STOP Act Information - January 2023

This information is current as of January 16, 2023. We will provide updated info as it becomes available.

THE STOP ACT HAS PASSED.
WHAT DO I NEED TO KNOW? WHAT DO I NEED TO DO?

The Safeguard Tribal Objects of Patrimony Act of 2021 (the H.R. 2930 version) was passed by the Senate on November 29, 2022 and was signed into law by President Biden. The stated purpose of the law is to stop the export and facilitate the international repatriation of cultural items prohibited from being trafficked by the Native American Graves Protection Act (NAGPRA), and archaeological resources prohibited from being trafficked by the Archaeological Resources Protection Act of 1979 (ARPA) or any other Federal law or treaty. The STOP Act explicitly prohibits the export of items obtained in violation of NAGPRA, ARPA or any other federal law and in addition creates an export certification system for other items that may be exported but only after receiving export certification from the Interior Department.

Many ATADA members have requested guidance on how to navigate the export of Native American or Native Hawaiian objects after passage of the STOP Act. We follow with the best guidance that we can offer at this early stage.

Detailed guidance can’t be offered yet as to which Items require export certification or which items ultimately will not require any certification at all to export. The definitions contained in the law itself of items covered are vague, and we do not yet have the final or even proposed implementing regulations for STOP to give us further guidance.

It will take a year, perhaps more, for the Interior Department to go through the process of issuing proposed regulations all the way through to the adoption of final regulations. In the meantime, there will be no functioning export certification system, so compliance with STOP’s export certification provisions cannot yet be expected from exporters as to “Items Requiring Export Certification” under the law.

At this point, the only provisions of STOP that are now fully effective and enforceable are those provisions related to the ban and penalties attached to the export of an “Item Prohibited From Exportation (essentially items being “trafficked” in violation of NAGPRA, ARPA or any other Federal law).

Accordingly, the best advice right now is to be very cautious if you are exporting an item. Don’t attempt to export any item that you think may have been obtained in violation of NAGPRA, ARPA or any other Federal law. Of course, you should have been following such advice even before the passage of STOP. While we don’t see a legal justification for U.S. Customs to change its procedures before STOP regulations are finalized, it is also possible that Customs could raise questions about exports of antique or prehistoric objects based upon its own interpretation of authority derived from STOP’s export ban on Items Prohibited from Exportation. So again, be very cautious when considering the export of an item which could reasonably be characterized as a “cultural item” or “archaeological resource” under NAGPRA or ARPA.

Provenance has always been important, but under STOP it will be critical if you intend to export an item. Good documentation could be the key to a smooth export process.

Until we have final implementing regulations, the best course of action is to be fully prepared to document the provenance of all the Native American and Native Hawaiian items in your inventory or collection to the greatest extent possible. The best provenance, although admittedly rare, will provide documentation of the original acquisition of the piece from a tribe, tribal member or Native Hawaiian, or the original discovery of an archaeological piece. For example, a photo of a Great Aunt at Acoma Pueblo in 1905 holding the dough bowl she just purchased, or a photo of a Great Grandfather holding an Anasazi pot that he found on his ranch in Southern Colorado in the 1930’s. The next best provenance would be documentation of an early acquisition history, the earlier the better. For example, the Harvey House souvenir shop receipt a Great Aunt received for a piece purchased in 1915; or the receipt for a Hawaiian object that a Great Grandfather purchased at an antique shop in Honolulu in 1895. If you have a documented provenance before 1979, then the object cannot have been trafficked in violation of ARPA; if you have a documented provenance before 1990, then the object cannot have been trafficked in violation of NAGPRA. It is clear that objects lacking any credible provenance at all will not be eligible for export certification under STOP, and certain types of objects with only a very recent provenance may be unlikely to receive export certification. Objects that can be characterized as funerary items are very unlikely to receive export certification as in most cases the exporter will be unable to meet the burden of proof of a “right of possession” to the such object.

Note: The information contained on ATADA’s website and in e-mail communications to its members is provided for informational purposes only and should not be construed as legal advice on any subject matter. Anyone seeking specific legal advice or assistance should retain an attorney.

The STOP ACT, HR 2930, S 1471: Draconian Legislation Threatens Collecting and Trade in Native American Art

Legislation that could lock Native American art within U.S. borders is pending again in Congress. The STOP Act threatens the tourist-dependent economy in the Southwest, calls for an unworkable export regime with no time limits, applies to objects of any age and value, lacks Constitutional safeguards and operates in secrecy – denying Freedom of Information Act access even to an exporter whose goods are seized. The STOP Act would require tourists as well as commercial exporters to submit photos and forms and obtain permissions for exports as low as $1 value.

