Gary “Litefoot” Davis, a member of the Cherokee Nation, currently serves as the Executive Director of the Native American Financial Services Association (NAFSA).  Van Ness Feldman works with NAFSA to advocate respect for tribal sovereignty and self-determination, most recently in an amicus brief filed at the U.S. Supreme Court.

In addition to his day job at NAFSA, Davis recently made his directorial debut with a short film, "Strong Hearts: An Indigenous Love Letter To My Sons". Strong Hearts earned the “Award of Excellence” award from the Impact Docs Awards and the silver “Remi” award from the 55th Annual Worldfest-Houston International Film Festival.  Strong Hearts is produced by IndigiStudios (founded by Davis and his wife, Carmen), an Indigenous-owned and operated production company.

We recently sat down with Davis to talk with him about this award-winning short film.

What inspired you to make this film?

Ultimately, my sons inspired the film. But it came by way of a dream I had when I first began my career, years ago in Oklahoma. I was in my mid-twenties and had not yet met my wife, and had no children. There is a scene in the film where I am sitting down in a field at the bottom of a hill and as the camera tilts up, you begin to see my sons walking over the hill in front of me. It is my oldest, Quannah, holding the hands of my two younger sons, Sequoyah and Qwnuseia, who are on each side of him. Today, my oldest, who is now 23, resembles me quite a bit. When I had the dream, I originally believed that I was seeing myself walk over the hill with two children and I could never understand that. I now know that what I saw in my dream was my children walking over the hill down to meet me. When we were at the Rosebud battle site we were about finished filming and I turned around and saw the field with the hill in front of it and I thought, “That’s the hill and field in my dream!”  So, we re-created that part of my dream on the spot and it came together perfectly. I believe that moment in the film demonstrates how our children walk in our footsteps and when we look back at our lives as parents, we hope that we gave our children love to carry on their journey. And that we have done all we can to impart the lessons from our life experiences, to help provide them with guidance and wisdom so that they may learn from our mistakes and effectively navigate their road in life and achieve their purpose. So, the film originates from a place of spoken intimacy and love between a father and his sons and the desire to impart knowledge to them that they can carry throughout their lives. The narration in the film begins and ends with “I love you”- as I believe that love is the single most important thing that we can give our children.

The visuals in the film are stunning.  Where did you film?

Thank you. We shot the film in just two days in Montana, South Dakota, and Nebraska. All the locations we filmed at were intertwined with significant happenings related to Crazy Horse, the Oglala Lakota Chief. In Montana, we filmed at Crow Agency on the Little Big Horn (Greasy Grass) battle site and at the Battle of the Rosebud near Decker, Montana. We filmed the Badlands footage on the Pine Ridge Indian reservation, home of the Oglala Lakota Sioux Tribe in South Dakota. And we filmed at Fort Robinson located near Crawford, Nebraska, which is where Crazy Horse surrendered, and where he was murdered. At the time we were filming there were very bad fires happening in the northern plains and it created a haze in the sky that held for both days we filmed across all three states. It provided a very celestial atmospheric to the footage that really helped set the tone of the film. I also must give credit to my Director of Photography on the film, and fellow Cherokee, Jeremy Charles. He really helped me capture my vision for the film.

You have a number of prior film credits.  What was different about this experience where you were both directing and working with your family?

Up until now, my work in film has been on the acting side. This is the first project that I have written and directed. And my wife, Carmen, and I also produced it. We have been a husband-and-wife team for so many years now, and have owned so many businesses, that we operate very symbiotically. Subsequently, the production of the film came very natural to us. It made it way easier on me to focus on the film because I knew Carmen would execute on all the logistics and keep us on track with the schedule, etc. Having the family in front of the camera started with staying true to the film’s premise and it honored that.  The boys have grown up seeing Carmen and I out in front and publicly leading our companies across Indian Country.  So, it wasn’t a stretch, or out of the ordinary, for us as a family to be involved in this production. All our endeavors throughout the nation have always been focused on advancing our Indigenous communities, so our work has always been very personal to us, and we go about it with a strong sense of responsibility. The production of this film embodied all those same feelings and sentiments.

