5 NICS App. 137, MAY v. NIHA (November 1999)

IN THE NOOKSACK TRIBAL COURT OF APPEALS

NOOKSACK INDIAN RESERVATION

DEMING, WASHINGTON

Diane May, Appellant/Plaintiff,

v.

Nooksack Indian Housing Authority, Appellee/Defendant.

No. NOO-C-5/98-006 (November 1, 1999)

SUMMARY

Appellant appeals a trial court decision dismissing her complaint on a Motion for Summary Judgment made by Appellee. Appellant argues that her at-will status was modified when the Nooksack Tribe adopted its Personnel Policies and Procedures (Personnel Policies) which created ambiguities in her at-will status. There is no ambiguity between the Indian Preference policy and the Involuntary Termination provision found in the Personnel Policies. The Indian Preference Policy of the Nooksack Tribe is clearly stated to promote the advancement of tribal members. One way to do so is to request a non-tribal member to resign his position in favor of a tribal member. Appellant’s involuntary termination of employment was for a legitimate business reason and that the Nooksack Tribe complied with its Personnel Policies in its termination of Appellant’s employment. Affirmed.

FULL TEXT

Before:            Charles R. Hostnik, Chief Justice; Rose E. Purser, Justice; Lorintha Warwick, Justice.

I. FACTUAL BACKGROUND

By letter dated May 8, 1998, Diane May was terminated from her position as Office Manager/Communication Systems Manager for the Nooksack Indian Tribe. The tribal council made the decision to terminate her because an enrolled Nooksack tribal member who formerly held the position successfully petitioned the tribal council for reinstatement. The termination letter went on to state:

Please know that this action is not related in any way to your work performance. I will be happy to provide a letter of recommendation and be a reference for any prospective employers. I appreciate your service to the tribal organization, and wish you well in future pursuits.

Letter of May 8, 1998, from Andy Fernando to Diane May, attached as Exhibit A to Appellant’s

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Opening Brief.

Diane May filed suit in the Nooksack Tribal Court on May 28, 1998, alleging wrongful termination. That original complaint was withdrawn and a subsequent Complaint for Damages was filed on September 23, 1998. The tribe filed an Answer on October 27th and the parties then brought cross motions for summary judgment. A trial court decision dated April 16, 1999, granted the tribe’s motion, denied the Appellant’s motion, and dismissed the action. This appeal followed.

II. JURISDICTION

A. Territorial and Personal Jurisdiction

The Nooksack Tribal Court has territorial jurisdiction over this action pursuant to Nooksack Tribal Code (N.T.C.) §10.01.020(a), as all alleged events took place within the exterior boundaries of the Nooksack Indian Reservation.

This Court has personal jurisdiction over both parties under N.T.C. §10.01.020(c). Appellant Diane May voluntarily elected to file this action in tribal court, thereby consenting to the jurisdiction of this Court. The Defendant is the tribe itself, which is deemed to reside within the exterior boundaries of the Nooksack Reservation. In addition, the events giving rise to this action occurred within the Nooksack Reservation.

B. Tribal Court Subject Matter Jurisdiction

The Nooksack Tribal Court is a court of limited jurisdiction.    N.T.C. §§ 10.00.030, 10.01.020(b)(4). The Court of Appeals has subject matter jurisdiction to hear appeals from final orders of the trial court. See N.T.C. §80.03.010.

III. SCOPE OF REVIEW

In this Court, the scope of appellate review is limited to the record of the proceedings before the trial court. Appellate review is also limited by the errors of law and procedure raised by the Appellant in her written brief, and the oral argument of both parties presented at the hearing before the Court of Appeals. See N.T.C. §80.03.030.

The Court does have discretion to permit additional evidence in limited circumstances under Nooksack Tribal Code § 80.08.070. However, in this appeal the parties have not requested that any additional evidence be admitted. There is no dispute as to the facts before this Court.

The dispute between the parties concerns questions of law. We are therefore in the same position as the trial court when she ruled on the Motions for Summary Judgment. This is therefore a de novo review of the trial court’s decision.

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IV. ISSUES PRESENTED

When Diane May was originally hired by the Nooksack Indian Tribe, she did not execute an employment contract. Therefore, there is no express contract of employment for this Court to review.

At time of Ms. May’s hiring, she was an at-will employee. Either party could terminate the employment relationship without any reason. In December of 1997, while Ms. May was a Nooksack tribal employee, the tribe adopted Personnel Policies and Procedures (hereinafter “Personnel Policies”). Ms. May argues that her at-will status has been modified by the tribe’s adoption of those Personnel Policies.

The issue presented by this appeal is whether adoption of the Tribal Personnel Policies and Procedures has modified the at-will employment status of tribal employees by imposing rights and responsibilities upon both the tribe and its employees. If so, then this Court is also faced with the issue of whether Ms. May’s termination was handled in accordance with the terms of those Personnel Policies and Procedures.

V. DISCUSSION

A. Legal Effect of Adoption of Personnel Policies

The first issue is a difficult one to answer. The Personnel Policies themselves declare that they are to be used as a “reference guide and summary of practices, methods, and benefits” but do not create any contract of employment. Personnel Policies, SOP #P1, §1.0. It is therefore unclear to what extent both the tribe and its employees can rely on the specific policies and procedures set forth in detail in that document.

