Schmasow v. Native American Center, No. 97-555

• Docket Nº: No. 97-555
• Citation: 293 Mont. 382, 978 P.2d 304
• Case Date: March 16, 1999
• Court: United States State Supreme Court of Montana

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978 P.2d 304 1999 MT 49 Sara SCHMASOW, Plaintiff and Appellant,
v.
NATIVE AMERICAN CENTER, Pat Maki,Grace Fairhurst, Don Fish,
and Duke Martel, also John Does 1 through 10,
Defendants and Respondents. No. 97-555. Supreme Court of Montana. Submitted on Briefs Oct. 15, 1998.
Decided March 16, 1999.

Cameron Ferguson; Hartelius, Ferguson, Baker & Kazda; Great Falls, Montana, for Appellant.

Robert L. Sterup; Dorsey & Whitney, LLP; Billings, Montana, for Respondents.

Justice JIM REGNIER delivered the opinion of the Court.

¶1 The appellant, Sara Schmasow, brought an action against the defendants, the Native American Center, Inc. (NAC) and others, claiming that NAC should have selected her for the position of executive director pursuant to an Indian employment preference provision in NAC's contract with the Indian Health Service. NAC hired another Indian, James Parker Shield, instead. Schmasow argued in the Eighth Judicial District Court, Cascade County, that Shield did not qualify for the employment preference since he was not a member of a federally recognized Indian tribe. Schmasow appeals the District Court's conclusion that Shield

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was eligible for the employment preference and its grant of summary judgment in NAC's favor. We affirm the District Court.

¶2 The dispositive issue in this case is whether Shield, who is not a member of a federally recognized Indian tribe, qualifies for an Indian employment preference pursuant to NAC's contract with the Indian Health Service.

FACTUAL BACKGROUND

¶3 The Native American Center (NAC) is a nonprofit urban Indian organization that offers health care services to urban Indians in Great Falls, Montana. NAC's board of directors are duly elected by the urban Indian community which it serves, the majority of whom are members of the Little Shell Chippewa Tribe. The Little Shells have been without a reservation since the 1890s. Since the early 1990s, nearly 3700 enrolled members of the Little Shell Chippewa Tribe have lived in the Great Falls area.

¶4 Pursuant to Title V of Pub.L. No. 94-437, the Indian Health Care Improvement Act (IHCIA), now set forth at 25 U.S.C. §§ 1651-1660d, NAC receives its funding through a contract with the Bureau of Indian Affairs and the Indian Health Service (IHS). The contract is administered by the Billings Area Indian Health Service office (BIHS). At issue in this case is a contract between NAC and IHS that went into effect January 1, 1994.

¶5 In 1976, Congress passed Title V of the IHCIA to authorize IHS to enter into contracts to provide health care services to growing numbers of urban Indians who do not receive federal Indian health care assistance on reservations. See 25 U.S.C. § 1651-1652; see also 3 U.S.C.C.A.N. at 2750(1976). Congress specifically identified Great Falls as an urban area with a potential need for such services. See 3 U.S.C.C.A.N. at 2754 (1976). Through Title V, Congress incorporated Indian self-determination and local control by allowing urban Indian organizations to provide the necessary health care services. See 25 U.S.C. § 1652. Congress also required that contracts entered into with urban Indian organizations be made in accordance with other federal contracting laws and regulations, including the Indian Self-Determination and Education Assistance Act ("Indian Self-Determination Act"). See 25 U.S.C. § 1656(a).

¶6 At issue in this case is the Indian employment preference provision of the Indian Self-Determination Act found at 25 U.S.C. § 450e(b). Section 450e(b) requires that an Indian be given an employment preference for any position filled under "any contracts ... or grants to Indian organizations or for the benefit of Indians."

¶7 In accordance with this statute and the regulation found at 48 C.F.R. § 352.270-2, NAC's contract with IHS contains an Indian employment preference provision. The provision provides that "[t]he Contractor agrees to give preference in employment opportunities under the contract to Indians who can perform required work, regardless of age (subject to existing laws and regulations), sex, religion or tribal affiliation." This provision was in effect when NAC hired James Parker Shield as its executive director.

¶8 The NAC reviewed four applications for the executive director position and ranked them. After the top scoring applicant withdrew from the application process, the board voted between the second-and third-ranked applicants, who were Shield and Schmasow respectively. There was a tie between the board members' votes, so the board chairperson voted and chose Shield for the position.

¶9 Schmasow contends that by not hiring her the NAC board violated the Indian employment preference provision in its contract with IHS because she met at least the minimal requirements for the job and, unlike Shield, she qualified for the Indian employment preference. Schmasow is an enrolled member of the federally recognized Chippewa-Cree Tribe. Shield is a member of the Little Shell Chippewa Tribe, which is recognized by the State of Montana but does not share the federally recognized designation. On this basis, Schmasow contends that she should have been given preference over Shield in the hiring process.

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¶10 Originally, Schmasow complained to the BIHS. In turn, the BIHS contacted the NAC board. After correspondence between the BIHS and NAC, the BIHS suggested that it might withdraw NAC's funding for the executive director position unless NAC provided evidence that Shield was a member of a federally recognized tribe. Faced with possible loss of funding, the NAC board eventually discontinued Shield's employment as executive director.

¶11 On May 17, 1996, Schmasow filed an action against NAC in Montana's Eighth Judicial District Court, Cascade County, seeking damages for the loss of income she would have received had she been offered the executive director position. Both Schmasow and NAC moved for summary judgment on this issue. On September 5, 1997, the District Court granted summary judgment in favor of NAC and against Schmasow.

STANDARD OF REVIEW

¶12 On appeal from a summary judgment, this Court reviews a case de novo based on the same criteria applied by the district court. See Stutzman v. Safeco Insurance Co. (1997), 284 Mont. 372, 376, 945 P.2d 32, 34 (citing Treichel v. State Farm Mut. Auto. Ins. Co. (1997), 280 Mont. 443, 446, 930 P.2d 661, 663). Thus,

[t]he movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove by more than mere denial and speculation that a genuine issue does exist. Having determined that genuine issues of material fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. [This Court] reviews the legal determination made by a district court as to whether the court erred.

Stutzman, 284 Mont. at 376, 945 P.2d at 34 (quoting Bruner v. Yellowstone County (1995), 272 Mont. 261, 264-65, 900 P.2d 901, 903). Our review of a summary judgment is much broader than other appeals. See District No. 55 v. Musselshell County (1990), 245 Mont. 525, 527, 802 P.2d 1252, 1253 (quoting McCain v. Batson (1988), 233 Mont. 288, 298, 760 P.2d 725, 731). If we agree with the conclusions of the district court, we can affirm the district court's decision, if correct, regardless of its reasons. See Norman v. City of Whitefish (1993), 258 Mont. 26, 30, 852 P.2d 533, 535; Musselshell, 245 Mont. at 527, 802 P.2d at 1253; Jerome v. Pardis (1989), 240 Mont. 187, 192, 783 P.2d 919, 922.

DISCUSSION

¶13 Does Shield, who is not a member of a federally recognized Indian tribe, qualify for an Indian employment preference pursuant to NAC's contract with the Indian Health Service?

¶14 In the Indian employment preference provision of NAC's contract with IHS, Indian is defined pursuant to the Indian Self-Determination Act as "a person who is a member of an Indian Tribe." Indian tribe is further defined as "a Tribe, pueblo, band, nation, or other organized group or community, including any Alaska Native village, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians." See also 25 U.S.C. § 450b(d)-(e); 48 C.F.R....