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.

Return of Yeii Mask to the Navajo Nation

ATADA would like to thank the Navajo Nation for their guidance in the return of this traditional Jish to the proper caretakers.

To date, the ATADA Voluntary Returns program has helped facilitate the return of over 350 important sacred and ceremonial objects. This vital work continues to build positive relationships between communities. We remain committed to the idea that working together is the best way to bridge divides and forge a better world for all people.

Click here to learn more about the Voluntary Returns Program.

Open Letter on Damaging Anti-Money Laundering Legislation

From: Will Hughes
Date: March 23, 2022

ATADA Members,

Below is a link to an important open letter from CINOA (joined by ATADA) which was published by the Art Newspaper. It was submitted to publications in Europe & the U.S. and we expect it to be widely picked up, in whole or in part.

https://www.theartnewspaper.com/2022/03/14/damaging-and-unjust-legislation-linking-art-and-antiques-trade-to-money-laundering-and-terrorism-financing-must-stop-industry-body-says


Sincerely,
Will Hughes

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Support the ATADA Legal Fund

You can help us continue our work to protect your rights as dealers and collectors. Your contribution is greatly appreciated.

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A Better Alternative to the STOP Act

ATADA, the Authentic Tribal Art Dealers Association, believes it is crucial to honor Native American traditions, to ensure the health and vitality of tribal communities, and to respect the tribes’ sovereign rights. That is why both ATADA and the Acoma Pueblo worked with New Mexico Congressman Steve Pearce when he introduced a 2018 bill, H.R. 7075, The Native American and Native Hawaiian Cultural Heritage Protection Act.

 H.R. 7075 was a far better bill. It was supported by Acoma Pueblo and ATADA. It addressed many of the same goals as the current STOP Act. It banned the export of illegal items. It enabled tribal review. Unlike STOP’s burdensome export system, which would have to be created from scratch, H.R. 7075 used a permitting process already familiar to Customs and provided for a more user-friendly certification process.

 Importantly, it preserved the rights of all Americans to due process – which STOP does not.

 That compromise has been rejected by Acoma’s new leadership. STOP substitutes a vague, start-from-scratch permitting system, without public accountability. In fact, STOP would explicitly restrict export of commercial items at the discretion of the tribes.

 ATADA supports legislation to preserve tribal heritage. Wouldn’t it be better to amend STOP, using the 2018 Native American and Native Hawaiian Cultural Heritage Protection Act as a model acceptable to all?

 ATADA should be judged by its actions. In 2016, ATADA created the Voluntary Returns Program, a community-based initiative that has so far brought over 300 sacred and highly valued ceremonial objects to Native American tribes, completely free. Returns take place through a consultative process in which ATADA representatives work directly with community and spiritual leaders of Native Nations. ATADA is truly committed to bringing sacred objects back to tribes.

War God Carving Returned to Zuni Pueblo by Cowan's Auctions

In late August, a 15-inch wooden war god which had been consigned to Cowan’s Auctions was returned to Zuni Pueblo. Danica Farnand, who is Cowan’s Director of Native American art and an ATADA Board Member, recognized the cultural significance of the carving and worked with the consignor to return it through ATADA’s Voluntary Returns program.
Read more about the return of this item ➤

A Zuni Pottery Jar
via Wikimedia Commons, Sailko / CC BY

Our commitment to building trust and finding solutions:

ATADA is committed to working with sovereign Native Nations to find solutions to issues of cultural patrimony. In 2016, ATADA created the Voluntary Returns Program which is community-based initiative designed to bring sacred and highly valued ceremonial objects to Native American tribes. Returns take place through a consultative process in which ATADA representatives work directly with community and spiritual leaders of Native Nations.

ATADA President, Kim Martindale notes:

"This Zuni War God is just one of over 300 items that the Authentic Tribal Art Dealers Association has helped to return to sovereign Native Nations. ATADA has also worked on a number of returns of objects to indigenous communities globally. As an organization, the Authentic Tribal Art Dealers Association has pursued an open dialog with Native Nations and indigenous communities in order to return essential cultural items to them on a purely voluntary basis. The items that have been returned were purchased legally. However, as our understanding developed, our art dealer members and many collectors have grown to understand how important these items are. We recognized the need to return key cultural items regardless of their legal status and that's why we started the Voluntary Returns program. We’ve also incorporated descriptions of items that are not appropriate to trade in into our organization’s Bylaws. Our commitment to work with all Native Nations and indigenous communities is clear. We want to ensure that the Native American art market remains a viable and flourishing one for both Native artists and promoters of authentic indigenous items and that it continues to work to safeguard and preserve cultural treasures."

You can learn more about the Voluntary Returns Program at: https://atada.org/voluntary-returns

World Customs Organization Report: Heritage Trafficking Is Tiny Percentage of Illegal Trade

Eight coins from Afghanistan, including two U.S. silver quarters. Courtesy World Customs Organization.

In recent years, critics of the art trade, and more specifically the antiquities trade, have claimed there is a multi-billion dollar black market for illicit items which helps fund nefarious activities such as terrorism. 

The Illicit Trade Report 2019, published by the World Customs Organization, shows that the true scale of cultural property smuggling is actually quite small, especially when compared to other forms of illegal trade such as drugs, counterfeit goods and weapons. 

In his article published on Cultural Property News website, Ivan Macquisten notes that, "The 200-page Illicit Trade Report reveals that cultural property accounts for just 0.2 percent of all investigations and seizures reported by the Customs Enforcement Network." 

For some perspective, Macquisten further states, "...of the 102,214 cases investigated in 2019, just 227 involved cultural heritage. This compares to 36,264 for drugs, over 28,000 for counterfeit goods including medical supplies and over 26,000 for alcohol and tobacco..."
This small share of cases is not sufficient to fund terrorism. 

Read Macquisten's full article ➤

Download the WCO Illicit Trade Report for 2019 ➤

Article Describes ATADA's Concerns with the STOP Act

ATADA Members and Friends,

We would like to draw your attention to a recent article on the STOP Act which was published on the Antiques and The Arts Weekly website by Greg Smith. In the article, Mr. Smith describes the various issues and causes for concern that ATADA has continued to raise with each iteration of the bill. 

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Click below to read our update on the STOP Act from earlier this month.

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You can read the text of S.2165 by clicking below.

ATADA Written Testimony
June 10, 2020

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Bill That Will Block Native Art Exports Approved By Senate Committee

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:


1. 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.

2. 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.”

3. 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.

4. 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.

5. 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.

6. 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.

7. Effectively bypasses NAGPRA and ARPA processes for exporting museums and institutions.

8. 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

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You can read the text of S.2165 by clicking below.

ATADA Written Testimony
June 10, 2020

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