Native American tuition waiver policy not the right way to atone for historical wrongs

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In summary

The University of California delegates to tribal councils the power to blank check the power to decide who gets free tuition and who doesn’t.

By Donald Craig Mitchell, special for CalMatters

Donald Craig Mitchell is an attorney, a nationally recognized expert on Indian federal law, and the author of “Wampum: How Indian Tribes, the Mafia, and an Inattentive Congress Invented Indian Gambling and Created a Gambling Empire $28 billion”.

In April, University of California President Michael Drake announced that beginning this fall, the university would waive tuition for “residents of California who are members of Native American, Native American, and Native American tribes of federally recognized Alaska”.

This may seem like a laudable way for UC to atone for the bogus means that, beginning in 1850, the state of California employed to cleanse the public domain of the Native Americans who occupied it. But it’s not.

“Federally Recognized Tribe” is a legal status conferred on a group of individuals of Native American descent by treaty, act of Congress, or by the Secretary of the Interior acting with authority delegated by Congress. In 1852, the United States Senate decided that it would not ratify any treaties with Indian groups in California. With one exception, no law of Congress has created “federally recognized tribes” in California. However, the US Bureau of Indian Affairs indicates that there are 109 groups in California that are “federally recognized tribes”.

While each “federally recognized tribe” has a quantum blood requirement for membership, in 1974 the United States Supreme Court ruled that tribal membership is a political status rather than a racial one.

When asked to explain the rationale for the new tuition waiver policy, a spokesperson for President Drake cited this court ruling. But the reality is that tribal affiliation is a proxy for race, which the California Constitution prohibits the UC from using to grant preferential treatment.

President Drake admitted this when he assured students of Native American descent who are not members of a “federally recognized tribe” that “scholarships for California residents of non-federally recognized tribes the federal government may be available through external organizations”.

The governing body of a “federally recognized tribe” has sole authority to decide who is a member of the tribe and who is not. For example, the Seminole Tribe of Florida requires its members to have “a minimum of one quarter Florida Seminole blood”. But in Oklahoma, the Cherokee Nation allows anyone to be a member who has some sparkle of Cherokee blood because the individual is a descendant of a Cherokee listed in an 1898 census. That’s why the Nation Cherokee has 400,000 members.

Thus, UC delegates to tribal councils – many of which are corrupt and many of which enroll and unenroll their members arbitrarily and unfairly – the power to blank-check who will receive free tuition and who will not.

The new tuition waiver policy also does not require a “federally recognized tribe” to be located in California. For example, of the 400,000 members of the Cherokee Nation, 141,000 live in Oklahoma. Of the other 259,000, how many live in California? In 2018, there were 25,000. So a student will receive free tuition for no reason other than being a member of the Cherokee Nation because he or she had a great-great-great-grandparent who traveled west to Oklahoma on the trail of tears?

Of the 109 groups in California the Bureau of Indian Affairs says are “federally recognized tribes,” 73 operate casinos that contain 70,000 video game machines. In 2020, these tribes received gambling revenue that totaled $8 billion.

The Bureau of Indian Affairs says that the portion of these revenues that these tribes distribute to their members in the form of payments is up to the tribes alone. But in 2008, the San Manuel Band of Mission Indians, which operates a casino near San Bernardino, was paying its members $100,000 a month.

So a student who may receive $50,000 or considerably more per year receives free tuition for no other reason than that he or she is a member of a “federally recognized tribe”?

When he announced the new tuition waiver policy, President Drake framed it as a way for UC to acknowledge “historic wrongs suffered by Native Americans.” While in 19th century California, Native Americans endured grave historical wrongs, this attempted atonement is a rash move that the Board of Regents should order President Drake to reconsider.

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