Native American Cultural Property: Additional Agency Actions Needed to Assist Tribes with Repatriating Items from Overseas Auctions

GAO-18-537 Published: Aug 06, 2018. Publicly Released: Sep 05, 2018.
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Fast Facts

Native American tribes have raised concerns that cultural items, including sacred objects, may have been taken without their consent and auctioned overseas. To help tribes try to repatriate these items, federal agencies have taken steps such as:

creating a working group to facilitate collaboration among agencies

using social media to raise public awareness

taking legal actions

We found the agencies have not adopted some leading collaboration practices and face challenges proving violations of existing U.S. laws. We recommended that the agencies assess whether and how amending U.S. laws would facilitate the return of these items to tribes.

This is one of a series of images the Department of State developed for a social media campaign aimed at protecting Native American cultural property.

A State Department Twitter Photo and Quote from the Governor of the Pueblo of Acoma.

A State Department Twitter Photo and Quote from the Governor of the Pueblo of Acoma.

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Highlights

What GAO Found

Federal agencies have taken several actions in response to Native American tribes' requests for assistance in repatriating cultural items from overseas auctions. For example, the Departments of the Interior and State have facilitated communication and arranged meetings between U.S. and foreign government officials, and in one case, the Department of Justice obtained a warrant for the forfeiture of a Native American cultural item being auctioned overseas. In addition, in 2015, the Departments of Homeland Security, the Interior, Justice, and State established a staff-level interagency working group to discuss issues and share information related to Native American cultural property. However, the working group has not adopted selected leading collaboration practices, such as developing outcomes and objectives or clarifying participants' roles and responsibilities. Working group officials GAO interviewed cited the benefits of working informally, including enabling them to respond more quickly to tribal requests. Some tribal officials told GAO that the informal nature of the working group has been challenging to navigate for tribes seeking assistance. Adopting leading collaboration practices could enhance the working group's ability to assist tribes in facilitating the return of cultural items from overseas auctions.

Native American Items in Overseas Auctions by Region of Origin, 2012-2017

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No federal law explicitly prohibits the export of Native American cultural items, creating a challenge for tribes because they cannot easily prove that the items were exported from the United States illegally. In addition, several federal laws address the theft and sale of Native American cultural items, but they are limited in scope, creating a challenge for tribes to prove that a violation of these laws has occurred. Federal standards for internal control call for agencies to identify, assess, and respond to risks related to achieving the defined objectives. However, agency officials said they have not assessed whether and how federal laws could be amended to address these challenges, because the sale of cultural items at overseas auctions is a recent issue and the agencies' direct legal involvement has been limited. Since amending laws would require congressional action, the working group could assist Congress by assessing whether and how to amend the existing legal framework governing the export, theft, and trafficking of Native American cultural items and reporting its findings to Congress.

Why GAO Did This Study

Recently, overseas auction house sales of Native American cultural items have raised concerns among tribes and the U.S. government that the items may have been taken without tribes' consent. While no comprehensive data exist on the world market for Native American cultural items, several tribes have identified items in at least 15 auctions in Paris, France, since 2012. Some tribes have sought to repatriate these items with help from the Departments of Homeland Security, the Interior, Justice, and State. GAO was asked to review federal agency repatriation efforts. This report examines (1) federal agencies' actions to assist tribes in repatriating cultural items being auctioned overseas and (2) the laws that address the export, theft, and trafficking of cultural items and any challenges in proving violations of these laws.

GAO reviewed federal and tribal documentation on international repatriation; compared federal actions with selected leading collaboration practices; analyzed laws and legal proceedings; and interviewed agency, tribal, and international organization officials selected for their involvement in international repatriation.

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Recommendations

GAO made 12 recommendations, 3 to each of the 4 agencies, including implementing leading collaboration practices and assessing the U.S. legal framework governing the export, theft, and trafficking of these cultural items. The agencies agreed, except Justice disagreed with the recommendation to assess the U.S. legal framework. GAO believes this recommendation is still valid, as discussed in the report.