This latest version of STOP is identical to a bill that was introduced in the Senate and was passed by the Senate, but not the House, at the end of 2020. ATADA has major concerns with STOP’s secrecy, its lack of transparency and public accountability.

ATADA supports halting illegal trade, whether it takes place in the US or overseas. We worked together with the Acoma Pueblo in 2018 to do exactly that, in a bill introduced by former NM Congressman Steve Pearce, H.R.7075.

ATADA fully supports bringing sacred items back to tribes. This is the goal of our highly successful Voluntary Returns Program, which has brought over 400 sacred objects to Native American Sovereign Nations over the last five years.

Here’s how the current STOP Act goes beyond its stated objective to ban export of illegal items: 

• Placing the burden of proof of lawful purchase from tribes on the exporter. The lack of ownership history of most items creates a de-facto export ban.

• STOP lacks a “knowing” standard threatening law-abiding citizens with criminal prosecution.

• Even “solely commercial” items can be denied export at the discretion of a tribe.

• It puts no time-limit on certification review serving as a bar to commercial transactions and foreign museum loans.

• Tribes have the right to review of all certification applications and appeals are limited, giving tribes unchecked authority to ban any and all exports.

• Tribal communications and application records are exempt even from Freedom of Information Act requests, denying exporters access to evidence to contest seizures.

The ultimate long-range goals of STOP may be those articulated by the Association of American Indian Affairs/AAIA. The AAIA has said that: “Title to items of Native American cultural heritage must be vetted with affiliated Tribal Nations.”

ATADA Written Testimony Submitted to Senate Hearing on STOP Act 2017

On November 8th, 2017, the Senate Committee on Indian Affairs held a hearing on the Safeguard Tribal Objects of Patrimony Act of 2017.  ATADA President, John Molloy, had planned to present oral testimony before the committee; however, the only person allowed to testify in person was Governor Riley of Acoma Pueblo.   The committee did allow the submission of written testimony. A copy of this testimony can be downloaded by clicking the link below. 

Written testimony was also submitted by the Committee for Cultural Policy (CCP) and the Global Heritage Alliance (GHA). Both organizations have permitted us to make those documents available.  

No votes were taken during the hearing. The House Committee on Indian Affairs has not yet met to discuss the legislation.   

The full text of the Senate and House bills can be downloaded below:

S.1400

H.R.3211

We have made progress against this legislation, but there is still much to do.  This will be an ongoing issue for some time. ATADA will continue to voice our position on this legislation. We need your help to continue this work. If you have not done so, please contribute to the ATADA Legal Fund today.  Any amount is greatly appreciated! 
If you have made a contribution in the past, please consider doing so again. 

Information on how to make your contribution can be found on the Legal Fund page: atada.org/legal-fund

Contributor information is kept confidential. 

NOTICE ON MAY 2017 AMENDMENTS TO BYLAWS / STOP Act Update

A number of questions regarding ATADA policies have been raised since the May 22, 2017 Santa Fe symposium, which included coverage of the ATADA Voluntary Returns program and the amended ATADA Bylaws, and presented ATADA’s legal response to the STOP Act. This note is to address some of those questions. We strongly encourage all members to review the changes to Articles X and XI in the ATADA Bylaws.

ATADA is a professional business organization and its primary interest is to protect the business interests of its members. ATADA remains fully committed to its original objectives, as stated on the Bylaws and Policies page of the ATADA website:

“…We support the lawful circulation, trade, collection, preservation, appreciation, and study of art and artifacts from diverse cultures. Our objectives are to promote ethical and professional conduct among art dealers, to encourage the responsible collecting, research, and study of tribal arts and culture, and to educate the public in the contribution of tribal cultures to the wealth of human experience.”

ATADA is following a multi-pronged path in order to effect positive change in the STOP Act and to increase understanding between tribes, legislators and the art trade. Along with the Voluntary Returns program and legislative input, recent amendments to the ATADA Bylaws have been enacted by the ATADA Board.

These amendments are intended to codify standard best business practices and to harmonize ATADA’s due diligence policies with those of other art trade organizations. In this, ATADA is in line with other professional art organizations in Europe and the US. Proper due diligence will protect ATADA members from false claims of poor organization, money laundering or dealing in stolen objects. These due diligence standards can be found under the Bylaws’ Article X – Trade Practices, Ethics, and Guarantees.

