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Spirit of the law

Thirty years after the Montana Constitution promised to teach Indian history \nand culture, has the state lived up to its promise?

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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. —Article X of the Montana Constitution.

Thirty years ago, the people of Montana ratified a new Constitution that guarantees the protection of American Indian history and culture through public education.

Today, with more than 500 school districts across the state, each one managed by its own locally elected school board, how well that promise has been fulfilled is as difficult a question to ask as it is to answer. A new law passed in 1999 requires educators to revise what they teach to include Indian culture and history. But mandating new classroom curricula is only part of the answer. There are also issues of resources and accountability, which is to say, money and testing. And there are plenty of critics who argue that the state has not lived up to its end of the bargain.

Recognizing the problem

Hellgate High School teacher Marilyn Ryan is an inveterate collector of new instructional materials. The week before school started this fall, she clipped several articles to use in her senior-level class. One article discusses a proposal on the Flathead Reservation to relax requirements for tribal membership from one-quarter blood quanta to any form of direct ancestry. The other article discusses the reconfiguration of several legislative districts to ensure at least one district has a majority Indian voting block.

While Ryan’s use of newspaper clippings is appropriate—she teaches current events and all too often Indian issues are taught as though the Battle of the Little Big Horn and the flight of the Nez Perce were the last important events in Indian history—it also illustrates another problem: a lack of accurate and quality teaching materials about the Indians of Montana.

“The big textbook companies write their materials for Texas and California,” laments Ryan. “It’s not hard to teach Native American Studies, but you have to teach yourself first.”

Especially with the state’s current budget crisis, most school districts don’t have the funds to create new programs or purchase new materials to comply with Article X. It’s a problem Montana State University Adjunct Professor Michael Jetty hears often as he trains prospective teachers to teach Indian culture and history.

“A lot of teachers want resources,” says Jetty. “They say, ‘Where’s the stuff? I want to make sure I’m teaching accurate stuff.’ We asked for $60,000 one [legislative] cycle and we got nothing. And it’s only going to get worse.”

During the recent special session, the Legislature cut nearly $6 million from the state education budget, which had already been shrinking under reduced state support and lower enrollment. In response to such difficult circumstances, Jetty has had to adopt some unusual tactics. If he can’t find good teaching materials, he uses biased materials to help teachers identify prejudices and correct inaccuracies.

When prospective teachers enter Jetty’s college classroom, many of them express frustration at the level of multicultural education. Most of them understand the purpose, but feel unprepared because they never learned Indian culture and history in their own schools. Jetty encourages them by appealing to their sense of purpose.

“I always go back to the law, the constitutional obligation,” Jetty says. “I say, ‘You’re going to have to teach this and you can’t teach what you don’t know.’”

Eventually, Jetty hopes all students—not just school officials—will be held accountable for knowing Indian history and culture. He would like to see standardized tests tailored to include questions about Montana’s Indians. “It has to be assessed at some point or why bother teaching it?” Jetty asks.

Writing educational policies and drafting new curricula are the first step in making good on Article X. But everyone agrees it’s an easy first step. The harder work comes in the classroom, where lesson plans and students come together. Janet Robideau, director of Indian Peoples Action (IPA), gauges progress from the feedback she receives from parents. “When school starts next week, we’ll know,” Robideau says. “[Recently] the issue has been less curriculum and more fair suspension policies.”

A few years ago, IPA members focused on what children were being taught, so Robideau’s group worked with Missoula County Public Schools, the city’s largest public school district, to write an educational policy and revise its social studies curriculum. Lately, they have begun to address the discipline issue and how it contributes to Indian dropout rates.

Article X is the only place in the Montana Constitution where American Indians are separately recognized, according to Larry Elison and Fritz Snyder, authors of The Montana State Constitution, A Reference Guide. They characterize the provision as “altogether new” and “laudatory,” but note that the “difficulty is in the details, and the legal and practical response has been minimal.”

“Even this minimal response has been challenged,” write Elison and Snyder. “There is an increasing sense of separation between the Montana tribes and the rest of the state.”

Helena to the classroom

The state took a big step forward in 1999 when the Legislature passed House Bill 528, sponsored by Rep. Carol Juneau (D–Browning). HB 528 encouraged “every Montanan, whether Indian or non-Indian” to learn about Montana tribes and required that school officials address “the cultural heritage and contemporary contributions” of American Indians in every aspect of education.

Article X and HB 528 are commonly misunderstood, says Juneau, to mean that only Indian students should be taught about their own culture and history. Ensuring Indian students have an opportunity to learn about their own heritage and study current issues regarding their tribes is important, but not the only point.

