A judge in Montana refused to dismiss a lawsuit Tuesday brought by Native American tribes, parents and students against state education leaders that alleges the state’s unique constitutional requirement to teach students about Native American history and culture has not been upheld.

“It’s shocking to me that we are this many decades down the road, with this many court challenges, this many legislative enactments … that this is where we sit here today in 2023,” said Judge Amy Eddy, who explained she would provide the specific rationale for her ruling in about a month.

The hearing came 50 years after the state’s constitution that embedded this educational requirement took effect. Other states, including Connecticut, Washington, Oregon, California and North Dakota, have committed in recent years to boosting these types of educational requirements, but Montana remains the only one that includes it in its constitution.

Deputy Attorney General Thane Johnson, representing the defendants, which includes the Montana Office of Public Instruction and the Montana Board of Public Education, argued that not only is the constitutional clause — aside from funding — “aspirational,” but it’s not up to the state to enforce these content standards.

“I think this case is about this old cliché, you can lead a horse to water but you can’t make it drink … The defendants can provide the funding, can provide the resources to the school districts, but ultimately the school districts are in charge of teaching the curriculum of the school,” Johnson said.

Alex Rate, legal director for ACLU of Montana, pushed back, saying leading a horse to water and making him drink is indeed the responsibility of the state.

“If tomorrow half of the schools in the state decided to stop teaching math, the state would certainly not take the position that it has no role in uniformizing math curricula in those circumstances,” Rate said. “And the ironic thing is, find me math in the Montana constitution. It doesn’t exist.”

In 1999, the Legislature passed the Indian Education for All Act, which once again calls for Native American instruction and requires education officials to work directly with tribes when developing that curriculum.

In a 2004 lawsuit over school funding, a state court found that Montana’s educational goals showed no commitment to the preservation of Native American cultural identity. Funding started to be allocated a few years later.

The current lawsuit, which was filed in 2021 in District Court in Great Falls, Montana, aims for school districts to account for the program’s funding they are allocated and spend the funds on Native American education, as well as face consequences for not doing these things, Rate told The Associated Press.

During the hearing, Eddy brought up a claim in the lawsuit that school districts documented spending only about 50% of the $6.7 million allocated for the Indian Education for All program funds in 2019 and 2020.

She said she is having a difficult time wrapping her head around the argument that the state doesn’t have a responsibility for making sure that funding is allocated properly.

“I have a really difficult time with that conclusion,” she said. “What if this was special education funding?” Eddy asked.

The lawsuit cites an independent evaluation of the program from 2015, which found its implementation to be “very minimal” in some districts, attributing this to “the absence of accountability.”

Schools have also reported using the funds on things that don’t directly relate to the program, including an elementary school library in Helena that appeared to have purchased a book on marmots using the funds, according to the lawsuit.

Shauna Yellow Kidney, a citizen of Blackfeet Tribe and a parent of three elementary school students in Missoula, said Monday night ahead of the hearing that she wants the cultural knowledge of the eight federally recognized tribes in the state taught, but also the value of Indigenous practices.

“We have ways of knowing that are different from the white community, and they’re powerful and they’re beautiful,” she said. “And that would benefit my girls, with every step of their education, by being able to share that with their classmates — the beauty and the power of Indigenous tribes here in Montana – what they once stood for and what they still stand for today.”

— By HALLIE GOLDEN Associated Press