In the film you talk about a determination to end generational trauma.  Do you see a role for television and film to play in that effort?

Absolutely!  We started IndigiStudios to help reclaim the Indigenous narrative in film and television. If we as Indigenous people are not directly involved and leading the development, writing, and directorial aspects of our stories and projects, then the outside world is not truly hearing us because what they are receiving is our stories from second-, third- or fourth-hand parties. Non-Indigenous writers are simply not capable of capturing the nuance and the subtleties of our Indigenous communities. And quite frankly, it is our job as Indigenous creatives to assert ourselves in the industry and claim that space. I believe that is slowly happening but there is much, much more work to be done.  The ultimate goal is for us to be directly involved in and in control of the creative process from start to finish. There won’t be a need for Indigenous film consultants once we as Indigenous people are creating the content.  And in order for us to help end our trauma, Hollywood needs to stop creating more of it – no matter how well intentioned. There has to be balance and there are many projects that need to be made in order to bridge the divide.

Was there anything you learned in process of making this film that surprised you?

The locations that we filmed at were all so powerful and provided a heavy reminder to every one of us on the crew, of the great sacrifice that our ancestors, who were hunted and murdered, paid for us to have the opportunity to live our lives. And to experience that power with my family, especially my sons, was epic in and of itself.

What is next for IndigiStudios?

I have just finished my first script about the life of Crazy Horse which we are shopping now and that I will direct. Carmen and I will produce it along with Thomas Lee Wright who wrote New Jack City and is an Academy award nominated producer and Frank Oz who directed me in, “Indian In The Cupboard” will executive produce.  And additionally, we have two documentaries in post-production and three more films in development.

Interview by Patrick Daugherty

The Inflation Reduction Act of 2022 (IRA) offers an unprecedented opportunity for Tribes and other Native communities to deploy clean energy infrastructure and bring significant economic opportunities to their communities.  Notably, the IRA offers a new path for Tribes and other tax-exempt Native enterprises to utilize the legislation’s tax incentives.  However, the ultimate success of the legislation as it pertains to Native communities will depend heavily on its implementation.  The U.S. Department of Treasury (Treasury) held consultations on the IRA with Tribes on November 28 and 29, 2022, and will hold a consultation with Alaska Native Corporations (ANCs) on December 2, 2022.  Tribes and ANCs should be engaged with Treasury to craft implementation of the IRA’s programs to help ensure that benefits flow to Native communities as Congress intended. 

Background

In August 2022, Congress passed a landmark piece of climate change legislation in the IRA.  The final bill was significantly pared down from the Democrats’ originally advanced $3.5 trillion reconciliation package (known as the Build Back Better Act) that, in addition to climate change provisions, included numerous provisions related to advancing Democrats’ social policy priorities.  Following negotiations, the price tag of the legislation was reduced to approximately $1.7 trillion.  The bill was passed by the U.S. House of Representatives by a vote of 220-213 on November 19, 2021.  The legislation was further revised in the U.S. Senate, and significant negotiations between Senate Majority Leader Chuck Schumer (D-NY) and Senator Joe Manchin (D-WV) resulted in the IRA, which was signed into law on August 16, 2022.  The IRA incorporates some of the Build Back Better Act’s climate change, healthcare, and tax reform proposals while excluding its social safety net provisions.

Opportunities for Indian Country and Native Communities in the IRA

Many of the IRA’s provisions offer direct funding or grant opportunities specifically for the benefit of Tribes and other Native entities.  For example, the IRA provides:

• $235 million for Tribal climate resilience, including fish hatchery operations and maintenance;
• $225 million for development of Tribal high-efficiency electric home rebate programs;
• $150 million for Tribal home electrification;
• $75 million for the Tribal Energy Loan Guarantee Program and $20 billion in allowable loan guarantees;
• $25 million for Native Hawaiian climate resilience; and
• $12.5 million for Tribal emergency drought relief.

