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50 year fight for Native Education leads to lawsuit against Montana Office of Public Instruction

It has been 50 years since Montana signed a requirement for Indian education into its constitution. And it’s been 50 years of fighting to fulfill that requirement.
Posted at 1:09 PM, May 05, 2023

MISSOULA - It has been 50 years since Montana signed a requirement for Indian education into its constitution. And it’s been 50 years of fighting to fulfill that requirement.

Yellow Kidney v Montana is a lawsuit filed against the Montana Office of Public Instruction (OPI) and The Board of Public Education for failing to implement the constitutional requirement for Indian education in Schools.

Montana tribes, Native students and parents, non-native community members, the American Civil Liberties Union (ACLU) and the Native American Rights Fund (NARF) came together to bring this lawsuit to Montana courts in 2021.

In 1972, Native families and students testified in Helena at the Montana Constitutional Convention, explaining the need for better public education about Native history.

Their testimony led Bozeman delegate, Dorothy Eck, to recommend the mandate for Indian Education, which was written in the 1972 Constitution of Montana under Article X: Education and Public Lands as “The state recognizes the distinct and unique cultural heritage of the American Indians and is committed in its educational goals to the preservation of their cultural integrity.”

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The 1999 Indian Education for All Act reaffirmed the 1972 amendment that constitutionally required Indian Education.

Twenty-seven years later, in 1999, this mandate was reaffirmed in the Indian Education for All Act (IEFA). They added to the original commitment, including “every educational agency and all educational personnel will work cooperatively with Montana tribes or those tribes that are in close proximity, when providing instruction.”

Still, Native peoples did not see sufficient improvement in Indian education in Montana. Those who had advocated for IEFA noted the lack of funding for this branch of curriculum. This concern backed the Helena Elementary and Columbia Falls lawsuits, which led to a Montana Supreme Court decision in 2005, increasing general funds for public schools.

In 2007, Montana Legislature started dedicating some of these newly allocated funds for IEFA, about $3.5 million across the state. While this seemed like a win for Native education, it didn’t lead to what IEFA advocates hoped for.

“Those lawsuits were not intended to focus on enforcement and implementation,” Alex Rate, legal director for ACLU Montana and attorney on Yellow Kidney v. Montana says. “Their goal was merely to ensure that the programs were funded. So now we have funds that are flowing to the school districts, but we don't know how those funds are being spent. We don't know if they're being spent on Indian education or, you know, a new scoreboard for the football field.”

The Native Youth Powwow has been a tradition to honor graduating MCPS Native seniors. It is led by youth, with youth MC's and drum circles, but it may not happen next year, due to lack of funding.

The vision for these funds was for schools to spend them on Native education and programs, but it was not being closely reported. However, funding for public schools is fairly low anyways, so the money was more likely being spent on general school costs and salaries.

“There's no accountability on the part of local school districts, and as a result, there's really, you know, no impetus to ensure that Indian Education exists in classrooms across the state,” Rate says.

For example, Missoula County Public Schools (MCPS), which received $84,512 for high school IEFA and $127,710 for elementary IEFA, uses these funds to intentionally hire staff who can focus on Indian education, according to MCPS Director of Business and Financial Services Pat Mchugh.

Luliana Brown is a sophomore at MCPS. When asked if she had adequate Indian Education growing up, she says it's been getting better, but she still wanted more.

“We definitely got a lot more Native American teachers and language speakers," she says. “I really wanted more though. It was just like here and there.”

Yet, there are no funds left over. For example, the annual Native Youth Powwow at Sentinel High School, which honors Native graduating seniors is paid for by fundraising and donations, rather than IEFA funds.

“Almost everything we do here in MCPS, it comes down to money,” says MCPS Native American Educational Specialist Raymond Kingfisher. “There’s no money to pay after school programming. There’s no money to pay for events.”

Though Kingfisher admits they aren’t asking for much, as of now. He just wants to be able to bring Native students together and give them a community identity.

“I can sit here all day and tell you, I don’t see this, I don’t see this, I don’t see this. But, you know, we have a big district. It’s huge. We have a lot of employees, teachers,” he says. “We just want today, we want these kids to know their identity of who they are.

Mchugh says MCPS works to ensure the curriculum includes Native education in every subject, from math to P.E. But does say they don’t specifically track where their IEFA funds go towards.

Indian education is hard to define but has historically been too generic, according to Kingfisher.

Raymond Kingfisher is a Native American education specialist for MCPS. “This Indian Education, it really reminds me of the treaties that were made with the government. And none of them stand today they were all broken," he says.

“Generally here, they say ‘Indents,’ but that's just a generalization of all of us tribes together,” he says. “I think it's cultural integrity, you know, distinguishing the linguistic and cultural differences. Breaking it down. That word ‘Indents,’ you know, who are these Indents? You know, there's Blackfeet, there's tribes here in Montana, you know, what's the history of them?”

Kingfisher explains that each tribal nation has specific cultural habits, history and customs, and grouping them all together into one, generic Native education, is insufficient.

“The Crow Nation and the Blackfeet Nation, they’re different people,” he says. “We speak different languages, we do things different.”

The bottom line, according to Rate, is a failure of leadership for IEFA.

“The state agencies, the Board of Public Education and the Office of Public Instruction have always taken the position that it's the responsibility for local school districts to ensure that Indian education exists,” he says. “And meanwhile, local school districts are looking for guidance and enforcement from the state agencies. So there's a lot of finger-pointing back and forth and the result is that we have, you know, really sporadic and nonuniform implementation of Indian education and classrooms across the state.”

Brooklyn Brown is a freshman at MCPS. When asked if she had adequate Indian Education growing up, she said it could've been better.

“I wish there was more. Because our elders are dying out, you know? And our culture," she said.

That has led to Yellow Kidney v. Montana, which is looking to see uniform reporting for IEFA funds. If a school reports they are no longer going to teach math, they’ll lose accreditation status. The plaintiffs are looking for a similar consequence for failure to teach Indian Education.

They are also asking for better standards of content. As the IEFA Act says, schools must “work cooperatively with Montana tribes or those tribes that are in close proximity, when providing instruction.” And this is one way certain districts have been successful.

“There’s some schools that do really well,” Kingfisher says. “But they use the tribes close to them. They’ll do a lot of that. They’ll bring in knowledge keepers that come and they’ll teach.”

But that’s what they’d like to see across the state.

“So accreditation and content standards are critical in terms of utilizing state enforcement powers to ensure broad and robust Indian Education in Montana,” Rate says.

Snpaqsin Morigeau is a senior at MCPS. He is responsible for implementing Salish signage at Big Sky High School. When asked if he had adequate Indian Education growing up, he says he's seen it improve, but is hoping it will improve further.

“Not as much as it should’ve been. But over the years we’ve been getting more and more," he says.

Adequate education on tribal history and culture is critical for the mental health and success of Native students, according to Kingfisher, who explains the loss of Native life to suicide on reservations and in public schools.

“We have these kids out here that don’t have an identity,” he says.

Teaching these kids about their culture and heritage is one way to help support these students, show them they have a community to lean on.

The defendants in Yellow Kidney v. Montana attempted to have the lawsuit thrown out, stating they could not be held accountable for failing to uphold a law that had such vague language.

“Their primary argument is that the language in the constitutional provision is vague and aspirational. And so therefore, there's no real duty by the state agencies to implement Indian Education, and the court roundly rejected that argument,” Rate says.

Currently, the trial is set to take place in August of 2024, but Rate expects it will eventually be appealed to the Montana Supreme Court.

More in-depth information on Yellow Kidney v. Montana and the history of the legal fight for Indian Education in Montana can be found here.