HR6206-119

1. Short title This Act may be cited as the Protect Culturally Sensitive Information Act.

2. Purposes The purposes of this Act are— to protect the confidentiality of culturally sensitive information provided by Indian Tribes, Alaska Native Entities, and Native Hawaiian Organizations to the Federal Government; to create a safe, respectful space for consultation between the Federal Government and Indian Tribes, Alaska Native Entities, and Native Hawaiian Organizations that encourages a free-flowing exchange of information and ideas; to build trust, strengthen relationships, and expand opportunities for costewardship between the Federal Government and Indian Tribes, Alaska Native Entities, and Native Hawaiian Organizations by ensuring that culturally sensitive information provided to the Federal Government will be protected to the maximum extent practicable; to advance repatriation of cultural items, including human remains, under the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.); and to strengthen support for the policy of the United States of protecting and preserving traditional, cultural, and ceremonial rites and practices in accordance with Public Law 95–341 (commonly known as the American Indian Religious Freedom Act) (42 U.S.C. 1996 et seq.).

3. Definitions In this Act: The term agency has the meaning given the term in section 551 of title 5, United States Code. The term Alaska Native Entity means— a Native Corporation, as defined in section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602); or an Alaska Native Association referenced in section 7(a) of the Alaska Native Claims Settlement Act (43 U.S.C. 1606(a)), including respective successor organizations. The term Authorized Representative means a person authorized by an Alaska Native Entity, Native Hawaiian Organization, or Tribal Government to make determinations with respect to culturally sensitive information on behalf of the Alaska Native Entity, Native Hawaiian Organization, or Tribal Government. The term cultural items has the meaning given the term in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001). The term Indian Tribe means any Indian or Alaska Native Tribe, band, nation, pueblo, village, or other community the name of which is included (including parenthetically) on the list published by the Secretary of the Interior pursuant to section 104 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5131). The term Native Hawaiian Organization— means an organization that— serves and represents the interests of Native Hawaiians; has as a primary and stated purpose for the provision of services to Native Hawaiians; and has expertise in Native Hawaiian affairs; and includes Native Hawaiian Organizations registered with the Department of the Interior’s Office of Native Hawaiian Relations. The term culturally sensitive information means information described in section 4(a) that is subject to the disclosure protections and handling requirements of this Act. The term Tribal Government means the governing body of an Indian Tribe.

4. Prohibition on disclosure A Tribal Government or an Authorized Representative may designate information provided to any agency (including information shared with the agency prior to the date of the enactment of this Act) relating to the location or attributes of culturally or religiously significant sites including burial sites, or to cultural items, or the existence or details of cultural or religious practices, as culturally sensitive information. Any agency that receives information designated as culturally sensitive information under subsection (a) shall consult with the appropriate Tribal Government or Authorized Representative to determine— how the agency may store the information; and which other entities within the Federal Government, if any, may have access to the information. Except as provided in paragraph (3), any information designated as culturally sensitive information under subsection (a) is exempt from disclosure under section 552(b)(3) of title 5, United States Code (commonly known as the Freedom of Information Act), and may not be made available to the public under any other provision of law or in any Federal publication. In the case of any lawful order (including a subpoena) compelling an agency to disclose culturally sensitive information in its possession— the lawful order shall, to the extent practicable, provide for the mitigation of any potential adverse effect deriving from the release of culturally sensitive information; the agency shall, not later than 3 business days after such order takes effect— notify each applicable Tribal Government or Authorized Representative in writing of the intention of the agency to comply with the order or subpoena; and to the maximum extent practicable, and in consultation with the applicable Tribal Government or Authorized Representative, mitigate the potential adverse effect of releasing the culturally sensitive information, including by requesting that documents be redacted, provided under seal, or reviewed in camera; and the court shall accord due deference to any mitigation undertaken by the agency under clause (ii)(II). In the absence of a lawful order or subpoena compelling the release of culturally sensitive information, the agency may disclose information designated as culturally sensitive information under subsection (a) only if each applicable Tribal Government or Authorized Representative consent to the disclosure in writing. At the request of a Tribal Government or an Authorized Representative, a consultation or communication that is likely to involve discussion of the location or attributes of culturally or religiously significant sites, or to cultural items, or the existence or details of cultural or religious practices shall be closed to the public, and all records created in relation to that meeting shall be designated as culturally sensitive information. The Secretary of the Interior, in consultation with Indian Tribes, Alaska Native Entities, and Native Hawaiian Organizations, shall establish guidelines for Federal agencies that includes information to understand the significance of and best practices to handle culturally sensitive information. Not later than 1 year after the date of enactment of this Act, except as provided in paragraph (2), the head of each agency shall promulgate rules and regulations to carry out this Act. In carrying out paragraph (1), the head of an agency with jurisdiction over other agencies may promulgate rules and regulations on behalf of those other agencies.