Earlier this year, Senator Heinrich (D-New Mexico) and Senator Murkowski (R-Alaska) reintroduced to Congress the Safeguarding Tribal Objects of Patrimony Act (the STOP Act), a bill intended to enhance protections of Native American tangible cultural heritage by, among other things, prohibiting the export of certain articles and creating an export license certification program for protected objects.
Generally, the STOP Act seeks to curb the illegal trafficking of Native cultural items that are protected under both the Native American Graves and Repatriation Act (NAGPRA) and the Archaeological Resources Protection Act (ARPA). NAGPRA restricts Native cultural items from being trafficked, which includes through sale, purchase, use for profit, or transport for sale or profit. ARPA restricts trafficking of archaeological resources, including through sale, purchase, exchange, transport, receipt, or offers to sell, purchase, or exchange. As an initial matter, the STOP Act would increase the maximum sentence for actions taken in violation of NAGPRA from 12 months to “1 year and 1 day” and for subsequent violations, the bill increases the maximum sentence from 5 years to 10 years.
The STOP Act would make it unlawful for any person to export, attempt to export, conspire to export, or otherwise transport from the United States any “cultural item” protected under NAGPRA or “archaeological resource” protected under ARPA, as those terms are defined under the relevant legislation, without proper authorization.
Per NAGPRA, cultural items include human remains as well as “associated funerary objects,” which means objects that, as a part of the death rite or ceremony of a culture, are reasonably believed to have been placed with individual human remains either at the time of death or later, and which are in the control or possession of a federal agency or museum along with the human remains. Cultural items also include "unassociated funerary objects" which covers the same funerary objects where the remains are not in the possession or control of the federal agency or museum and the objects can be identified by a preponderance of the evidence as related to specific individuals or families or to known human remains or, by a preponderance of the evidence, as having been removed from a specific burial site of an individual culturally affiliated with a particular Indian tribe.
Per ARPA, "archaeological resource" means any material remains of past human life or activities which are of archaeological interest, at least 100 years of age, and that are associated with a present-day Indian Tribe of Native Hawaiian organization and an identifiable earlier group. This includes items such as pottery, basketry, bottles, weapons, weapon projectiles, tools, structures or portions of structures, pit houses, rock paintings, rock carvings, intaglios, graves, human skeletal materials, or any portion or piece of any of the foregoing items. Nonfossilized and fossilized paleontological specimens, or any portion or piece thereof, are only considered archaeological resources if found in an archaeological context.
To monitor the export of cultural items and archaeological resources as well as the trade in such objects generally, the bill creates an export certification system. All covered cultural items and archaeological resources would require either export certification or export authorization from an Indian Tribe or Native Hawaiian organization with a cultural affiliation. The bill confirms that the President has the authority to request other countries to enforce U.S. export requirements for these articles at their own border as a way of discouraging commerce in and collection of these protected items.
When applying for an export certification, an applicant must sufficiently describe the item, provide pictures and all provenance records, and include an attestation that to the best of the applicant’s knowledge and belief, the applicant is not attempting to export a prohibited item.
CBP will have the authority to detain any item requiring export certification that is not accompanied by the appropriate certification and deliver the item to the Secretary of the Interior for seizure. The Act then authorizes forfeiture of any violating item and its immediate repatriation. Moreover, persons found to be in violation of the export requirements may be subject to civil monetary penalties equal to the cost of restoring and repatriating the item and/or imprisonment.
The bill also establishes a framework for voluntary returns by individuals or organizations of items of “tangible cultural heritage,” which includes items covered by NAGPRA and ARPA. In some cases, where a protected item that was attempted to be exported without a certificate is returned prior to the commencement of an active federal investigation, the violator will not be prosecuted. Additionally, the STOP Act would create two working groups, one interagency group and one Native working group, to assist in the implementation of the ACT.
The STOP Act successfully passed through the Senate by unanimous consent last December though the legislative session ended before its passage in the House. As of July 2021, the bill has been placed on the Senate Legislative Calendar. According to Senator Heinrich, the Act has all the support and momentum within the 117th Congress that it needs to finally get over the finish line. Given the Act’s widespread, bipartisan support, we anticipate its passage within the year.
For any questions on existing or proposed legislation restricting the trade in certain Native American cultural objects or archaeological resources, or export controls generally, please contact a trade attorney at Barnes, Richardson & Colburn LLP.