Importantly, of the IRA’s $369 billion investment in addressing climate change, $270 billion will be delivered through tax incentives.  In the past, federal incentives for clean energy infrastructure investments were delivered through federal tax credits, and because Tribes are exempt from federal taxes, they were not able to access such funds on an equal basis with for-profit entities.  The IRA is allowing Tribes to access the benefits of tax credits through a novel process known as “direct pay,” which will essentially offer Tribes and other tax-exempt Native entities to receive the benefit of tax credits in the form of a tax refund.

With regard to tax incentives, as described in the Treasury’s consultation notice, the following sections of the IRA reference Tribal governments and Indian Lands:

• Sec. 13103. Increase in Energy Credit for Solar and Wind Facilities Placed in Service in Connection with Low-Income Communities.
  • This section amends Section 48 of the Internal Revenue Code of 1986 (Tax Code) to increase credits for solar and wind facilities generating electricity in low-income communities, on Indian land, or as part of a low-income economic benefit project or a low-income residential building project (including programs administered by Tribally designated housing entities).
     
• Sec. 13303. Energy Efficient Commercial Buildings Deduction.
  • This section amends Section 179D of the Tax Code to provide increased deductions for energy efficient commercial buildings, and to permit tax-exempt owners of such facilities to allocate their tax deduction to the person designing the property.  In this section, tax-exempt entities are defined to include Indian Tribal governments and ANCs.
     
• Sec. 13401. Clean Vehicle Credit.
  • This section amends Section 30D(b) of the Tax Code to allow taxpayers to elect to transfer their “new clean vehicle” tax credit to car dealers registered with the Secretary of the Treasury or her delegate.  “Dealer” includes a person licensed by an Indian Tribal government or ANC to engage in the sale of vehicles.
     
• Sec. 13702. Clean Electricity Investment Credit.
  • This section amends Section 48C of the Tax Code to create a clean electricity investment credit for a taxable year in an amount equal to the applicable percentage of the qualified investment for that year. Where the Secretary makes an allocation of environmental justice capacity limitation, the credit will be increased:
    • 10 percentage points for facilities located on Indian lands; and
    • 20 percentage points for facilities that are part of a program administered by a Tribally designated housing entity, where the financial benefits of the electricity produced by the building are allocated equitably among the occupants of the building’s dwelling units.
       
• Sec. 13801. Elective Payment for Energy Property and Electricity Produced from Certain Renewable Resources, etc.
  • Under Section 6417 of the Tax Code, “tax-exempt” entities—defined in the statute to include Tribal governments and ANCs—may elect to monetize certain tax credits for alternative re-fueling properties, renewable electricity production, carbon oxide sequestration, zero-emission nuclear power production, clean hydrogen production, qualified commercial vehicles, advanced manufacturing production, clean electricity production, clean fuel production, energy activities under Section 48 of the Code, qualifying advanced energy projects, and clean electricity investments.

Whether or not these benefits can be effectively deployed by Native communities will largely depend on the development of their implementing regulations.  For example, Tribes should request that Treasury advocate that Section 17 corporations established by a Tribal government should qualify for the IRA’s direct pay benefit.  Several of the IRA’s benefits would be provided in the form of energy tax credits to be paid through a tax refund.  As noted above, the IRA for the first time allows certain tax-exempt entities or Indian Tribal governments to receive these benefits as well through the form of a direct payment from the government.  Tribal corporations often form “Section 17 corporations” to carry out Tribal economic enterprises in order to protect the Tribe’s assets from the creditors of the corporation.  While Section 17 corporations are considered to be separate entities from their Tribal governments, the Internal Revenue Service (IRS) acknowledges that Section 17 corporations are part of the Tribal government and are exempt from federal income tax.  Consistent with this interpretation from the IRS, Tribes should request that Treasury advocate that Section 17 corporations should qualify for the IRA’s direct pay benefits.

