Excerpted From: Karen E. Lillie, Returning Control to the People: The Native American Languages Act, Reclamation, and Native Language Teacher Certification, 71 Buffalo Law Review 289 (April, 2023) (203 Footnotes) (Full Document)


KarenLillieIn 1990, Congress passed the Native Americans Languages Act (NALA), recognizing that “the status of the cultures and languages of Native Americans is unique” and--critically--that the United States “has the responsibility to act together with Native Americans” to ensure that the languages and cultures of the Native People will “surviv[e].” This Act articulated that the United States must “preserve, protect, and promote” Native languages and cultures in recognition of the rights and freedoms Native People should have afforded to them in “us[ing], practice[ing] and develop[ing]” their languages, not just by virtue of their sovereignty status, but particularly because of the U.S. government's heinous treatment inflicted upon them.

One way of ensuring language survival is, obviously, to increase the number of speakers. Language instruction as a means of that goal should be provided in any school setting--meaning both public preK-12 institutions and those on tribal lands--yet many states do not include Native languages as even an option for students in schools. Furthermore, many states do not provide a way for teachers to become licensed or certified to teach the languages they know, even were the languages to be offered. Since many Native languages have few speakers remaining, or may actively be in the process of reclaiming their language before it is lost to future generations, it is imperative that states recognize the barriers they put in place that prevent Native groups from being able to fully realize their language's survival in what is a predominantly English-speaking country. The sovereignty of Native tribal groups needs to be remembered and respected; the value of Native languages--which are inherently culturally-tied--needs to be recognized as separate and distinct from foreign languages; and Native languages must be supported by any means possible. States can assist in this if they embrace NALA and make adjustments so that Native languages and Native language teachers are welcomed and seen as equal.

Across the United States, teacher certification requirements are articulated by the State agency that oversees education, rather than by the federal Department of Education. Any teacher, regardless of specialization area, needs to have a certificate of some sort in order to conduct classroom instruction within a public school. For future teachers of foreign languages, like any other certification, there are established pathways in place to become licensed and recognized as teachers. Entire school departments can be devoted to these “world” languages. These languages typically are valued and seen as a way to increase American children's competitiveness in the world, and so there are entire organizations devoted to increasing K-12 instruction in these languages. However, the same cannot be said for many prospective Native languages.

The overall lack of Native language instruction in public schools is indicative of, perhaps, how most states do not value or recognize the validity or importance of Native languages. This devaluation extends to teacher certification: less than half of states have a pathway for Native language teachers to become state-certified in their Native language. This is a problem because NALA clearly articulates and strongly encourages that states make exceptions regarding teacher certification so as to assist in maintaining and reclaiming Native languages. It is almost as if states, educators, and professionals involved in the teacher certification process do not know NALA exists.

Because many states do not make allowances for incorporating Native languages into their statutes regarding teacher certification, Native language teachers face obstacles that other teacher candidates do not. The barriers in place are a major hindrance on many levels, especially when one considers that many fluent Native language speakers are Elders. The entire state-determined teacher certification process is systemically keeping Native populations from providing Native language instruction in public schools to future generations of potential speakers--in direct opposition to NALA's purpose and goals.

This Comment argues that to help promote the vitality of Native languages, states need to follow the articulations and recommendations outlined in NALA and must either create or refine pathways for Native language teacher certification before these Native languages are lost. This may be done by amending existing statues around certification or creating new ones.

Part I of this Comment discusses the history and present status of Native languages in the United States, and what happens when languages are lost to future generations. Solidifying this background provides a basis for why NALA came to be and why it is critical that there are more teachers certified in their Native languages. Part II explains NALA, the foundation on which the argument for Native language teacher certification will be made.

Part III examines the process of teacher certification, generally, which is similar across the states in regard to typical licensure components. This Part points out any power the Federal government has over teacher certification via the U.S. Department of Education and highlights the control states have in dictating and in being gatekeepers over who is eligible for certification. As a point of focus, the Part talks specifically about Native teachers and their certifications, or lack of, in their Native languages. Next, in Part IV, states' policies regarding teacher certification and Native languages are illuminated and examined as to whether or not they have aligned with NALA. This Part shows how there is a range of governance models in approaching the teacher certification crisis, some of which are more primed to help states meet the goals outlined in NALA. Part V concludes with the argument that, at a minimum, we need a co-governance model in place. Such a model would ensure that Native language teachers have a pathway to state-recognized teacher certification in public schools while simultaneously ensuring tribes have power in establishing that determination. That may mean, in many cases, that statutes must be written or regulatory adjustments made.

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Since many Native tribes have so few speakers, and/or are in the process of reclaiming their language before they are lost to future generations, it is imperative that we recognize the sovereignty of these Native people even within state public schools, particularly over their right to the learning and use of their languages, and see their language and culture as separate and apart from foreign or world languages. This means acknowledging that foreign language proficiency assessments implemented and designed by testing companies are not necessarily the best way to evaluate whether a person has enough fluency and capabilities in a Native language. It means amending or creating statutes to allow for potential Native language teachers the ability to gain state-recognized teaching credentials. It means ceding some state control.

States should defer to tribal governments. Since tribal groups have sovereignty and are recognized as separate entities who are best situated to meet the needs of their community, how is it that language instruction is seen as outside of that boundary between state and tribe? It is important that, at the very least, states do not misconstrue Native languages as foreign, that they do not require proficiency tests that are created and written for foreign language teachers, and instead turn to the tribal groups who can more properly determine whether or not a teacher is ready to read, write, speak, and listen in their Native language. Let the tribes have control over who is or is not a speaker of their language, about who is best qualified to impart their knowledge of their language and culture to their people. Tribes do know best.

States need to acknowledge NALA and either create or amend their existing teacher statutes so that they are aligned with the encouragement that NALA provides regarding allowing for teacher certification exceptions. States could mirror their statutes after those found in Montana, Oklahoma, or Washington to start, or look to California and others where there might not be as strong of a release of power and control but still reflect a recognition of the issue. However, ultimately, the best response is to have full power rest with the tribes. At the very least, returning power and control to the tribes themselves would ensure confirmation of whether or not someone knows the language (and inherent culture) of the Native language under consideration. At best, ceding power would return the control back from where it never should have been taken, and matching the purpose of NALA in the first place: to publicly recognize both the harms the United States did to Native communities, and the work required to support Native communities in ensuring that the languages and cultures of the Native People will survive, even if that means getting out of the way.

Associate Professor, State University of New York at Fredonia. J.D., 2022, University at Buffalo School of Law.