Recommendations for Executive Action

Agency Affected Recommendation Status
Department of Homeland Security The Secretary of Homeland Security should direct Homeland Security's members of the interagency working group for protection of Native American cultural property to implement selected leading collaboration practices, such as taking steps to agree on outcomes and objectives, clarify roles and responsibilities, and document these decisions. (Recommendation 1)
Closed – Implemented
In September 2022, the Department of State shared a charter developed in collaboration with the participating agencies of the Interagency Working Group for the Protection and International Repatriation of Native American Cultural Heritage (including the Departments of Homeland Security, the Interior, Justice, and State). The charter outlines and documents the mission, membership, roles, responsibilities, and goals of the Interagency Working Group in response to GAO's recommendation.
Department of the Interior The Secretary of the Interior should direct Interior's members of the interagency working group for protection of Native American cultural property to implement selected leading collaboration practices, such as taking steps to agree on outcomes and objectives, clarify roles and responsibilities, and document these decisions. (Recommendation 2)
Closed – Implemented
In September 2022, the Department of State shared a charter developed in collaboration with the participating agencies of the Interagency Working Group for the Protection and International Repatriation of Native American Cultural Heritage (including the Departments of Homeland Security, the Interior, Justice, and State). The charter outlines and documents the mission, membership, roles, responsibilities, and goals of the Interagency Working Group in response to GAO's recommendation.
Department of Justice The Attorney General should direct Justice's members of the interagency working group for protection of Native American cultural property to implement selected leading collaboration practices, such as taking steps to agree on outcomes and objectives, clarify roles and responsibilities, and document these decisions. (Recommendation 3)
Closed – Implemented
In September 2022, the Department of State shared a charter developed in collaboration with the participating agencies of the Interagency Working Group for the Protection and International Repatriation of Native American Cultural Heritage (including the Departments of Homeland Security, the Interior, Justice, and State). The charter outlines and documents the mission, membership, roles, responsibilities, and goals of the Interagency Working Group in response to GAO's recommendation.
Department of State The Secretary of State should direct State's members of the interagency working group for protection of Native American cultural property to implement selected leading collaboration practices, such as taking steps to agree on outcomes and objectives, clarify roles and responsibilities, and document these decisions. (Recommendation 4)
Closed – Implemented
In September 2022, the Department of State shared a charter developed in collaboration with the participating agencies of the Interagency Working Group for the Protection and International Repatriation of Native American Cultural Heritage (including the Departments of Homeland Security, the Interior, Justice, and State). The charter outlines and documents the mission, membership, roles, responsibilities, and goals of the Interagency Working Group in response to GAO's recommendation.
Department of Homeland Security The Secretary of Homeland Security should direct Homeland Security's members of the interagency working group for protection of Native American cultural property to identify and externally communicate to tribes points of contact within the agency that are responsible for responding to tribes' requests for assistance with repatriating cultural items from overseas auctions. (Recommendation 5)
Open
As of September 2022, Department of Homeland Security officials extended the target implementation date for this recommendation to March 30, 2023. In addition, the agency communicated that it has taken some steps to ensure contact information is specifically identified for repatriation efforts, including reviewing component and office webpages and submitting draft updated language for Search Engine Optimization (SEO). GAO will continue to monitor the agency's implementation of this recommendation.
Department of the Interior The Secretary of the Interior should direct Interior's members of the interagency working group for protection of Native American cultural property to identify and externally communicate to tribes points of contact within the agency that are responsible for responding to tribes' requests for assistance with repatriating cultural items from overseas auctions. (Recommendation 6)
Closed – Implemented
Since August 2018, Interior has updated its International Repatriation website with a revised contacts list, as well as a general e-mail address for assistance inquiries that is monitored by Interior's Office of International Affairs staff. In addition, Office of International Affairs staff has been conducting outreach to tribes. For example, Interior staff conducted outreach at the Association on American Indian Affairs (AAIA) International Repatriation Conference, which Interior has identified as an effective way to reach a large number of tribes interested in this issue.
