II 116th CONGRESS 1st Session S. 2165 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. Short title This Act may be cited as the Safeguard Tribal Objects of Patrimony Act of 2019 . 2. Purpose It is the purpose of this Act— (1) to carry out the United States trust responsibility to Indian Tribes; (2) to increase the maximum penalty for actions taken in violation of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act), in order to strengthen deterrence; (3) to make internationally applicable the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act), the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470aa et seq.), and the Antiquities Act under section 1866(b) of title 18, United States Code, to facilitate the international repatriation of Native American cultural items, Native American archaeological resources, and Native American objects of antiquity; (4) to access other countries’ domestic laws and law enforcement mechanisms to facilitate international repatriation by explicitly prohibiting the exportation of Native American cultural items obtained in violation of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act), Native American archaeological resources obtained in violation of the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470aa et seq.), and Native American objects of antiquity obtained in violation of the Antiquities Act under section 1866(b) of title 18, United States Code, and by creating an export certification system; (5) to confirm the authority of the President to request from foreign nations agreements or provisional measures under the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (823 U.N.T.S. 231 (1972)), to facilitate the return of Native American cultural items obtained in violation of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act), Native American archaeological resources obtained in violation of the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470aa et seq.), and Native American objects of antiquity obtained in violation of the Antiquities Act under section 1866(b) of title 18, United States Code; (6) to establish a Federal framework in order to support individuals’ and organizations’ voluntary return of items of tangible cultural heritage, which need not be obtained in violation of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act), the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470aa et seq.), or the Antiquities Act under section 1866(b) of title 18, United States Code; (7) to establish an interagency working group to ensure communication between all Federal agencies to successfully implement the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act), the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470aa et seq.), and the Antiquities Act under section 1866(b) of title 18, United States Code; (8) to establish a Tribal working group to provide recommendations regarding implementation of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act), the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470aa et seq.), and the Antiquities Act under section 1866(b) of title 18, United States Code; and (9) to create a Freedom of Information Act exemption for information submitted by Indian Tribes pursuant to this Act. 3. Definitions In this Act, the following definitions apply: (1) Cultural affiliation The term cultural affiliation has the meaning given the term in section 2 of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 ). (2) Indian Tribe The term Indian Tribe — (A) has the meaning given the term Indian tribe in section 2 of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 ); and (B) includes Native Hawaiian organization as that term is defined in section 2 of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 ). (3) Item Requiring Export Certification The term Item Requiring Export Certification means— (A) a Native American cultural item as defined in section 2 of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 ); (B) a Native American archaeological resource as defined in section 3 of the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470bb ); or (C) a Native American object of antiquity within the meaning of section 1866(b) of title 18, United States Code. (4) Item Prohibited from Exportation The term Item Prohibited from Exportation means— (A) a Native American cultural item as defined in section 2 of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 ) and obtained in violation of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act); (B) a Native American archaeological resource as defined in section 3 of the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470bb ) and obtained in violation of the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470aa et seq.); (C) a Native American object of antiquity within the meaning of and obtained in violation of the Antiquities Act under section 1866(b) of title 18, United States Code; or (D) a Native American cultural item as defined in section 2 of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 ), Native American archaeological resource as defined in section 3 of the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470bb ), or Native American object of antiquity within the meaning of the Antiquities Act under section 1866(b) of title 18, United States Code, that is under active Federal investigation. (5) Native American The term Native American — (A) has the meaning given the term in section 2 of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 ); and (B) includes Native Hawaiian as that term is defined in section 2 of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 ). (6) Secretary The term Secretary means the Secretary of the Interior. (7) Tangible cultural heritage The term tangible cultural heritage means— (A) Native American human remains; or (B) culturally, historically, or archaeologically significant objects, resources, patrimony, or other items that are affiliated with a Native American culture. 4. Enhanced NAGPRA penalties Section 1170 of title 18, United States Code, is amended by striking 5 years each place it appears and inserting 10 years . 