“[All people] need to understand the relationship of this country to Indian nations,” argues Juneau. “We need to know about each other and understand each other. Think about the issues that concern non-Indians such as land rights and water rights. If all Montana people knew about each other and each other’s history it would be easier to find solutions.”

Each year Missoula County Public Schools revises a portion of its curriculum. The social studies curriculum was last reviewed in 1998, a year before HB 528. The district was already committed to increasing its emphasis on Indian history and culture, says curriculum director Robert McKean, but had to draft a new educational policy to comply with the new law.

“I’ll tell you, having a curriculum and having it implemented are different things,” McKean says. “For a long time, teachers individually have been working on this in their classrooms. The question is from what perspective: the peculiar knowledge of one teacher or from a consistent, universal perspective?”

New policies and new curricula may satisfy the letter of the law, but abiding by the spirit of the law must take place in the classroom. This means preparing teachers with summer workshops and providing new materials. This year, some Missoula teachers will experiment with a series of new lesson plans adopted from Denver public schools which begins with “Who is an Indian?” continue with “Etiquette,” and end with students attending a powwow.

Each year more teachers with personal initiatives bridge the gap between well-meaning policy and the lack of resources, says Joyce Silverthorne, a member of the state Board of Public Education. However, the extent to which HB 528 has been implemented won’t be known until next spring, when all the state’s public schools submit their first report in the five-year “School Improvement Process.” To date, mostly it’s been the reservation school districts that have embraced HB 528, says Silverthorne, while other districts lag far behind.

“We have a grassroots movement to implement [HB 528] and it’s policy driven from the top, but what’s missing is the middle ground,” Silverthorne says. “The parents are talking about it. The policy is in place. But the greater number of educators in Montana are only just now hearing about it.”

Raising the bar

The bar exam—the final hurdle all prospective attorneys must clear to be eligible to practice law—may seem a remote place from which to gauge the progress of Indian education over the past 30 years.

But Professor Raymond Cross, who teaches federal Indian law and public land law at the University of Montana School of Law, knows that the bar exam is the final chance to hold attorneys accountable for learning these subjects. The Yale graduate and two-time victor at the U.S. Supreme Court believes it is also the last chance to hold the educational system accountable for teaching Indian issues to them.

The bar exam is, after all, a culminating event in a long and arduous educational process. In addition, the bar exam cuts to the heart of many issues that affect native people’s rights. Tribal sovereignty is based on federal Indian law, but if few people understand it then it can’t be wielded effectively.

“What this means to me is that it’s incumbent upon this state and its agencies to create a bicultural environment,” says Cross. “Putting Indian law on the bar exam might be one step. Look it: The reason people took the time to put this [Article X] together is to give an idea life. I think this is right and it’s fairly ripe, too.”

Three recent Supreme Court rulings demonstrate the complexity of legal cases when the parties involved are both Indians and non-Indians of Montana. In 1999, the Supreme Court reaffirmed an earlier decision which banned new water-use permits on the Flathead Reservation until the water rights of the tribes could be established. The so-called Ciotti decision ruled that the water rights needed to be quantified before additional water rights are granted to anyone living on the reservation. Subsequently, the Legislature tried nullify the ruling but the Supreme Court reiterated its opinion. In 2000, the Supreme Court reversed the decision of a Gallatin County District Court judge who gave custody of a physically abused 3-month-old infant to a white couple instead of Indian relatives. The opinion noted that the Indian Child Welfare Act insists that children be placed in an Indian community, even though the infant had established strong emotional ties to its white guardians.

In 2001, the Supreme Court upheld the decision of a Lake County District Court that it did not have jurisdiction in a lawsuit between two companies, one of which was majority-owned by a tribal member, for work performed on the Flathead Reservation. The district court deferred to the authority of tribal court because the tribes have “sole jurisdiction to hear all commercial disputes which arise on the reservation and involve a tribal defendant.”

This year, New Mexico became the first state in the nation to add federal Indian law to its bar exam. Federal Indian law, a centuries-old body of treaties, legislation and legal decisions, defines the relationships among the tribes, states and the federal government. It differs from tribal laws, which are unique to each tribe and are based on traditional justice systems.

As staff attorney for the Legislature, Eddye McClure sees firsthand the long-term consequences of an educational system that doesn’t adequately teach Indian history and culture. Recently she compiled an educational booklet for legislators to “catch up” on Indian legal issues.

“It’s my philosophy that we’re doing non-Indians a disservice. It’s a lot easier to learn when you’re young,” McClure says. “And if you’re a Lake County or Big Horn county commissioner, you’re going to deal with the tribes.”

