Seeking Stability in Fort Lewis College Tuition Waiver

This is part three in a four-part series from The Durango Herald about the Native American tuition waiver at Fort Lewis College in Durango, Colorado.

This is the third in a four-part series about the Native American tuition waiver at Fort Lewis College in Durango, Colorado.

As government budgets continue to suffer the repercussions of the economic recession, line items in the Colorado Department of Higher Education are being cut left and right, except for one: Fort Lewis College’s tuition waiver.

The $13 million annual cost, which goes to Fort Lewis College to cover the tuition of every Native American student, has grown steadily. Native Americans now make up about one-fifth of the college’s 3,900-person student body. About 85 percent of the Native American students are from outside Colorado, meaning the state must reimburse the college at the nonresident tuition rate of $16,072 for those students.

The tuition waiver dates back to 1911, when the federal government offered Colorado 6,279 acres of land south of Hesperus that became FLC’s former campus. In exchange, Colorado agreed to maintain the land as an institution of learning that would admit Native American students tuition free.

Despite being a contractual obligation, the tuition waiver faced two challenges to its funding, most recently in 2010. And with increasing state cuts to higher education, Fort Lewis College administrators have turned to Congress to create a more sustainable funding source for the tuition waiver.

Just months after becoming Fort Lewis College’s president in 2010, Dene Kay Thomas began an aggressive campaign to promote legislation that would require the U.S. Department of Education to cover tuition costs for out-of-state Native American students at the level the year the bill is approved. The state would continue to pay the tuition costs for resident Native American students.

“We’re trying to be proactive,” Thomas said. “There are a number of (legislative or judicial) approaches that could be taken that would be damaging to Fort Lewis.”

With the vast majority of its Native American students coming from outside Colorado, the college also argues that other states are benefiting from the education FLC provides and should therefore share the cost of that education.

“It’s a fairness issue, the state of Colorado has been supporting out-of-state students for a very long time,” Thomas said.

The president and a delegation from FLC traveled to Washington, D.C., six times during the last two years making rounds up and down the halls of Congress to gain bipartisan legislative support for the bill.

The college also has paid tens of thousands of dollars to the Denver-based law firm Holland & Knight to draft and lobby for the bill.

The college has a contract worth $120,000 per year with the firm that ends in January 2013. And while the Fort Lewis College Foundation technically pays that $120,000, the foundation deducts that amount from annual administrative costs it pays to the college, said Steve Schwartz, vice president for administration and finance.

The tuition waiver bill, which is sponsored by Colorado Sens. Michael Bennet and Mark Udall, and Rep. Scott Tipton of Cortez, was introduced last year in both houses and has 21 co-sponsors.

The proposal also has gained support from a wide base of Native American organizations, including the National Congress of the American Indians and the Native American Rights Fund.

But a small group of opponents remain, arguing the bill allows Colorado to shirk the responsibilities it took on when it took ownership of the property near Hesperus, commonly know as the Old Fort.

The bill struggled to gain support from the college’s student government where some students questioned the true intent of the measure and brought up concerns that new legislation could open the waiver to a challenge under the equal-protection clause of the U.S. Constitution, said Chad Yen, who was a student senator from 2010 to 2012.

A group of professors, students and legal professionals also oppose the bill because they believe it allows the state to ignore continuing issues with the Hesperus land.

The proposed bill grants Colorado an undeserved escape from its contractual obligation, FLC sociology professor Carey Vicenti said.

Colorado’s contract is separate from the nation’s obligation to educate native people, so asking the federal government to cover Colorado’s costs under this pretense is “just like a bank bailout,” said Vicenti, who worked as a former Chief Judge of the Jicarilla Apache Tribal Court and briefly as an assistant to the head of Bureau of Indian Affairs during the Clinton administration.

Members of the Buffalo Council, a student group pushing for accountability and future indigenous-related uses of the Old Fort property, argue that without mention of the Hesperus property, the bill lets the state shrug off its accountability for the Hesperus land.

“How can (the college) go to the feds and say where’s our money when they didn’t meet the obligation of taking care of the trust asset?” asked Bobby Abshire, a former student and member of the Buffalo Council.

The bill faces a tough road to passage, said Rebecca Tsosi, executive director of the Indian Legal Program at Arizona State University’s College of Law.

On the brink of election season, Congress won’t touch anything that’s remotely controversial, including the tuition waiver legislation, Tsosi said.

Any bill that requests additional funding already is a tough sell in a Congress dedicated to deficit reduction, but the bill also risks being construed as an earmark, which will make its journey even more difficult, said former Colorado U.S. Sen. Ben Nighthorse Campbell, who is an employee of Holland & Knight and helped draft and lobby for the legislation.

Even if it is approved, the bill could become an unfunded mandate unless both houses agree to appropriate money for the waiver. That requires legislators to find and redirect $13 million to the waiver, which is no small task, Vicenti said.

So why is the difficult job of securing federal support for the waiver falling on the college’s shoulders?

The college has much to lose if funding for the waiver is ever cut off or reduced, so college administrators and Thomas have to show they’re putting up a fight, Vicenti said.

“From a political perspective, she has no option,” he said. “She’s got to be able to say ‘I’m trying’.”

Waiver has had to survive rocky history

Fort Lewis College has good reason to be proactive about protecting the tuition waiver from state legislators skeptical of the $13 million annual price tag.

Legislators first tried to diminish the scope of the tuition waiver in 1971. The Colorado Legislature passed a bill limiting the waiver only to students who lived in Colorado and couldn’t otherwise afford college. The law was based on an opinion from Attorney General Duke Dunbar stating that because the college no longer occupies the original site of the Fort Lewis Indian School, the tuition-free requirement is no longer valid. Sit-ins, boycotts, protests and two lawsuits ensued.

Sammy English, then associate director of the National Indian Youth Council, compared the bill to “another Sand Creek” – referring to the 1864 massacre of several dozen Cheyenne and Arapahoe tribe members in the southeastern Colorado Territory.

“If we lose the battle at Fort Lewis, the decision will affect us and all our children,” he said in a March 1971 Durango Herald news story.

The federal government and a group of students sued the state separately, challenging its interpretation of the 1911 contract. Two years later, the 10th Circuit U.S. Court of Appeals ruled that Colorado’s acceptance of the specific terms of the contract did not allow the state to duck out of its promise to grant all Native American students free tuition at Fort Lewis College.

In 2010, state Rep. Karen Middleton introduced a bill aiming to reduce the amount the state paid FLC for out-of-state Native American students. The concept behind the bill was purely financial in proposing a way for the state to maintain the waiver without negatively affecting other aid, said Chad Marturano, director of legislative affairs at the Colorado Department of Higher Education. But many saw the bill as a threat to the waiver.

Students, educators and Native American tribes immediately rallied against the bill and news coverage of the issue sparked dozens of comments.
“A promise is a promise … thought our government had learned how to honor those …” one reader posted below a Jan. 16 article on The Durango Herald’s website.

Citing misunderstandings and unexpected backlash, Middleton pulled the bill a few days later.

This article originally appeared at Reprinted with full permissions from The Durango Herald.

Read Parts 1 and 2 here:

A Historic Promise: Fort Lewis College Tuition Waiver Still Changing Lives for Better

Money Made, Money Lost? Leases on Former Fort Lewis College Campus Raise Ire