Department of Justice The Attorney General should direct Justice's members of the interagency working group for protection of Native American cultural property to identify and externally communicate to tribes points of contact within the agency that are responsible for responding to tribes' requests for assistance with repatriating cultural items from overseas auctions. (Recommendation 7)
Open
As of September 2022, we have reached out to the Department of Justice and are awaiting a response on actions they may have taken in response to this recommendation.
Department of State The Secretary of State should direct State's members of the interagency working group for protection of Native American cultural property to identify and externally communicate to tribes points of contact within the agency that are responsible for responding to tribes' requests for assistance with repatriating cultural items from overseas auctions. (Recommendation 8)
Closed – Implemented
Since August 2018, the Department of State has updated its "Protecting Native American Heritage" website with a point of contact for inquiries regarding repatriation of Native American cultural items. In addition, Department of State staff has conducted outreach to tribes at the Association on American Indian Affairs (AAIA) International Repatriation Conference.
Department of Homeland Security The Secretary of Homeland Security should direct Homeland Security's members of the interagency working group for protection of Native American cultural property to collaborate with the interagency working group members from other agencies to assess, in consultation with Indian tribes, whether and how amending the U.S. legal framework governing the export, theft, and trafficking of Native American cultural items would facilitate the repatriation of these items from auctions overseas and report its findings to Congress. (Recommendation 9)
Open – Partially Addressed
In September 2022, the Department of State provided an assessment of the legal framework and legislative options that was developed in conjunction with other interagency working group members (including the Departments of Homeland Security, the Interior, Justice, and State). GAO will continue monitoring the agencies' efforts toward fully implementing this recommendation to report the interagency working group's findings to Congress.
Department of the Interior The Secretary of the Interior should direct Interior's members of the interagency working group for protection of Native American cultural property to collaborate with the interagency working group members from other agencies to assess, in consultation with Indian tribes, whether and how amending the U.S. legal framework governing the export, theft, and trafficking of Native American cultural items would facilitate the repatriation of these items from auctions overseas and report its findings to Congress. (Recommendation 10)
Open – Partially Addressed
In September 2022, the Department of State provided an assessment of the legal framework and legislative options that was developed in conjunction with other interagency working group members (including the Departments of Homeland Security, the Interior, Justice, and State). GAO will continue monitoring the agencies' efforts toward fully implementing this recommendation to report its findings to Congress.
Department of Justice The Attorney General should direct Justice's members of the interagency working group for protection of Native American cultural property to collaborate with the interagency working group members from other agencies to assess, in consultation with Indian tribes, whether and how amending the U.S. legal framework governing the export, theft, and trafficking of Native American cultural items would facilitate the repatriation of these items from auctions overseas and report its findings to Congress. (Recommendation 11)
Open – Partially Addressed
In September 2022, the Department of State provided an assessment of the legal framework and legislative options that was developed in conjunction with other interagency working group members (including the Departments of Homeland Security, the Interior, Justice, and State). GAO will continue monitoring the agencies' efforts toward fully implementing this recommendation to report the interagency working group's findings to Congress.
Department of State The Secretary of State should direct State's members of the interagency working group for protection of Native American cultural property to collaborate with the interagency working group members from other agencies to assess, in consultation with Indian tribes, whether and how amending the U.S. legal framework governing the export, theft, and trafficking of Native American cultural items would facilitate the repatriation of these items from auctions overseas and report its findings to Congress. (Recommendation 12)
Open – Partially Addressed
In November 2019, the Department of State, in conjunction with other interagency working group members, circulated a draft legal assessment and draft legislative options. The interagency working group members conducted a listening session with tribal members in November 2019, and conducted a tribal consultation in January 2020. In March 2021, the Department of State reported that the COVID-19 pandemic has delayed further implementation. In September 2022, the Department of State provided an an assessment of the legal framework and legislative options that was developed in conjunction with other interagency working group members (including the Departments of Homeland Security, the Interior, Justice, and State),. GAO will continue monitoring the agencies' efforts toward fully implementing this recommendation to report its findings to Congress.

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