Because ensuring well-informed lawyers now would mean well-informed judges in the future, McClure would also like to see federal Indian law added to the bar exam. McClure serves on the Indian Law Section, a committee of the State Bar which was formed in 1992.

“For 10 to 15 years we’ve tried to get a question, or even part of a question, on the state bar,” McClure says. “We volunteered to write the question for them but it hasn’t happened.”

As chair of the Indian Law Section in 1994, McClure submitted a report to the State Bar that assessed minority involvement in Montana’s legal system. The first problem she noted was “the lack of emphasis on Indian and minority law during and after law school.” The report recommended that attorneys complete continuing education credits, that law schools increase course requirements, and that Indian law questions be added to the bar exam. “Attorneys in the field of Indian law view this continuing omission as a silent statement that Indian law is considered less important than other areas of law,” the report concludes.

Eight years later, little has changed. These days federal Indian law is discussed in many classes at the UM Law School, not just as a separate subject as taught by Professor Cross, according to Maylinn Smith, director of the Indian Law Clinic at the UM Law School, the only law school in the state. But Smith says she would like to see federal Indian law included on the bar exam not as a separate subject, but “dovetailed” into other questions about civil procedure, family law, contracts, and so on.

“The advantage of adding Indian law as a testable subject is that students will have to have at least some awareness,” Smith says. “At least they will know then that they don’t have enough knowledge to practice in that area.”

Such a development would make life easier for John Carter, an attorney for the Confederated Salish and Kootenai Tribes for the past 19 years. Frequently, says Carter, he finds himself in court needlessly with opposing attorneys who don’t understand federal Indian law. Carter and the tribes often prevail in those situations, but they can be costly victories. “They cost both themselves and their clients—and my client—an incredible amount of time and money,” Carter says.

Delivering on a promise

Still, not everyone agrees that federal Indian law should be on the bar exam. And not everyone agrees for the same reasons as professors Cross and Smith and attorneys McClure and Carter.

Missoula attorney Randy Cox, chairman of the Board of Bar Examiners, questions whether all lawyers need to know federal Indian law and whether the test would be an appropriate mechanism anyway.

“We wouldn’t test on securities law or antitrust laws,” Cox argues. “It’s a detailed subspecialty. Our charge from the Supreme Court is to determine minimal competency to practice in Montana. The areas we test tend to be fairly basic—torts, contracts, criminal law, procedure, evidence—the core curriculum of law school.”

Cox’s Board develops and administers the bar exam. The first portion of the test includes one day of multiple choice questions on multi-state law. The second part of the test includes another day and a half spent answering 11 essay questions which can cover as many as 15 different subjects. The essay questions are written by members of the Board, law professors, and leading attorneys.

Since the State Bar serves the Supreme Court, Cox says his Board would create questions regarding federal Indian law only if asked to by the state’s highest court. Until then, the Board will not take a position on the issue.

“They develop the rules. We just carry out part of the mission,” Cox says. “Maybe there are good, sound reasons. But I’ve practiced for years and have had little to no contact with Indian law.”

Cross says the Supreme Court could ask the State Bar to include federal Indian law and complete the circle of public education, at least for lawyers. In fact, this fall students in Smith’s clinic will prepare a petition to do just that. Or, someone could sue the state, hoping that the justices would hand down a decision that would add weight to Article X. Montana Attorney General Mike McGrath, while acknowledging the large amount of interaction between his office and the tribes, declines to comment on whether he thinks Indian federal law should be included.

Nevertheless, attorneys on McGrath’s staff work on Indian issues every day, from water to gambling to voting rights. They also develop cooperation between tribal and state law enforcement officers and analyze financial contracts between tribes and the Department of Public Health and Human Services.

As for New Mexico, Santa Fe attorney Michael Gross, chairman of that state’s Board of Bar Examiners, cites one reason for encouraging competency in federal Indian law. In his state, tribes are becoming a major economic force, with casinos and other business enterprises that transcend reservation borders and racial identity.

Gross’s argument could apply to Montana as well. For example, the Crow tribe recently signed a potentially lucrative deal with a Colorado-based mining company to develop coal-bed methane wells in the Powder River Basin while nearby landowners worry about environmental damage and property devaluation.

But another reason for adding Indian law to the New Mexico bar exam had nothing to do with the increasing complexity of Indian and non-Indian relations, says Gross.

“About 10 percent of this state is Indian,” Gross says. “It’s a sign of respect for their legal status and their culture. It’s long overdue.”

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