Conclusion

The IRA offers tremendous opportunity for Tribes and other Native entities to bring new green energy infrastructure and economic benefit to their communities, but the key to the legislation’s success for Native communities will be in its deployment.  Specifically, because direct pay is a new concept, its effectiveness will hinge upon its implementation at the agency level.  Tribes and ANCs should utilize the upcoming consultations to request that Treasury supports aggressive implementation of direct pay benefits to ensure their communities are well-positioned to benefit from the infrastructure and economic development opportunities the IRA can offer.

For more information about opportunities for Tribes and Native communities in the IRA, contact Michael Platner at mlp@vnf.com or Melinda Meade Meyers at mmm@vnf.com.

The Sand Creek Massacre was an atrocity perpetrated in 1864 by Colonel John M. Chivington and his troops against certain members of the Arapaho and Cheyenne Tribes while the Tribal members were supposed to be under the protection of the U.S. Government. Colonel Chivington’s troops murdered an estimated 230 Cheyenne and Arapaho people—mostly of women, children, and the elderly. More than 150 years ago, Congress took responsibility for investigating and paying damages associated with the Sand Creek Massacre. Following extensive congressional and military investigations, the United States entered into the Treaty of Little Arkansas in 1865, which condemned the massacre and sought to make reparations to individual victims of the massacre through grants of land and monetary and in-kind payments.  Congress specifically appropriated funds to pay the obligations set forth in the Treaty, but for reasons that have never been explained, the Bureau of Indian Affairs failed to fulfill its responsibility to pay the promised damages to the victims and victim’s families as authorized by Congress. 

Descendants of the Sand Creek Massacre have long sought a fair and final resolution of the promises set forth in the Treaty of Little Arkansas.  In the 1940s and 1950s, federal legislation was introduced that would have conferred jurisdiction on the U.S. Court of Claims to hear, determine, and render judgment.  The U.S. Department of the Interior supported the legislation, but it failed to advance.

In 1965, a group of attorneys considered whether the Cheyenne and Arapaho Tribes could pursue recovery for the massacre through the Indian Claims Commission (ICC) but ultimately, it was determined that the ICC had no jurisdiction to hear the claims because the massacre—a violation of individual rights—was not a common, or group, claim that would fall under the jurisdiction of the ICC.

In 1990, a group of descendants formed the Sand Creek Massacre Descendants Trust Sand Creek Massacre Descendants Trust, a group that continues to be led today by a Sand Creek descendant and long-time advocate, Homer Flute. The formation of the Trust was followed by resolutions of support for the Trust’s work from the Cheyenne-Arapaho Tribes of Oklahoma, Northern Arapaho Tribe, Apache Tribe of Oklahoma, Wichita and Affiliated Tribes, Kiowa Tribe, Caddo Tribe, and Sac and Fox Nation. 

In the 2000s, the Sand Creek Massacre Descendants Trust sought to resolve their claims through litigation, which resulted in a 2-1 split decision of the Tenth Circuit in Flute v. United States (2015).  The decision recognized the validity of the descendants’ claims, but dismissed the litigation because, in the view of the court, the United States must first waive its sovereign immunity with respect to these claims.   

After working with Members of the Congress to identify an appropriate path forward, the Trust is now working with key allies in Congress to develop legislation that will establish a single-purpose commission to review the history of the descendants’ claims, examine the circumstances of the failure of the U.S. Government to fulfill its treaty obligations, and provide a recommendation back to Congress with respect to an appropriate remedy.  Such a report would serve as the basis for future legislation if Congress adopts the Commission’s recommendations as to the appropriate course of action to fulfill its obligations to the victims of the Sand Creek Massacre and bring closure to this outstanding treaty claim.

We are honored to work with the descendants to provide a fair and final resolution of the long-standing claims of the descendants of the 1864 Sand Creek Massacre.  If you would like to help, we welcome letters of support for a just resolution of the descendants’ claims.  Please contact us if you would like to know more about this effort.