Ms. May argues that adoption of the Personnel Policies created an atmosphere where tribal employees justifiably relied on the expressed policies, and justifiably expected that the tribe would abide by those same policies. Appellant’s Opening Brief, pp. 2, 3. Ms. May’s argument strikes at the heart of the issue of whether Nooksack’s Personnel Policies are legally enforceable. Personnel Policies and Procedures that do not equally define the rights and responsibilities of both parties risk being viewed as illusory in nature.

However, we find that it is not necessary to rule on this issue to reach a decision in this case. We recognize this presents a difficult situation for both the tribe and its employees, but we leave it to a future case to more fully explore that issue.

B. Compliance with Personnel Policies

Assuming, without deciding, that the Personnel Policies do modify the at-will status of Ms. May’s employment with the Nooksack Tribe, we need to review the specific policies at issue in this

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case, and determine whether those policies were followed.

Ms. May argues that if her at-will employment status was modified by the Personnel Policies, an ambiguity exists in the Policies themselves. Since the Policies were drafted by the tribe, Ms. May relies upon the rule of contract interpretation that ambiguities in a contract should be construed against the drafter. Tulalip Casino v. Hood, 4 NICS App. 123, 127 (Tulalip 1996). The ambiguity that Ms. May points to begins with a portion of the Indian Preference policy, which states:

In order to provide equal employment and advancement opportunity to all individuals, employment decisions at Nooksack Indian Tribe will be based on merit, qualifications, and abilities. Nooksack Tribe does not discriminate in employment opportunities or practices on the basis of religion, sex, age, disability, or any other characteristics protected by law. The Nooksack Tribe does promote advancement of its tribal members. As Nooksack tribal members demonstrate competency, desire and ability, non-Indian tribal employees may be asked to resign their positions to such qualified Nooksack tribal members. With all due consideration to the non- Nooksack tribal employees, care shall be taken to give at least one (1) month written notice of such action to be taken by the tribe. The tribe may exercise the prerogative of keeping displaced non-Nooksack tribal employees by transfer to another position.

Personnel Policies, SOP #P1, §3.1.

Ms. May contrasts this with the involuntary termination provision, which states:

The tribe may layoff or terminate an employee for business or economic reasons, reductions in force, reorganizations, or lack of available funds. The tribe shall strive to give employees at least two weeks written notice of intention to layoff or terminate, except in extraordinary circumstances, layoffs or termination for lack of available funds may occur without notice.

Personnel Policies, SOP #P8, §2.1a.

Ms. May points to the involuntary termination provision cited above and indicates that there is no specific provision for involuntarily terminating a non-member employee in order to place a tribal member into that position. Ms. May is correct. That specific language is not included in the involuntary termination provision.

The facts in this case do not support a termination for economic reasons, a reduction in force, or a lack of available funds. There is no evidence that the position was being reorganized. Therefore, if this was an involuntary termination carried out under the section quoted above, the termination must be viewed as a termination of an employee for business reasons only.

Ms. May acknowledges that under the Indian Preference provision, as a non-member

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employee, she could be asked to resign her position in order to place a tribal member into her job. However, she contends the policy affords her the choice not to resign.

We believe this is a strained reading of the Indian Preference provision. The clear intent of §3.1 of SOP #P1, is to identify the stated policy and business practice of the Nooksack Indian Tribe to promote the advancement of tribal members. We therefore find no inconsistency between the Indian Preference policy set forth in SOP #P1, § 3.1, and involuntary termination for business reasons under SOP #P8, §2.1a. We agree with the trial judge when she indicated:

The employment of tribal members is a legitimate business goal, that goes to the heart of a tribe’s well being. A strong tribal enterprise that employs as many tribal members as possible is on its way to becoming self-sustaining and is a recognized goal of all tribes and one explicitly stated by the Nooksack Tribe.

Conclusions and Order on Summary Judgment, dated April 16, 1999, p. 5 (footnote omitted). The United States Supreme Court has characterized Indian preference as “ . . . an employment criterion reasonably designated to further the cause of Indian self-government . . . .” Morton v. Mancari, 417 U.S. 535, 554, 41 L. Ed. 2d 290, 94 S. Ct. 2474 (1974).

We find that the Indian Preference policy of the Nooksack Tribe is clearly stated. Personnel Policies, SOP #P1, §3.1. The clear statement of policy is to promote the advancement of the tribe’s members. One of the ways in which such advancement may occur is by asking a non-Nooksack tribal member to resign so that a tribal member can take that position. The policy directly addresses that possibility. The tribe has attempted to minimized the impact on the non-Nooksack tribal member who is asked to resign by either transferring that employee to another position, or by giving the employee at least one month written notice prior to termination. As pointed out by the trial court judge, these are permissible actions. We therefore do not find that any ambiguity exists in the Personnel Policies, and find that the Nooksack Tribe complied with the Personnel Policies in this case.

In light of this decision, it is not necessary to reach the other issues presented in this case. For the foregoing reasons, the opinion of the trial court is affirmed.