SARA SCHMASOW, Plаintiff 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
March 16, 1999
1999 MT 49; 56 St. Rep. 198; 293 Mont. 382; 978 P.2d 304.
Decided March 16, 1999.
For Respondents: Robert L. Sterup; Dorsey & Whitney, LLP; Billings.
JUSTICE 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 anothеr 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 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 whеther 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,
¶4 Pursuant to Title V of Pub. L. No. 94-437, the Indian Health Care Improvement Act (IHCIA), now set forth at
¶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
¶6 At issue in this case is the Indian employment preference provision of the Indian Self-Determination Act found at
¶7 In accordance with this statute and the regulation found at
¶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 respec-
¶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 corrеspondence 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 thе 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 whethеr the court erred.
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 beсause of their status as Indians.” See also
¶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
¶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
¶17 Although the District Court‘s analysis is persuasive, we conclude it is not technically correct. By relying on the definition of urban Indian, the District Court simply established that Shield, as an individual member of the Littlе Shell Tribe, is eligible for federal Indian health care benefits. To satisfy the definitions of Indian and Indian tribe in the Indian employment preference provision, however, one must establish that the Little Shell Chippewa Tribe, itself, is eligible for the health care benefits. The language of the Indian employment preference provision requires there to be an “organized group or community [of Indians] ... which is recognizеd as eligible for the special programs and services provided by the United States.” Thus, the individual Indian‘s status is not controlling.
¶18 In the final analysis, we conclude that the District Court reached the proper result, however. Under
¶19 Under this statutory and regulatory framework, we conclude that Shield was an Indian entitled to the Indian hiring preference. NAC receives federal funding under Title V of the IHCIA to provide health care services to a targeted group, or community, of Indians in Great Falls, including members of the Little Shell Chippewa Tribe. The definition of Indian tribe for employment preference purposes includes a “tribe, pueblo, band, nation, or other organized group or community [of Indians], 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.”
¶20 Any other interpretation of these statutes would be contrary to the very rationale behind the IHCIA and the Indian Self-Determination Act. By enacting Title V of the IHCIA, Congress‘s intention was to provide federаl benefits to non-reservation and non-federally recognized Indian communities. Through the Indian Self-Determination Act, an Indian employment preference was incorporated into Title V grants to Indian communities. The United States Supreme Court has stated that a statutory Indian employment preference is directed to increase participation by the governed, similar in kind to a locally elected official. See Morton v. Mancari (1974), 417 U.S. 535, 554, 94 S. Ct. 2474, 2484, 41 L. Ed. 2d 290, 302. An Indian employment preference enables the federal government, and its contractors, to draw more heavily from the recipient group when staffing
¶21 Furthermore, we are not persuaded by Schmasow‘s argument that only members of federally recognized tribes listed under
¶22 Thus, we affirm the District Court‘s grant of summary judgment in favor of NAC. Accordingly, we need not consider аny of the separately stated issues that the parties included in their briefs.
¶23 We affirm the District Court.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT, LEAPHART and TRIEWEILER concur.
JUSTICE GRAY, dissenting.
¶24 I concur in part in the Court‘s opinion, but respectfully dissent from the portion of that opinion which holds that the District Court reached the right result, although for the wrong reason, in granting summary judgment to the Native American Center (NAC). More specifically, I agree with the Court that the trial court erred in concluding that Shield‘s Indian status as an “urban Indian” entitled him to the Indian employment preference. I disagree that this case—which is before us on a limited summary judgment record premised on the “urban Indian” analysis—can be properly resolved on an alternative theory.
¶25 There is no question but that the Court states our correct standard in reviewing a trial court‘s summary judgment ruling. I also agree that, under certain circumstances, we can affirm a trial court‘s decision, if correct, regardless of its reasons. The cases cited for the “right result, wrong reason” approach here, however, do not support the Court‘s reliance on an alternative legal theory not argued in the District Court or this Court and for which no adequate record exists by which we can—or the District Court could have, given the state of the record and the basis for summary judgment argued there—determine that summary judgment in the NAC‘s favor is appropriate here.
¶26 Norman was before us after a bench trial by the district court and the entry of extensive findings on the evidence presented. Determining that the findings were not clearly erroneous, we affirmed the district court‘s application of the law to those facts. Norman, 258 Mont. at 30-31, 852 P.2d at 535-36. Unlike Norman, we have no findings before us based on evidence relating to the alternative legal theory the Court applies, simply because no trial was held; in addition, the record before us does not contain affidavits or other evidence in support of—and opposition to—the legal theory never argued in the
¶27 Indeed, our аnalysis of a district court‘s improper reliance on an issue not raised or argued in the summary judgment context in Kenyon v. Stillwater County (1992), 254 Mont. 142, 835 P.2d 742, is applicable to—and preclusive of—the Court‘s approach here. In Kenyon, we held a trial court in error for granting summary judgment on an issue not raised and argued, determining that the court was bound by the issues presented and that, “[b]y granting summary judgment on the basis of an issue not before it, the court effectively denied [the opposing party] notice and an opportunity to be heard....” Kenyon, 254 Mont. at 149, 835 P.2d at 746-47. The same reasoning applies to this Court‘s actions here which, in addition, are in derogation of fundamental summary judgment principles relating to the moving party being required—and strictly—to establish both the absence of genuine issues of material fact and entitlement to judgment as a matter of law. In this case, the fact is that—since the record before us is so limited—it cannot be determined that no genuine issue of material fact exists relating to whether either the Little Shell Chippewa Tribe or the assemblage of urban Indians living in Great Falls is an “urban Indian organization” or an “organized Indian community” for purposes of applying the statutes referenced by the Court and, therefore, we cannot properly determine that the NAC was entitled to judgment as а matter of law. For these reasons, I would reverse the District Court‘s grant of summary judgment in NAC‘s favor and remand for such proceedings as the parties might determine were appropriate in light of that reversal; such proceedings might well include, of course, another motion for summary judgment by the NAC on the alternative legal theory relied on by this Court and the opportunity for both parties to present relevant evidence in support of—and opposition to—any such motion.
¶29 I would reverse the District Court‘s grant of summary judgment to the NAC and remand for further proceedings and I respectfully dissent from the Court‘s failure to do so.
JUSTICE NELSON joins in the foregoing dissenting Opinion of JUSTICE GRAY.