Section 1 Short title
This Act may be cited as the “Native American and Native Hawaiian Cultural Heritage Protection Act of 2018”.
Native American and Native Hawaiian Cultural Heritage Protection Act of 2018
A BILL
To enhance protections of Native American cultural heritage, and for other purposes.
Sec. 2 Table of contents
The table of contents for this Act is as follows:
Sec. 3 Findings and purpose
Findings— The Congress reaffirms House Congressional Resolution 122 of the 114th Congress, in which Congress stated its support for efforts to stop the theft, illegal possession or sale, transfer, and export of Tribal cultural items of American Indians, Alaska Natives, and Native Hawaiians in the United States and internationally.
Purposes— The purposes of this Act are to—
authorize permits that include removal for the benefit of and subsequent return to Indian Tribes of archaeological resources pursuant to the Archaeological Resources Protection Act and objects of antiquity pursuant to the Antiquities Act;
explicitly prohibit 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. or 18 U.S.C. 1170), 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;
confirm the authority of the President to request from foreign nations agreements or provisional measures under Article 9 of 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. or 18 U.S.C. 1170), 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;
create an export certification system to facilitate the export of lawfully possessed Native American and Native Hawaiian items and the international repatriation of unlawfully exported covered items;
establish a Federal framework to facilitate individuals’ and organizations’ voluntary return of Native American items, without regard for whether such items were obtained in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq. or 18 U.S.C. 1170), 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;
establish a Federal framework in order to halt international sale of Native American cultural items obtained in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq. or 18 U.S.C. 1170), 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;
establish working groups to provide recommendations to identify and facilitate the voluntary return of Native American items and to identify Native American cultural items obtained in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq. or 18 U.S.C. 1170), 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;
require U.S. Customs and Border Protection to provide training to identify covered items; and
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.), 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.
Sec. 4 Definitions
In this Act, the following definitions apply:
Archaeological resource— The term archaeological resource has the meaning given the term in section 3 of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470bb).
Covered item— The term covered item means Native American cultural items as defined in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001), Native American archaeological resources as defined in section 3 of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470bb), or Native American objects of antiquity within the meaning of the Antiquities Act under section 1866(b) of title 18, United States Code.
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).
Cultural items— The term cultural items has the meaning given the term in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001).
Indian Tribe— The term Indian Tribe has the meaning given the term in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001).
Native american— The term Native American has the meaning given the term in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001).
Native hawaiian organization— The term Native Hawaiian organization has the meaning given the term in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001).
Object of antiquity— The term object of antiquity means an item within the meaning of the Antiquities Act under section 1866(b) of title 18, United States Code.
Sec. 5 Removal for the benefit of and return to Indian Tribes
Archaeological Resources Protection Act— The Archaeological Resources Protection Act of 1979 is amended—
in section 4(b) (16 U.S.C. 470cc(b))—
in paragraph (2), by inserting “or for the benefit of an Indian Tribe” after “public interest”; and
in paragraph (3) by inserting “an Indian Tribe or” before “a suitable university”; and
in section 5 (16 U.S.C. 470dd) by inserting “and such Indian or Indian Tribe shall have the right of first refusal” after “jurisdiction over such lands”.
Antiquities Act— Section 320302(b) of title 54, United States Code is amended—
in paragraph (1), by inserting “a federally recognized Indian Tribe,” before “a reputable museum”; and
in paragraph (2), by inserting “by a federally recognized Indian Tribe or” before “in a public museum” and adding at the end “, provided that the federally recognized Indian Tribe with the closest cultural affiliation shall have the right of first refusal”.
Sec. 6 Export restrictions and authorities
Voluntary return of covered items— Whoever seeks to export a covered item without a required export certification but voluntarily returns the covered item to the Indian Tribe with a likely cultural affiliation prior to active investigation shall not be prosecuted for such violation with respect to the covered item. The process of obtaining an export certification does not qualify as active investigation.
Export restriction—
In general— It shall be unlawful for any person to export or otherwise transport from the United States Native American cultural items obtained in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq. or 18 U.S.C. 1170), 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 covered items under active Federal investigation.
Penalties— Any person who violates paragraph (1) knowing that the covered items were obtained in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3002 et seq. or 18 U.S.C. 1170), 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, 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.
Export certification—
When export certification required—
Prohibition on export without certification— No covered item may be exported from the United States without first having obtained an export certification in accordance with this subsection.
Publication— The Secretary shall, in consultation with Indian Tribes, publish in the Federal Register a notice that includes—
a description of characteristics typical of covered items which shall be sufficiently specific and precise to ensure export certification is required only of such covered items and that fair notice is given to exporters and other persons as to which items require an export certification; and
a description of items that do not qualify as covered items and therefore do not require an export certification under this paragraph, which shall—
clarify that objects made for commercial purposes generally do not qualify as a covered item; and
clarify that in some circumstances receipts or certifications issued by Indian Tribes or Tribal artisans may be used as evidence to demonstrate a particular item does not qualify as a covered item.
