Schmasow v. Native American Center, 97-555

• Decision Date: 16 March 1999
• Docket Number: No. 97-555,97-555
• Citation: 293 Mont. 382,978 P.2d 304
• Parties: 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.
• Court: Montana Supreme Court

Page 304

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 ¶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.

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

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.

¶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. § 352.270-2(e)(1)-(2). The parties disagree over whether Shield is an Indian based on this definition.

¶15 Schmasow argues on appeal that Shield is not an Indian because he is not a member of a federally recognized Indian tribe. Federally recognized tribes are tribes which the Secretary of Interior lists pursuant to 25 U.S.C. § 479a-1, with which the federal government deals on a government-to-government basis in recognition of their tribal sovereignty. See 25 U.S.C. § 479a notes. Schmasow contends that only federally recognized Indian tribes generally are eligible for special programs and services provided by the United States. Thus, only members of these tribes can satisfy the definition of Indian under the Indian employment preference provision.

¶16 NAC argues that the District Court was correct when it found that the Little Shell Chippewa Tribe is eligible to receive the benefits of federal Indian programs and services, even though it is not a federally recognized Indian tribe. NAC contends that through the health care funding it receives from IHS, the Little Shell Chippewa Tribe is an eligible tribe and, therefore, Shield, as a member of the Little Shells, qualifies for the Indian employment preference. Citing the language of Title V of the IHCIA, at 25 U.S.C. § 1656(f), which states that "[u]rban Indians, as defined in section 1603(f) of this title, shall be eligible for health care or referral services," NAC reasons that so long as the Little Shells are urban Indians, they are eligible for special federal programs and services. An urban Indian is an individual who resides in an urban center and who meets one or more of four listed...