STOP Act Update - August 2020
On June 10, 2020, the Senate Committee on Indian Affairs took written testimony on the Safeguard Tribal Objects of Patrimony Act of 2019 (STOP Act), S. 2165. ATADA President, Kim Martindale submitted testimony to the committee, a copy of which can be found here: https://atada.org/atada-blog/2020-stop-act-testimony
On July 29, 2020, the Senate Committee on Indian Affairs took just three minutes to vote on the Safeguard Tribal Objects of Patrimony Act of 2020 (STOP Act), S. 2165, a substitute for the bill commented on in the testimony submitted on June 10th. The text of the amended bill was not made public before the hearing, but its substance remains largely the same. The vote passes the amended version of the bill on to the full Senate for consideration. Key provisions are listed below. In most respects, the serious negative consequences remain the same as in the version of the STOP act introduced in 2019.
ATADA remains committed to working with all parties to restore sacred and ceremonial items to the tribes while respecting individual’s constitutional rights. Unfortunately, the substitute does little to address the basic flaws in S. 2165, beyond providing an essential mens rea standard for the export prohibition. In fact, the substitute bill contains almost all of the flaws found in the base bill.
The newly revised version of S. 2165:
Undermines constitutional protections guaranteed to American citizens, placing the burden of proof on the applicant, not the government and reversing the American concept of innocent until proven guilty. It places the burden of proof on exporters challenging seizure to show that an item IS lawfully owned, an impossible task when objects have often circulated for more than one hundred years in trade.
Includes a partial mens rea provision requiring knowing violation. One aspect of the revised bill is an improvement on past versions, because a criminal violation exists when an exporter knows that the object was acquired in violation of US law, or because the exporter knowingly failed to follow export permit procedures. However, S. 2165 will subject U.S. citizens and visiting tourists to felony charges, fines, imprisonment, and loss of property based on a vague standard that they in “the exercise of due care should have known” that an object was “unlawfully taken, possessed, transported or sold” “in violation of any Federal law or treaty.”
Potentially restricts commercially made and legal items as tribal heritage. Affects objects of any value, even $1, and both new objects and objects in commercial circulation more than 100 years.
Sets no time-limit for review and gives limitless scope to the objects that cannot be exported. Fails to utilize an established Customs system with clear rules and substitutes a cumbersome one where criteria will be secret, known only to Tribes.
Excludes from possible tribal claims only items made “solely” for commercial purposes, when virtually ALL trade in Native American items for 140 years has been in items made for Native Americans for themselves as well as for sale. The bill then grants Tribes the ability to halt exports even of solely commercial items if Tribes challenge this presumption.
Explicitly allows evidence to be deleted from government records at the request of tribes. S. 2165’s new ‘Deletion from Database” provision provides that on request by an Indian Tribe or Native Hawaiian organization, the Secretary shall delete an export certification application from the database.
Effectively bypasses NAGPRA and ARPA processes for exporting museums and institutions.
Provides $3,000,000 in funding for actions under the bill.
We continue to monitor the status of this proposed legislation. A date for consideration by the full Senate has not been set, nor has a corresponding substitute bill been approved by the House at this time.
In the near future, we will be providing more detailed information on how to contact your representatives to express opinions about this proposed legislation.
Sincerely,
The ATADA Board of Directors
You can read the text of S.2165 by clicking below.
ATADA Written Testimony
June 10, 2020