A recent memorandum issued by the U.S. Department of Justice allows the National Science Foundation to continue administering the Tribally Controlled Colleges and Universities Program while declaring Native-serving institutions in Hawaii and Alaska ineligible for support.
By Paul Boyer
An August 12 opinion released by the Department of Justice’s Office of Legal Counsel found that the National Science Foundation’s Tribally Controlled Colleges and Universities Program (TCUP) is constitutionally permissible, in recognition of the nation’s government-to-government relationship with federally recognized tribes.
“Tribes exercise a measure of sovereignty and self-determination through TCUs, and providing awards to such institutions furthers the federal government’s unique responsibilities toward Indians,” the memorandum affirmed.
However, the opinion found that Native Hawaiian- and Alaska Native-serving institutions not charted or controlled by a federally recognized political entity are ineligible for TCUP support.
Previously, institutions of higher education in Hawaii and Alaska that met established Native enrollment thresholds were allowed to seek TCUP funding, resulting in numerous TCUP awards to campuses within the University of Hawaii and University of Alaska systems.
However, the Justice Department memorandum, “Constitutionality of the National Science Foundation’s STEM Programs,” asserts that these programs are unconstitutional because they were “designed principally to further a generalized goal of racial diversity rather than uniquely Indian interests” and do not “meaningfully involve the government-to-government relationships that characterize federal support for TCUs.”
To be eligible for TCUP support, institutions in Alaska must be controlled or chartered by federally recognized Alaska Native villages or Alaska Native Corporations, the memorandum asserted. One institution—Iḷisaġvik College, established by the North Slope Borough—currently meets this requirement.
In Hawaii, only institutions “controlled or chartered by federally recognized Native Hawaiian entities” would be eligible for TCUP support. However, as the slip opinion acknowledged, no such political entity exists. “In practical terms, then, the TCUP cannot presently include any Native Hawaiian-serving” institutions, the document stated.
The implications of the latest opinion remain unclear. The NSF has not yet indicated when or how it will modify its programs. The TCUP Hub, which serves all TCUP-eligible institutions, including those in Hawaii through its affiliated Hawaii Mini-Hub, remains committed to serving the needs of its constituency.
The latest memorandum (available here) addressed several other NSF programs, finding that the NSF’s TCU computer-science awards are allowable, while asserting that several minority-serving programs, including the Louis Stokes Alliances for Minority Participation Program, are unconstitutional.
Paul Boyer is editor of the TCUP Hub website.