5. Export prohibition and certification system and international agreements (a) Export prohibitions (1) In general It shall be unlawful for any person to export or otherwise transport from the United States any Item Prohibited from Exportation. (2) Penalties Any person who violates paragraph (1) shall be fined in accordance with section 3571 of title 18, United States Code, and shall be imprisoned for not more than 1 year for a first violation and not more than 10 years for a second or subsequent violation. (b) Export certification system (1) Export certification requirement (A) In general No Item Requiring Export Certification may be exported from the United States without first having obtained an export certification in accordance with this subsection. (B) Publication The Secretary shall, in consultation with Indian Tribes, publish in the Federal Register a notice that includes— (i) a description of characteristics typical of Items Requiring Export Certification, which shall be sufficiently specific and precise to ensure an export certification is required only of such Items Requiring Export Certification and that fair notice is given to exporters and other persons as to which items require an export certification under this paragraph; and (ii) a description of characteristics typical of items that do not qualify as Items Requiring Export Certification and therefore do not require an export certification under this paragraph, which shall— (I) clarify that objects made for commercial purposes generally do not qualify as an Item Requiring Export Certification; and (II) clarify that in some circumstances receipts or certifications issued by Indian Tribes may be used as evidence to demonstrate a particular item does not qualify as an Item Requiring Export Certification. (2) Eligibility for export certification An Item Requiring Export Certification is not an Item Prohibited from Exportation and is therefore eligible for an export certification if it is not under ongoing Federal investigation and it— (A) was not obtained within the time and location provenance parameters of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act), the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470aa et seq.), or the Antiquities Act under section 1866(b) of title 18, United States Code, and the export of the Item Requiring Export Certification would not otherwise violate any other provision of law; (B) was excavated or removed pursuant to a permit issued under section 4 of the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470cc ) or section 320302 of title 54, United States Code, or in compliance with section 3(c) of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3002(c) ), if the permit for excavation or removal authorizes export, and the export of the Item Requiring Export Certification would not otherwise violate any other provision of law; or (C) is accompanied by written confirmation from an Indian Tribe that the exporter has a right of possession, as defined in section 2 of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 ), or that the Indian Tribe has relinquished title or control, as provided for in section 3 of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3002 ), of the Item Requiring Export Certification, and the export of the Item Requiring Export Certification would not otherwise violate any other provision of law. (3) Export certification application and issuance procedures (A) Applying for export certification (i) Attestation (I) In general With respect to each Item Requiring Export Certification to be exported from the United States, the exporter shall make an attestation (on an attestation form described in subclause (III)) that, to the best of the exporter's knowledge and belief, the exporter is not exporting an Item Prohibited from Exportation. (II) Consequences of false statement Any willful or knowing false statement made on an attestation form under subclause (I) shall— (aa) subject the exporter to criminal penalties pursuant to section 1001 of title 18, United States Code; and (bb) prohibit the exporter from receiving an export certification for any Item Requiring Export Certification through attestation alone in the future. (III) Attestation form An attestation form shall describe and provide pictures of each Item Requiring Export Certification. The Secretary shall consult with Indian Tribes in designing the attestation form. (ii) Additional evidence If attestation alone is no longer permitted or an export certification is delayed or denied, notice shall be given to the exporter, who may provide the Secretary with evidence to establish that the Item Requiring Export Certification is not an Item Prohibited from Exportation. (B) Availability of applications The Secretary shall make each export certification application available to Indian Tribes via a secure website immediately after each export certification application has been submitted. (C) Issuance of export certification The Secretary, in consultation with Indian Tribes, may issue an export certification for an Item Requiring Export Certification that is not an Item Prohibited from Exportation and is therefore eligible for export. (D) Revocation of export certification If credible evidence is provided that indicates an item that received an export certification qualifies as an Item Prohibited from Exportation, the Secretary may immediately revoke the export certification. In making a determination about whether revocation is warranted, Indian Tribes shall be consulted. (4) Seizure, forfeiture, and return (A) Seizure Any Item Requiring Export Certification that an exporter attempts to export without an export certification shall be subject to seizure by the U.S. Customs and Border Protection. (B) Forfeiture An item found to qualify as an Item Prohibited from Exportation shall be forfeited, consistent with chapter 46 of title 18, United States Code, to the Federal Government and repatriated to the Indian Tribe pursuant to the process provided for under the law under which it is found to be obtained in violation. (C) Return to exporter An Item Requiring Export Certification that is seized under subparagraph (A) for which credible evidence does not establish within 60 days that it is an Item Prohibited from Exportation shall be returned to the exporter but shall not receive an export certification at that time. (5) Administrative appeal If the Secretary denies an export certification or seizes an Item Requiring Export Certification under this subsection, the exporter shall upon request be given a hearing on the record under such rules and regulations as the Secretary may promulgate. (6) Fees Reasonable fees may be collected for the processing of export certification applications under this subsection. (7) Training The Secretary of Homeland Security, acting through the Commissioner of U.S. Customs and Border Protection, shall require all appropriate