Eligibility for export certification— A covered item, absent an ongoing Federal investigation, shall be deemed eligible for export certification if it—
was not obtained in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3002 et seq. or 18 U.S.C. 1170), 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 covered item would not otherwise violate any other provision of Federal law;
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 covered item would not otherwise violate any other provision of Federal law; or
is accompanied with a confirmation from an Indian Tribe confirming the person’s right of possession, as defined in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001), to the covered item, or confirming 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 covered item, and the export of the covered item would not otherwise violate any other provision of Federal law.
Export certification procedures—
Export certification process—
Attestation— An attestation shall be made by the exporter through one of the procedures set forth below stating that to the best of the applicant’s knowledge and belief, the applicant is not exporting a Native American cultural item obtained in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq. or 18 U.S.C. 1170), a Native American archaeological resource obtained in violation of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.), or a Native American object of antiquity obtained in violation of the Antiquities Act under section 1866(b) of title 18, United States Code.
Attestation form— An attestation form, which shall describe and provide a picture of the covered items, shall be submitted by an exporter as an electronic filing through the Automated Export System (AES) for all commercial shipments including covered items. An exporter’s attestation shall be required for covered items prior to the issuance of an export certification under the AES system.
Information provided by CBP— U.S. Customs and Border Protection shall provide to the Secretary the information in electronic declarations that include covered items.
Export certification required— All covered items must receive an export certification through the AES system regardless of monetary value.
False statements— Any willful or knowing false statement made on an attestation document described in clauses (i) through (iv) shall—
subject the applicant to criminal penalties pursuant to section 1001 of title 18, United States Code; and
prohibit the applicant from receiving an export certification for covered items through attestation in the future.
Issuance of export certification—
For commercial shipments valued at less than $2,500.00 that include covered items, the exporter shall complete the attestation process and will immediately receive an export certification from U.S. Customs and Border Protection through the AES system. The exporter is not required to obtain an Internal Transaction Number (ITN).
For commercial shipments valued at $2,500 or more that include covered items—
the exporter must complete the attestation process;
U.S. Customs and Border Protection must consult with the Secretary and with Native American tribes and Native Hawaiian organizations regarding issuing an export certification;
U.S. Customs and Border Protection will issue an export certification through the AES system—
within 6 days of completion of the attestation process unless credible evidence is provided that indicates the covered item was obtained in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3002 et seq. or 18 U.S.C. 1170), 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, or of other United States law or the covered item is under active Federal investigation; or
with notice to the exporter, U.S. Customs and Border Protection can extend the review of an application for certification for up to 30 days if credible evidence is provided which requires investigation, after which certification shall be approved or denied, consistent with clause (iii); and
once U.S. Customs and Border Protection issues the export certification and upon completion of the AES application, the exporter will receive an Internal Transaction Number (ITN) through AES.
Rule of construction— Denial of export certification shall not in itself enable seizure or in any way affect the legal status of an item under existing United States law.
Additional evidence— If an export certification is delayed or denied, notice shall be given to the exporter, who may provide U.S. Customs and Border Protection with evidence to establish that the covered item is not prohibited from export.
Revocation of export certification— If credible new evidence is provided that indicates a covered item that received an export certification was obtained in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq. or 18 U.S.C. 1170), Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.), or Antiquities Act under section 1866(b) of title 18, United States Code, or other Federal law, or is under active Federal investigation, U.S. Customs and Border Protection may immediately revoke export certification if prior to export, and shall obtain approval of a United States court to revoke the export certification, after export has taken place. In making a determination about whether revocation is warranted, Indian Tribes and Native Hawaiian organizations shall be consulted.
Seizure and forfeiture—
Seizure— Any covered item that a person is attempting to export without an export certification described in this subsection shall be subject to seizure by United States customs officers and a Notice of Detention shall be issued to the exporter.
Forfeiture— A covered item seized under clause (i) that is found to be obtained in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3002 et seq. or 18 U.S.C. 1170), 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, shall be forfeited, consistent with chapter 46 of title 18, United States Code, to the Federal Government or repatriated to the Indian Tribe pursuant to the process provided for under the law under which it is found to be obtained in violation. The provisions of section 983(c) of title 18, United States Code, shall apply to any forfeiture under this Act.
Return to exporter— A covered item seized under clause (i) for which credible evidence does not establish within 60 days that it was obtained in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3002(c) et seq. or 18 U.S.C. 1170), 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, shall be returned to the exporter but shall not receive an export certification at that time.
Appeal— If the U.S. Customs and Border Protection denies an export certification, issues a Detention Notice, or seizes a covered item under this subsection, the applicant shall, upon request, be given a hearing on the record.
Information in filings— The Secretary shall make information on the covered items included in the filings available to Native American tribes and Native Hawaiian organizations via a secure website or other method in compliance with AES procedures.
Agreements To request return from foreign countries— The President is authorized to request from a State Party agreements or provisional measures subject to the limitations of Article 9 of 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 request the return from the State Party cultural items that were obtained in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq. or 18 U.S.C. 1170), 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.
Sec. 7 Voluntary return of Native American and Native Hawaiian items
Liaison— The Secretary and the Secretary of State shall each designate a liaison to facilitate the voluntary return of Native American items.
