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On behalf of the Mohegan Tribe of Connecticut, Hobbs Straus assisted in obtaining one of the first successful issuances of commercial bonds to finance the construction of an Indian casino.

General Memorandum 16-069

General Memorandum 16-069
Efforts to Enhance Protection of Native American Cultural Objects

The Firm has recently been involved in a number of efforts designed to expand protection of Native American cultural objects, both by keeping them at home with their tribal communities and facilitating their repatriation domestically and internationally.

Tribes' possession and protection of their cultural objects, including their sacred objects and objects of cultural patrimony, is imperative for their cultural practices and ability to pass those practices down to future generations. Unfortunately, many of these important cultural objects are illegally removed from tribes and trafficked domestically and internationally. Once abroad, tribes are forced to fight often-losing battles to regain possession of them. The Pueblo of Acoma has significant firsthand experience with this problem, and it is currently fighting for the repatriation from France of an important shield.

For this reason, a better understanding of the extent of the problem and possible solutions, better coordination between federal agencies, and stronger legislation is necessary. Rep. Pearce (R-NM), Sen. Udall (D-NM), and Sen. Heinrich (D-NM) have been instrumental in championing the legislative efforts now underway, with bipartisan support, including Sen. Flake (R-AZ), Sen. McCain (R-AZ), Rep. Cole (R-OK), and others. Representatives from the Department of the Interior (DOI), Department of State (State), Department of Homeland Security, and Department of Justice (DOJ) are also important partners in these efforts.

PROTECT Patrimony Resolution

The initiative that has progressed the farthest to date is the Protection of the Right of Tribes to Stop the Export of Cultural and Traditional (PROTECT) Patrimony Resolution. The Resolution is designed to acknowledge the problem of illegal removal and trafficking of protected Native American cultural objects and to call for certain preliminary actions. It supports congressional development of an explicit restriction on exportation, calls on federal agencies to consult with tribes to find ways to address the problem, and calls on state and local governments and other stakeholders to work cooperatively to resolve the problem.

The House version of the Resolution, H.Con.Res. 122, was introduced on March 2, 2016 by Rep. Pearce. It gathered broad bipartisan support, with 16 Representatives signing on as cosponsors. The House passed the Resolution on September 21, 2016. Rep. Pearce in a congressional statement described the Resolution as Congress stating that it wants to study the problem of illegal removal and trafficking, determine ways to do better, and then resolve the problem. The Senate version, S.Con.Res. 49, was introduced on July 14, 2016, by Sen. Udall and passed on September 29, 2016. Although the two versions are largely substantively the same, and have been amended to bring them closer together, they are not identical.

The Resolutions, while approved by the House and Senate, do not have the force of law but are important in expressing the views of Congress and have added impetus for enactment of legislation on this matter in the next Congress.

STOP Act

Another legislative initiative moving forward is the Safeguard Tribal Objects of Patrimony (STOP) Act. The STOP Act strengthens existing federal laws. It applies to "Native American cultural objects," which it defines to include "cultural items" protected by the Native American Graves Protection and Repatriation Act (NAGPRA), "archaeological resources" protected by the Archaeological Resources Protection Act (ARPA), and "objects of antiquity" protected by the Antiquities Act.

The STOP Act increases NAGPRA penalties, prohibits exportation of Native American cultural objects, and provides a limited immunity from federal prosecution when individuals repatriate Native American cultural objects. It also calls on the Government Accountability Office (GAO), in conjunction with specific agencies, to prepare a report covering the scope of illegal trafficking, the extent of prosecutions that take place under existing federal laws, and recommendations for eliminating trafficking and securing repatriation. Last, it creates a tribal working group to contribute information for the GAO report and to provide advice regarding methods for implementing the report's recommendations.

The Senate version of the STOP Act, S 3127, was introduced on July 6, 2016, by Sen. Heinrich. It has been referred to the Senate Committee on Indian Affairs. The House version, HR 5854, was introduced on July 14, 2016, by Rep. Lujan (D-NM). It has been referred to the House Natural Resources Subcommittee on Indian, Insular and Alaska Native Affairs and the House Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations Subcommittees.

The two versions of the STOP Act mirror each other. However, congressional staff have solicited comments from federal agencies and have also received feedback from tribes, collectors, and other stakeholders. Therefore, the bill may see amendments based on this feedback before its passage. Specifically, there is a focus on finding a way to better define or provide guidance regarding the items that qualify as protected Native American cultural objects—which is really an attempt to better define the items protected under existing federal laws, without compromising tribal sensitivities.

Funding for Cultural Items Unit

An additional legislative effort is to secure funding for a Cultural Items Unit, see H. Rept. 114-632. The House Committee on Appropriations in a June 21, 2016, report approved for inclusion in the fiscal year 2017 DOI budget $1,000,000 for a Cultural Items Unit that would be located within the Bureau of Indian Affairs Division of Law Enforcement and tasked with investing violations of NAGPRA and other similar federal laws.

GAO Report

On June 28, 2016, congressional representatives requested and on August 11, 2016, the GAO agreed to undertake a study on illegal removal and trafficking of Native American cultural objects. The GAO was asked to study the actions the federal government has taken to prevent illegal removal and trafficking, the status of the federal government's efforts to secure repatriation, the results of enforcement actions, and the market for illegal trafficking. The report requested is similar but not identical to the report requested in the STOP Act and a report that was initially requested in earlier versions of the PROTECT Patrimony Resolution.

Those who made the request include Rep. Goodlatte (R-VA), who serves as Chairman of the House Judiciary Committee; Rep. Sensenbrenner (R-WI), who serves as Chairman of the House Subcommittee on Crime, Terrorism, Homeland Security, and Investigations; and Rep. Pearce.

DOI Tribal Consultations

While these legislative efforts proceed forward, federal agencies are also working to find ways to better protect Native American cultural objects, and specifically to secure repatriation from abroad. DOI has held various listening sessions and on September 27, 2016, held its first tribal consultation. Also participating in these sessions were representatives from State and DOJ.

These agency efforts are due in part to the Pueblo of Acoma's recent work to regain possession of a shield, which was stolen from the Pueblo but recently was listed for sale at a Paris auction house. This work has required coordinating with federal officials across the federal government. Although the federal agencies have not yet determined what the final product from these sessions will be, they have indicated that they are seeking comments on pending legislative efforts. They also appear to be considering creating an interagency guidance document that would direct federal agency and tribal officials regarding the procedures federal agencies would utilize to protect Native American cultural objects and facilitate repatriation, which would undoubtedly incorporate lessons learned from repatriation efforts related to the Pueblo of Acoma's shield.

Please let us know if we may provide further information on the PROTECT Patrimony Resolution, STOP Act, Cultural Items Unit funding, GAO report, or DOI consultations.

# # #

Inquires may be directed to:
Greg Smith (gsmith@hobbsstraus.com);
Katie Klass (kklass@hobbsstraus.com); or
Akilah Kinnison (akinnison@hobbsstraus.com)

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