The Bylaws also establish ethical guidelines for ATADA members with respect to the sale of certain limited types of objects. Article X states that ATADA dealers will not deal in a very limited subset of objects that are “known to be of important current sacred, communal use to Native American tribal communities.” These terms do not include the word “ceremonial,” which is often too broadly applied. Objects ATADA has identified as inappropriate to sell are “Zuni war gods, Acoma and Laguna flat and cylinder dolls, Hopi ‘friends’, and Navajo masks,” “altar elements and items from shrines belonging to the community.” Sale of these items is already not allowed in many of the shows in which ATADA dealers sell.

Article X also states that, “ATADA does not regard items made for commercial or individual use by Native American artisans as sacred, or communal, regardless of age.” Defending this legal trade in Native American and other tribal objects is an essential task for ATADA, as a primary representative of the tribal art trade in the U.S. and internationally.

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UPDATE ON THE 2017 STOP ACT

ATADA has not yet seen a text of the new 2017 STOP Act, although we are in discussions with some of the drafters of the coming legislation. We have already responded to a summary provided to us with what we believe is helpful criticism of some elements, and with praise for the removal of a number of harmful provisions and for its inclusion of a “voluntary returns” program. We are pleased that those involved in drafting the Act believe that a voluntary returns program such as ATADA has initiated will do more than any federal legislation to bring important objects back to tribes. ATADA would like to see a STOP Act that is constitutionally sound, does not jeopardize US citizens’ property rights, facilitates and strengthens sovereign tribal institutions and encourages tribes to enact their own laws.

ATADA’s own Voluntary Returns program continues to bring important objects back to tribes. To ATADA’s knowledge, every item returned through this program to tribes has been legally purchased and owned. All returns are voluntary. ATADA is working hard to obtain documentation from the tribes so that donors can receive an appropriate tax deduction for these gifts.

ATADA efforts, both legislatively and through the Voluntary Returns program, have been successful in raising public and Congressional consciousness of the importance of the lawful trade and of flaws in recent legislation, including the 2016 TAAR Act and the 2016 STOP Act.

 ATADA encourages members to send questions about ATADA’s policies and about the symposium to David Ezziddine at director@atada.org. When you write, please let us know if we may share your questions in a group answer via email to the membership.

Update on the Safeguard Tribal Objects of Patrimony Act (STOP Act) and the Terrorism Art Antiquity Revenue Prevention Act

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.

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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:

1. 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.
2. The threshold value to trigger criminal liability NSPA is reduced from $5,000 to $50. 
3. 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.
4. 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
5. 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.
6. 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.

Testimony regarding STOP Act S.3147

On October 24, ATADA submitted written testimony on the Safeguard Tribal Objects of Patrimony Act of 2016 (STOP Act), S.3127/H. 5854. 

The full text of the testimony is available in .pdf form to download at the following link: 

On October 18, 2016, the U.S. Senate Committee on Indian Affairs held an Oversight Field Hearing on "The Theft, Illegal Possession, Sale, Transfer and Export of Tribal Cultural Items"

The following testimonies from that hearing are also available for download: 

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Honor Keeler
Director, International Repatriation Project Association on American Indian Affairs

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Governor Kurt Riley
Pueblo of Acoma

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Governor Myron Armijo
Pueblo of Santa Ana

Legislative Alert - ATADA's Position Regarding the STOP Act

ATADA’s position regarding the
“Safeguard Tribal Objects of Patrimony Act (STOP Act)”

ATADA asks its members and supporters to write letters and/or send emails or faxes about the proposed bills, S. 3127, and H. 5854, the Safeguard Tribal Objects of Patrimony Act (STOP Act) to their own senators and representatives and to members of the Senate Committee on Indian Affairs.

ATADA is committed to working with all tribes regarding patrimonial objects. We are currently discussing the law and working to build bridges between tribal communities, tribal artists, art dealers and collectors. However, ATADA has identified many serious issues with S. 3127.

• The STOP Act is unnecessary because export for sale of unlawfully acquired artifacts is already illegal under ARPA and NAGPRA.
• The STOP Act does not identify the objects each tribe considers sacred or community owned. 
• The STOP Act creates no administrative body or standards for determination of what is claimed.
• The STOP Act will damage businesses, cost jobs, and reduce tax revenue.
• While voluntary donation of important sacred objects should be encouraged, tribal legal claims for restitution of unlawfully possessed objects belong in the courts, not in wholesale restitutions.
• The STOP Act will result in consumer confusion and harm Native artisans and legitimate businesses because of the assumption that all Indian artifacts are tainted by illegality.
• The STOP Act needs additional consultation with tribes and with other impacted US stakeholders, including collectors, dealers, academics, and museums.

A complete summary of these issues can be found in our Summary of Issues - STOP Act.

Use the buttons below to download complete copies of Senate Bill 3127 and House Bill 5854, which is identical to the Senate bill. 