personnel of U.S. Customs and Border Protection to participate in training to identify Items Requiring Export Certification for purposes of this Act and the amendment made by this Act. Indian Tribes shall be consulted in developing and delivering such trainings. (8) Voluntary return Whoever seeks to export an Item Requiring Export Certification without a required export certification but voluntarily returns it to the Indian Tribe with a likely cultural affiliation prior to active Federal investigation shall not be prosecuted for such violation with respect to the Item Requiring Export Certification. The exporter’s application to obtain an export certification does not qualify as triggering an active Federal investigation. (c) Agreements To request return from foreign countries The President is authorized to request from a State Party agreements or provisional measures pursuant to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (823 U.N.T.S. 231 (1972)), subject to the limitations of Articles 6 and 9, under which the President may request the return from the State Party of Items Prohibited from Exportation. (d) Rules and regulations All rules and regulations necessary and appropriate to carry out the provisions of this section shall be prescribed by the Secretary and shall be made in consultation with Indian Tribes. 6. Voluntary return of tangible cultural heritage (a) Liaison The Secretary and the Secretary of State shall each designate a liaison to facilitate the voluntary return of tangible cultural heritage. (b) Trainings and workshops The individuals listed in subsection (a) shall hold trainings and workshops for representatives of Indian Tribes and collectors, dealers, and other individuals and organizations regarding the voluntary return of tangible cultural heritage. (c) Referrals (1) In general The Secretary shall refer individuals and organizations to one or more Indian Tribes with a likely cultural affiliation to tangible cultural heritage for the purpose of facilitating the voluntary return of tangible cultural heritage. (2) Referral representatives The Secretary shall compile a list of representatives from each Indian Tribe for purposes of referral under paragraph (1). (3) Consultation The Secretary shall consult with Indian Tribes before making a referral under paragraph (1). (4) Third-party experts The Secretary may utilize third parties with relevant expertise, including universities, museums, dealers, collector organizations, and others, in making determinations regarding to which Indian Tribe an individual or organization should be referred under paragraph (1). (d) Legal liability This section shall not impose additional penalties or legal liability. (e) Tax documentation The Secretary’s voluntary return facilitation shall include provision of tax documentation for a deductible gift to an Indian Tribe. (f) Repatriation under Native American Graves Protection and Repatriation Act The voluntary return provisions of this section shall apply to a specific item of tangible cultural heritage only to the extent that the repatriation provisions under section 7 of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3005 ) do not apply to such item of tangible cultural heritage. 7. Interagency working group (a) In general The Secretary shall convene an interagency working group consisting of representatives from the Departments of the Interior, Justice, State, and Homeland Security. (b) Goals The goals of the working group are— (1) to facilitate repatriation to Indian Tribes of items that have been illegally removed or trafficked in violation of law; (2) to protect such items still in Indian Tribes’ possession; and (3) to improve Federal agencies’ implementation of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 et seq.) (including section 1170 of title 18, United States Code, as added by the Native American Graves Protection and Repatriation Act), the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470aa et seq.), the Antiquities Act under section 1866(b) of title 18, United States Code, and other relevant laws. (c) Responsibilities The interagency working group shall aid in implementation of other provisions of this Act or the amendments made by this Act, including regarding voluntary return and halting international sales, and shall collaborate with the Tribal working group created pursuant to this Act. 8. Tribal working group (a) In general The Secretary shall convene a Tribal working group consisting of representatives of Indian Tribes to advise the Federal Government. (b) Recommendations The Tribal working group convened under subsection (a) may provide recommendations regarding— (1) the voluntary return of tangible cultural heritage by collectors, dealers, and other individuals and non-Federal organizations that hold such tangible cultural heritage; and (2) the elimination of illegal commerce in the United States and foreign markets. (c) Requests The Tribal working group convened under subsection (a) may make formal requests to initiate certain agency actions, including— (1) requesting the Department of Justice initiate judicial proceedings domestically or abroad to aid in repatriation; and (2) requesting the Department of State initiate dialogue through diplomatic channels to aid in repatriation. (d) Agency and committee assistance (1) In general The agencies and committees described in paragraph (2) shall provide information and assistance to the Tribal working group convened under subsection (a) upon request by the Tribal working group. (2) Agencies and committees The agencies and committees described in this paragraph are the following: (A) The Department of the Interior. (B) The Department of Justice. (C) The Department of Homeland Security. (D) The Department of State. (E) The Native American Graves Protection and Repatriation Review Committee established under section 8 of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3006 ). (F) Any other relevant Federal agency. 9. Freedom of Information Act exemptions (a) In general Except as provided in subsection (b), information that a representative of an Indian Tribe submits to any Federal agency pursuant to this Act, or any amendment made by this Act, shall qualify for exemption from disclosure under the Freedom of Information Act pursuant to section 552(b)(3) of title 5, United States Code. (b) Exception An Indian Tribe may request and shall receive its own information, as described in subsection (a), from the Federal agency to which it submitted its information.