In summary

The University of California is delegating to tribal councils blank-check authority to decide who will get free tuition and who will not.

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By Donald Craig Mitchell, Special to CalMatters

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

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

That may seem a laudable way for UC to atone for the facinorous means that, beginning in 1850, the State of California employed to clear the public domain of the Native Americans who had been occupying it. But it is 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 U.S. Senate decided it would not ratify any treaties with Indian groups in California. With a single exception, no act of Congress has created “federally recognized tribes” in California. However, the U.S. Bureau of Indian Affairs says there are 109 groups in California that are “federally recognized tribes.” 

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

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

President Drake admitted as much when he assured students of Native American descent who are not members of a “federally recognized tribe” that “tuition scholarships for California residents from California’s non-federally recognized tribes may be available through external organizations.”

The governing body of a “federally recognized tribe” has exclusive 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 a scintilla of Cherokee blood because the individual is a descendant of a Cherokee listed on an 1898 census. Which is why the Cherokee Nation has 400,000 members.

So UC is delegating to tribal councils — many corrupt and many that enroll and disenroll their members in ways that are arbitrary and unfair — blank-check authority to decide who will get 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. How many of the other 259,000 live in California? In 2018, there were 25,000. So a student will receive free tuition for no reason other than that he or she is 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-gaming machines. In 2020, those tribes received gaming revenue that totaled $8 billion. 

The Bureau of Indian Affairs says that how much of that revenue those tribes give out to their members as payments is no one’s business but the tribes’. 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 annually may receive $50,000 or considerably more a year gets free tuition for no reason other than that he or she is a member of a “federally recognized tribe”?

When he announced the new tuition-waiver policy, President Drake touted it as a way for UC to acknowledge “historical wrongs endured by Native Americans.” While in California during the 19th century Native Americans endured grievous historical wrongs, this attempt at atonement is an ill-considered woke gesture that the Board of Regents should direct President Drake to rethink.

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