Update on the Safeguard Tribal Objects of Patrimony Act (STOP Act) and the Terrorism Art Antiquity Revenue Prevention Act
There are two bills currently before the Senate that are serous cause for concern for collectors, museums, and dealers in Native American and international ethnographic art.
ATADA has already alerted its membership to the potential consequences of the STOP Act, S.3127/H.5854 which is currently before both House and Senate.
The STOP Act amends NAGPRA to specifically prohibit the export of Native American and Hawaiian objects deemed tribal patrimony. The definition of tribal cultural patrimony under NAGPRA is an object has present religious and ceremonial significance to a tribe today.
The STOP Act also makes it unlawful for any person to knowingly export from the United States any Native American “cultural items” obtained in violation of four existing U.S. statutes: NAGPRA, 18 USC § 1170, ARPA, and18 USC § 1866(b). A “cultural item” as defined in the ARPA is virtually any material remains of past human life or activities over 100 years old. To oversimplify a bit, the difference between an item that is lawful to collect and trade under ARPA and one that is illegal to trade is whether it was found or collected on private land, in which case it is generally deemed lawfully acquired, or found or collected on federal or Indian land in violation of law, including the 1906 Antiquities Act, when it not lawful to collect or trade.
The STOP Act also raises the penalty for a violation of any of the above existing laws from 5 years to 10 years. And finally, the bill adds a provision granting immunity from prosecution to anyone who “repatriates” an unlawfully obtained cultural object to the “appropriate” Indian tribe or Native Hawaiian organization within two years of the STOP Act’s implementation.
The STOP Act has no system for clearing artifacts that can be sold. The STOP Act does not identify the objects each tribe considers sacred or community owned. There are over 500 federally-recognized tribes. It is impossible for citizens to know what is deemed a cultural object by each tribe.
Proponents of the STOP Act have suggested that citizens can “ask the tribe” to determine if an item should be returned or can be sold. However, the law provides no permitting system, no staff or funding, no criteria, no standards of evidence, and no means of mediation or appeal.
The STOP Act’s 2-year “amnesty” window for the return of “unlawful” tribal cultural property by private collectors without prosecution implies that possession of all cultural objects is unlawful. The STOP Act is likely to cause unwarranted returns of thousands of lawfully owned and traded objects to tribes which do not want them. Collectors may be pressured to give up objects simply out of an abundance of caution. Alternatively, lack of clear criteria or means of compliance may result in virtually no returns at all.
ATADA has submitted testimony to both the House and Senate subcommittees on the STOP Act and is engaging directly with tribal governments to find better solutions to tribal concerns. Additional information on the STOP Act and contact information for legislators is linked below.
S. 3449, the Terrorism Art Antiquity Revenue Prevention Act of 2016
A second bill before the Senate, the Terrorism Art Antiquity Revenue Prevention Act of 2016, S.3449, poses a serious threat to US art collectors, museums and dealers in foreign ethnographic, antique, and ancient art. S. 3449 could overturn 40 years of US case law and make possession as well as trade in art from virtually any foreign country illegal under US law.
Despite its name, the proposed law does nothing whatsoever to block terrorist funding. First, import of Syrian and Iraqi artifacts was already completely blocked by the Protect and Preserve International Cultural Property Act, signed into law by President Obama on May 9, 2016, as Public Law No:114-151. Second, there has been no evidence of any sales of Syrian or Iraqi art in the US that has supported ISIS or other terrorist activities.
The new proposed law, S. 3449, is a stealth attempt to end the international ethnographic and ancient art trade. It’s not the first and won’t be the last! The sponsor of the bill, Senator Kirk of Illinois, failed in his reelection bid, and no similar bill has been introduced in the House. It is therefore unlikely that there will be an attempt to pass the bill during the 2016 lame duck session. Nonetheless, ATADA is following the bill closely, and we anticipate that similar legislation will be introduced in the coming Congress in 2017.
What S. 3449 does:
- Section 2 amends the National Stolen Property Act (NSPA) to create special provisions for “cultural property.” “Cultural property” is broadly defined to include virtually all art and antiques, using the definition of cultural property in the 1970 UNESCO Convention. This includes antiquities more than one hundred years old. such as inscriptions, coins and engraved seals; objects of ethnological interest; pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand); original works of sculpture in any material; original engravings, prints and lithographs; original assemblages and montages; rare manuscripts, old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.); postage, revenue and similar stamps, singly or in collections; articles of furniture more than one hundred years old and old musical instruments.
- The threshold value to trigger criminal liability NSPA is reduced from $5,000 to $50.
- Cultural property that has been removed or excavated in violation of local law will be considered to be stolen. Stolen property would include any object removed or excavated from a foreign country in violation of a foreign local law.
- Section 3(a) requires any person who seeks to import, sell or gift any Syrian or Iraqi cultural property in the US to provide to the Secretary of Homeland Security
- information, with supporting documentation, on the provenance of the property that includes, at a minimum, when and where the property was obtained, and such other information as the Secretary of Commerce and the Secretary of Homeland Security consider appropriate.
- Section 3(b) sets up a working group to develop regulations to require dealers of cultural property to document and report information on transactions in cultural property of Iraq or Syria, and where objects were acquired; to work with participants in international art and cultural property markets to develop a Federal Government database with information on cultural property and warnings about buyers, sellers, appraisers and others with a history of conducting illegal trade in cultural property, and consider providing participants in international art and cultural property markets with access to the database.
ATADA President John Molloy, has written to the heads of the Senate Finance Committee, where the proposed bill is under consideration, urging the committee to take additional testimony before moving forward with this hastily introduced and extremely damaging bill. Other museum, collecting, and trade organizations have done likewise. ATADA and other organizations must work together to be sure this ill-considered bill and others like it do not continue to be introduced into the Senate and House.