Trainings and workshops— The individuals listed in subsection (a) shall hold trainings and workshops for representatives of Indian Tribes and Native Hawaiian organizations and collectors, dealers, other individuals and organizations regarding the voluntary return of Native American items.
Referrals—
In general— The Secretary shall refer individuals and organizations to one or more Indian Tribes or Native Hawaiian organizations with a likely cultural affiliation to Native American items for the purpose of facilitating the voluntary return of Native American items.
Referral representatives— The Secretary shall compile a list of representatives from each Indian Tribe and Native Hawaiian organization for purposes of referral under paragraph (1).
Consultation— The Secretary shall consult with Indian Tribes and Native Hawaiian organizations before making a referral under paragraph (1).
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 or Native Hawaiian organization an individual or organization should be referred under paragraph (1).
Legal liability— This section shall not impose additional penalties or legal liability.
Immunity— Any person who voluntarily returns covered items prior to active investigation shall have immunity from criminal prosecution for taking or holding such items.
Repatriation under native american graves protection and repatriation act— The voluntary return provisions of this section shall apply to a specific Native American item 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.
Tax documentation— Voluntary return facilitation shall include provision for tax documentation of deductible gifts of Native American items to Native American tribes and Native Hawaiian organizations.
Sec. 8 Halting international sales
Request Indian Tribe or Native Hawaiian organization— An Indian Tribe or Native Hawaiian organization may submit to the liaison designated by the Secretary of State a request that the United States become involved in halting the international sale of Native American cultural items obtained in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq. or 18 U.S.C. 1170), 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. Such a request shall include—
a certification that the Indian Tribe or Native Hawaiian organization submits evidence the item was illegally removed or trafficked in violation of Federal law; and
any other relevant information establishing that the item is protected under Federal law.
Department of state action— Not later than 15 days after receipt of a request under subsection (a) or before the sale is finalized, whichever is sooner, the Secretary of State shall contact—
the foreign government and person intending to sell the item to request that—
the sale not take place; and
the item be returned to the relevant Indian Tribe or Native Hawaiian organization; and
the Department of Justice to transmit the request and any other relevant information.
Department of justice action—
In general— Upon receipt of a request from the Secretary of State under subsection (b), the Attorney General shall contact the appropriate Indian Tribe or Native Hawaiian organization to consult the Tribe or organization regarding legal options with regard to the sale or intended sale of the item, which may include filing criminal charges domestically or abroad against the seller or the foreign government or person intending to sell the item.
Consultation with Indian Tribe and Native Hawaiian organization— The Attorney General shall consult the appropriate Indian Tribe or Native Hawaiian organization regarding whether to initiate legal action and whether any legal action that the Attorney General commenced should be dismissed, in order to facilitate voluntary return of the item.
Requests from tribe— In the case that an Indian Tribe or Native Hawaiian organization submits to the Attorney General a request that the Attorney General cease pursuing legal action with regard to the sale of the Indian Tribe’s or Native Hawaiian organization’s item, the Attorney General shall promptly cease pursuing such legal action.
Sec. 9 Working groups
In general— The Secretary shall convene a working group consisting of representatives of Indian Tribes and Native Hawaiian organizations, and a working group consisting of Native American and Native Hawaiian art dealers, collectors, and museums to advise the Federal Government. The Secretary’s liaison designated to facilitate voluntary return under section 7 shall be the main point of contact.
Recommendations— The working group convened under subsection (a) may provide recommendations regarding—
identification of which Indian Tribe or Native Hawaiian organization may be associated with an item for purposes of taking action under this Act;
the voluntary return of items by collectors, dealers, and other individuals and organizations that hold such items;
the elimination of illegal commerce in items in the United States and foreign markets; and
the repatriation to Indian Tribes and Native Hawaiian organizations of items that have been illegally removed or trafficked in violation of Federal law.
Agency and committee assistance—
In general— The agencies and committees described in paragraph (2) shall provide information and assistance to the working groups convened under subsection (a) upon request by the working groups.
Agencies and committees— The agencies and committees described in this subsection are the following:
The Department of the Interior.
The Department of Justice.
The Department of Homeland Security.
The Department of State.
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).
Any other relevant Federal agency.
Sec. 10 U.S. Customs and Border Protection training
The Secretary of Homeland Security, acting through the Commissioner of Customs and Border Protection, shall require all appropriate personnel of U.S. Customs and Border Protection to participate in training to identify covered items for purposes of this Act and the amendments made by this Act.
Sec. 11 Interagency working group
In general— The Secretary shall convene an interagency working group consisting of representatives from the Departments of Interior, Justice, State, and Homeland Security.
Goals— The goals of the working group are to facilitate repatriation to Indian Tribes and Native Hawaiian organizations of items that have been illegally removed or trafficked in violation of Federal law; to protect such items still in Indian Tribes’ and Native Hawaiian organizations’ possession; and to improve Federal agencies’ implementation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.), the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.), and other relevant laws.
Responsibilities— The interagency working group shall aid in implementation of other provisions of this Act, including regarding voluntary return of Native American items and halting international sales, and shall collaborate with the working groups created pursuant to this Act.