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Contact Your Legislators

Use this list to find your local Representative: http://www.house.gov/representatives/find/

Use this list to find your Senators: http://www.senate.gov/senators/contact/

We have compiled a list of Senators and Representatives on the Senate Committee on Indian Affairs, the House Subcommittee on Indian, Insular and Alaska Native Affairsand the House Subcommittee on Crime, Terrorism, Homeland Security, and Investigations.

Tips for writing a great letter to a legislator:

• State that your letter is about Senate Bill 3127 / House Bill 5854, the Safeguard Tribal Objects of Patrimony (STOP Act).
• Say who you are. Anonymous letters go nowhere. Include your correct name, address, phone number and email address. Otherwise, you will not get attention or a response.
• State any professional credentials or personal experience you may have, and how long you have been involved in the Native American art field.
• Keep your letter short — one page is best.
• Use specific examples to support your position.
• State what it is you want done – don’t pass the STOP Act, or fix the STOP Act so it does not damage important American values and harm US collectors, art dealers, Native artists, and museums. Express your own feelings about the STOP Act.
• Thank the member for taking the time to read your letter. NEVER be rude or aggressive.

Please note: This linked list of Senators and Representatives on the Senate and House Indian Affairs Committees has the webpages for sending emails as well. These email links almost always require you to be a resident of the state or district of the senator or representative. However, you can send a letter via mail to any senator or representative. It shows that you (and probably many others who do not bother to write) really care!

Sample Letter

Here is a sample letter to a US Senator. Please make your letter your own by personalizing it and including the issues that are most important to you. You can add from the issues mentioned above or outlined in the above referenced Summary of Issues - Stop Act.
An editable copy of the letter (MS Word format) is available for download by clicking the button.

••• Sample Text •••

The Honorable _______________ 

(Room #) (Name) Senate Office Building
United States Senate
Washington, DC 20510

Dear Senator:

My name is ________. I live in _________. I am interested in Native American art because _________.

I am deeply concerned that Senate Bill 3127 / House Bill 5854, the Safeguard Tribal Objects of Patrimony (STOP Act) will harm ________ (For example, collectors, art dealers, Native artists, museums, or educational institutions) and the public interest.

I believe that the STOP Act is not necessary; US laws already prohibit illegal trafficking in Native American artifacts. The STOP Act does not identify the objects each tribe considers sacred or community owned. There are hundreds of thousands of items of Native art that have circulated in the market for decades. It is impossible for owners of objects collected over many years to know what is deemed a cultural object by each tribe, or to know which tribe might claim an object. The law does not create any system for determining if an artifact is safe to sell. Yet the penalties for selling an object claimed as cultural property are very high!

The STOP Act will require a huge bureaucracy to identify this volume of material, almost all of which came from ordinary trade. The STOP Act will damage businesses, cost jobs, and reduce tax revenue, especially in the Southwest, where art and tourism are important to municipalities and to Native artisans. The STOP Act is unworkable, impractical and ill-considered.

Thank you for your attention to my letter.

Sincerely,

(Your Name, Address, and Telephone)

Sponsoring Senators

Below is a list of sponsoring Senators (four of these also serve on the Senate Indian Affairs Committee).

Senator Martin Heinrich, New Mexico
303 Hart Senate Office Building Washington DC 20510
(202) 224-5521
http://www.heinrich.senate.gov/
https://www.heinrich.senate.gov/contact/write-martin

Senator Tom Udall, New Mexico
531 Hart Senate Office Building Washington DC 20510
(202) 224-6621
http://www.tomudall.senate.gov
https://www.tomudall.senate.gov/?p=contact

Senator Jeff Flake, Arizona
413 Russell Senate Office Building Washington DC 20510
(202) 224-4521
http://www.flake.senate.gov
https://www.flake.senate.gov/public/index.cfm/contact-jeff

Senator John McCain, Arizona
218 Russell Senate Office Building Washington DC 20510
(202) 224-2235
http://www.mccain.senate.gov/
https://www.mccain.senate.gov/public/index.cfm/contact-form

Senator Jon Tester, Montana
311 Hart Senate Office Building Washington DC 20510
(202) 224-2644
http://www.tester.senate.gov/
https://www.tester.senate.gov/?p=email_senator

Senator Lisa Murkowski, Alaska
709 Hart Senate Office Building Washington DC 20510
(202) 224-6665
https://www.murkowski.senate.gov/
https://www.murkowski.senate.gov/contact/email

Senator Steve Daines, Montana
320 Hart Senate Office Building Washington DC 20510
(202) 224-2651
http://www.daines.senate.gov
https://www.daines.senate.gov/connect/email-steve