The U.S. Department of Justice Office on Violence Against Women (OVW) continues to seek feedback on the Alaska pilot project authorized by the Violence Against Women Reauthorization Act of 2022 (VAWA 2022), and on VAWA 2022’s new reimbursement program.  As detailed in our May 2022 newsletter, VAWA 2022 expanded Special Criminal Tribal Jurisdiction (SCTJ) to allow qualifying tribes to exercise criminal authority over certain conduct of non-Native defendants and authorized a pilot project to enhance access to safety for survivors of domestic violence in Alaska Native villages. To participate in the pilot program, Alaska tribes must have a criminal justice system sufficient to satisfy the requirements of the Indian Civil Rights Act. Although many Alaska tribes currently lack these systems, funding is available through VAWA 2022 to help establish them and to expand and utilize existing systems.  

VAWA 2022 expanded VAWA’s grant program, which allows tribes to receive funds to prepare for and exercise SCTJ. It also created a reimbursement program that allows tribes to seek reimbursement for expenses incurred in the exercise of that jurisdiction. Tribes may also share resources and use “authorized designees” to utilize reimbursement and grant options.

In July and August, OVW held tribal consultations on the new reimbursement program.  The office is accepting comments to inform its drafting of related regulations, which must be completed by March 15, 2023. The framing paper and appendix are available on the Department of Justice’s website at https://www.justice.gov/tribal.  In September, OVW also held its 17th Annual Government-to-Government VAWA Tribal Consultation in Anchorage, where the office solicited feedback on its administration of VAWA grants. Written comments or meeting requests should be sent to OTJ@usdoj.gov.

If you have questions about VAWA 2022 or its expansion of tribal jurisdiction, please contact Charlene Koski at ckoski@vnf.com.

The Department of the Interior (the “Department”) has published a proposed rule that seeks to revise regulations to improve implementation of the Native American Graves Protection and Repatriation Act of 1990 (“NAGPRA”).

NAGPRA, and the regulations that allow for its implementation (43 C.F.R. Part 10), require consultation with Indian tribes; consultation with lineal descendants; complete inventory of persons, funerary objects, sacred objects, and objects of cultural patrimony; notification to culturally affiliated Indian tribes and Native Hawaiian organizations; and transfer of control or repatriation of the persons or objects to the tribes or organizations, unless specifically exempt under § 10.10(c).

Congress acknowledged the legal ownership of human remains and other cultural objects by lineal descendants of Indian tribes and Native Hawaiian organizations when it enacted NAGPRA. One major purpose of the statute is to require Federal agencies and museums receiving Federal funds to inventory holdings of Native American human remains and funerary objects to provide accounting and summaries of cultural items.[1] US Senate Report 101-473.

In 1980, the Smithsonian Secretary indicated that of the 34,000 human remains on display, well over 50% were North American Indians or Alaskan Natives. Indigenous response to these numbers was the demand for repatriation of those thousands of human remains for disposition in accordance with tribal customs and traditions. This demand was an appeal to dignity and a request for proper burial of the remains. US Senate Report 101-473.

A second major purpose of NAGPRA is to provide greater protection for Native American burial sites and careful control over the removal of Native American human remains, funerary objects, sacred objects, and items of cultural patrimony on Federal and tribal lands.[2] This includes archaeological investigations, unexpected discovery of culturally affiliated human remains and objects, and federally driven projects that recover or disturb culturally affiliated remains or objects.[3]

In 2021, Congress recognized that there was a deficit in the implementation of NAGPRA. The Army Corps of Engineers and other Federal agencies have failed to fully comply with NAGPRA, and the proposed rule is an attempt to revise loopholes in the existing legislation.[4] The proposed changes to the regulations provide a roadmap for museums and Federal agencies to comply with NAGPRA requirements within specific timelines. By improving NAGPRA’s consultation, disposition, and repatriation requirements, the proposed rule changes  hope to clarify and improve efficiency under NAGPRA.[5]

The Department is seeking public comment on the proposed rule and comments are due January 17, 2023. If you have any questions or need assistance with submitting comments regarding the proposed rule changes to NAGPRA please contact Laura Jones at ljones@vnf.com.