Efforts to Protect the Native American Tuition Waiver

Questions/Concerns Dealing With Federal Efforts to Protect the Native American Tuition Waiver

* Note: Both the Senate Bill 765 and the House Bill 1658 have the same intent.

What is H.R. 1658 proposing?

H.R. 1658 is proposing “To help fulfill the Federal mandate to provide higher educational opportunities for Native American Indians.” (Title Page)

In a little more detail, the bill instructs that “…for fiscal year 2014 and each succeeding fiscal year, the Secretary of Education shall pay to any eligible college an amount equal to the charges for tuition for all Indian students who are not residents of the State in which the college is located and who are enrolled in the college for the academic year ending before the beginning of such fiscal year.” (Section 4, Part A, (1))

The bill also makes clear that nothing in it would relieve the state of Colorado from its obligation to continue to provide the Native American Tuition Waiver as it has been doing for the last 100 years. All Native American students from federally-recognized tribes, both resident and non-resident, would continue to be admitted tuition-free at Fort Lewis College. (Section 4, Part C)

Does this federal legislation restrict or cap the number of Native American students that can attend Fort Lewis College and receive the tuition waiver?

H.R. 1658 does not, either now or in the future, restrict or cap the number of Native American students, either resident or non-resident, who can attend Fort Lewis College and receive the tuition waiver. See Section 4, Part C.

There has been confusion over this issue because the bill will limit the amount of funding the federal government will provide to “…the amount equal to the charges for tuition for all Indian students of that college who were not residents of the State in which the college is located and who were enrolled in the college for academic year 2012-2013.” (Section 4, Part A, (3))

This limitation applies only to the amount of funding the federal government will provide. It does not cap the number of non-resident students that can receive the tuition waiver at Fort Lewis College. Colorado will continue to pay the tuition charges for non-resident Native American students if the tuition charges exceed the amount provided by the federal government. This is explained in Section 4, Part C.

Does H.R. 1658 affect Colorado’s responsibility to offer the Native American Tuition Waiver?

H.R. 1658 does not take away the state of Colorado’s responsibility to offer the Native American Tuition Waiver. As explained in Section 4, Part C, “Nothing in this Act shall be construed to relieve any State from any mandate it may have under Federal law to reimburse a college for each academic year—

            (1) with respect to Indian students enrolled in the college who are not residents of the State in which the college is located, any amount of charges for tuition for such students that exceeds the amount received under this section for such academic year; and

            (2) with respect to Indian students enrolled in the college who are residents of the State in which the college is located, an amount equal to the charges for tuition for such students for such academic year.”

Does the fact that the bill refers to “Indian students” create a possibility of a future lawsuit by violating the Equal Protection Clause of the 14th Amendment?

When H.R. 1658 refers to “Indian students,” this is a political classification of membership in a federally-recognized tribe, not a racial one. The U.S. Supreme Court has upheld that laws based on political classification of membership in a federally-recognized tribe do not violate the Equal Protection Clause of the 14th Amendment. See Morton v. Mancari, 417 U.S. 535 (1974), Rice v. Cayetano, 528 U.S. 495 (2000).

What this means is that there are no conflicts with the 14th Amendment as the term “Indian” in the bill refers to a political classification, not a racial one.

Why should the federal government help Colorado pay for the tuition waiver?

As stated in H.R. 1658, “(3) The value of the Native student tuition waiver benefits contributed by these colleges and the States which support them today far exceeds the value of the original grant of land and facilities.

(4) The ongoing financial burden of meeting this Federal mandate to provide tuition-free education to Indian students is no longer equitably shared among the States and colleges because it does not distinguish between Indian students who are residents of the State or of another State.

(5) Native student tuition waiver benefits are now at risk of being terminated by severe budget constraints being experienced by these colleges and the States which support them.” (Section 3, (3-5))

As stated, the state of Colorado is facing serious budget difficulties and state legislators are looking into every aspect of the state’s operations, including higher education, for cuts. The State has already tried to reduce the amount it pays for the tuition waiver at FLC, most recently with House Bill 10-1067 in January 2010. To borrow a naval term, H.B. 10-1067 was a shot across the bow of the College and more attempts to reduce or eliminate the tuition waiver are not out of the question.

As to why it is appropriate for the federal government to assist the state of Colorado in paying a portion of the tuition waiver, the answer is in the diversity of the FLC Native American student body.

In 2012, 801 of the 943 Native American students who provided a Certificate of Indian Blood and who enrolled at Fort Lewis College were from out-of-state. That means that 84 percent of the Native American students receiving the Native American Tuition Waiver were not from Colorado.

One of the justifications for H.R. 1658 is the fact that as the benefits of Native American students receiving an education at Fort Lewis College extend beyond the borders of Colorado, the cost of providing that education should be shared by other U.S. states as well.

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