 

22 not be prosecuted for such violation with respect to 

23 the Item Requiring Export Certification. The export24 er’s application to obtain an export certification does 


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1 not qualify as triggering an active Federal investiga2 tion. 

3 (c) AGREEMENTS TO REQUEST RETURN FROM FOR4 EIGN COUNTRIES.—The President is authorized to re5 quest from a State Party agreements or provisional meas6 ures pursuant to the Convention on the Means of Prohib7 iting and Preventing the Illicit Import, Export, and Trans8 fer of Ownership of Cultural Property (823 U.N.T.S. 231 

9 (1972)), subject to the limitations of Articles 6 and 9, 

10 under which the President may request the return from 

11 the State Party of Items Prohibited from Exportation. 

12 (d) RULES AND REGULATIONS.—All rules and regu13 lations necessary and appropriate to carry out the provi14 sions of this section shall be prescribed by the Secretary 

15 and shall be made in consultation with Indian Tribes. 

16 SEC. 6. VOLUNTARY RETURN OF TANGIBLE CULTURAL 

17 HERITAGE. 

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

19 State shall each designate a liaison to facilitate the vol20 untary return of tangible cultural heritage. 

21 (b) TRAININGS AND WORKSHOPS.—The individuals 

22 listed in subsection (a) shall hold trainings and workshops 

23 for representatives of Indian Tribes and collectors, deal24 ers, and other individuals and organizations regarding the 

25 voluntary return of tangible cultural heritage. 


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1 (c) REFERRALS.— 

2 (1) IN GENERAL.—The Secretary shall refer in3 dividuals and organizations to one or more Indian 

4 Tribes with a likely cultural affiliation to tangible 

5 cultural heritage for the purpose of facilitating the 

6 voluntary return of tangible cultural heritage. 

7 (2) REFERRAL REPRESENTATIVES.—The Sec8 retary shall compile a list of representatives from 

9 each Indian Tribe for purposes of referral under 

10 paragraph (1). 

11 (3) CONSULTATION.—The Secretary shall con12 sult with Indian Tribes before making a referral 

13 under paragraph (1). 

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

15 may utilize third parties with relevant expertise, in16 cluding universities, museums, dealers, collector or17 ganizations, and others, in making determinations 

18 regarding to which Indian Tribe an individual or or19 ganization should be referred under paragraph (1). 

20 (d) LEGAL LIABILITY.—This section shall not impose 

21 additional penalties or legal liability. 

22 (e) TAX DOCUMENTATION.—The Secretary’s vol23 untary return facilitation shall include provision of tax 

24 documentation for a deductible gift to an Indian Tribe. 


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1 (f) REPATRIATION UNDER NATIVE AMERICAN

2 GRAVES PROTECTION AND REPATRIATION ACT.—The vol3 untary return provisions of this section shall apply to a 

4 specific item of tangible cultural heritage only to the ex5 tent that the repatriation provisions under section 7 of the 

6 Native American Graves Protection and Repatriation Act 

7 (25 U.S.C. 3005) do not apply to such item of tangible 

8 cultural heritage. 

9 SEC. 7. INTERAGENCY WORKING GROUP. 

10 (a) IN GENERAL.—The Secretary shall convene an 

11 interagency working group consisting of representatives 

12 from the Departments of the Interior, Justice, State, and 

13 Homeland Security. 

14 (b) GOALS.—The goals of the working group are— 

15 (1) to facilitate repatriation to Indian Tribes of 

16 items that have been illegally removed or trafficked 

17 in violation of law; 

18 (2) to protect such items still in Indian Tribes’ 

19 possession; and 

20 (3) to improve Federal agencies’ implementa21 tion of the Native American Graves Protection and 

22 Repatriation Act (25 U.S.C. 3001 et seq.) (including 

23 section 1170 of title 18, United States Code, as 

24 added by the Native American Graves Protection 

25 and Repatriation Act), the Archaeological Resources 


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1 Protection Act of 1979 (16 U.S.C. 470aa et seq.), 

2 the Antiquities Act under section 1866(b) of title 18, 

3 United States Code, and other relevant laws. 

4 (c) RESPONSIBILITIES.—The interagency working 

5 group shall aid in implementation of other provisions of 

6 this Act or the amendments made by this Act, including 

7 regarding voluntary return and halting international sales, 

8 and shall collaborate with the Tribal working group cre9 ated pursuant to this Act. 

10 SEC. 8. TRIBAL WORKING GROUP. 

11 (a) IN GENERAL.—The Secretary shall convene a 

12 Tribal working group consisting of representatives of In13 dian Tribes to advise the Federal Government. 

14 (b) RECOMMENDATIONS.—The Tribal working group 

15 convened under subsection (a) may provide recommenda16 tions regarding— 

17 (1) the voluntary return of tangible cultural 

18 heritage by collectors, dealers, and other individuals 

19 and non-Federal organizations that hold such tan20 gible cultural heritage; and 

21 (2) the elimination of illegal commerce in the 

22 United States and foreign markets. 

23 (c) REQUESTS.—The Tribal working group convened 

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

25 certain agency actions, including— 


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1 (1) requesting the Department of Justice ini2 tiate judicial proceedings domestically or abroad to 

3 aid in repatriation; and 

4 (2) requesting the Department of State initiate 

5 dialogue through diplomatic channels to aid in repa6 triation. 

7 (d) AGENCY AND COMMITTEE ASSISTANCE.— 

8 (1) IN GENERAL.—The agencies and commit9 tees described in paragraph (2) shall provide infor10 mation and assistance to the Tribal working group 

11 convened under subsection (a) upon request by the 

12 Tribal working group. 

13 (2) AGENCIES AND COMMITTEES.—The agen14 cies and committees described in this paragraph are 

15 the following: 

16 (A) The Department of the Interior. 

17 (B) The Department of Justice. 

18 (C) The Department of Homeland Secu19 rity. 

20 (D) The Department of State. 

21 (E) The Native American Graves Protec22 tion and Repatriation Review Committee estab23 lished under section 8 of the Native American 

24 Graves Protection and Repatriation Act (25 

25 U.S.C. 3006). 


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1 (F) Any other relevant Federal agency. 

2 SEC. 9. FREEDOM OF INFORMATION ACT EXEMPTIONS. 

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

4 (b), information that a representative of an Indian Tribe 

5 submits to any Federal agency pursuant to this Act, or 

6 any amendment made by this Act, shall qualify for exemp7 tion from disclosure under the Freedom of Information 

8 Act pursuant to section 552(b)(3) of title 5, United States 

9 Code. 

10 (b) EXCEPTION.—An Indian Tribe may request and 

11 shall receive its own information, as described in sub12 section (a), from the Federal agency to which it submitted 

13 its information. 

Æ 


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