8 NICS App. 85, PUYALLUP TRIBE v. VanEVERY (December 2008)

IN THE PUYALLUP TRIBAL COURT OF APPEALS

PUYALLUP INDIAN RESERVATION

TACOMA, WASHINGTON

Puyallup Tribe, Plaintiff and Appellant,

v.

Jaroe VanEvery, Defendant and Appellee.

Nos. PUY-FH-06-908; 01-07-020 (December 2, 2008)

SYLLABUS^*

Trial court dismissed Tribe’s civil complaints against tribal shell fisher who refused to comply with drug testing procedures. Court of Appeals holds that trial court erred in applying provisions of the Tribe’s Administrative Procedures Act to an ordinance and regulations to which the Act does not apply. Trial court order reversed and remanded for further proceedings.

Before:            Michelle Demmert, Chief Judge; Gregory Silverman, Judge; Ron Whitener, Judge.

OPINION

The instant appeal from the Trial Court of the Puyallup Tribe of Indians presents the following issue: does the Puyallup Administrative Procedure Act govern the adoption, modification or abrogation of procedures under which a Treatment Facility administers the urine tests mandated by section 12.05.1122(6)(c) of the Revised Puyallup Tribal Shellfish Code? For the reasons given hereinbelow, we answer this question in the negative and reverse the decision of the Trial Court.

I.

Appellee is an enrolled member of the Puyallup Tribe of Indians. He has been a Tribal shellfish diver since March 28th, 1998. Shellfish diving by Tribal members is regulated by the Revised Puyallup Tribal Shellfish Code, Puyallup Tribal Code, Title 12, Chapter 5 (hereinafter the “Shellfish Code”). The Shellfish Code was enacted by the Tribal Council in 2002 and subsequently amended in 2006 and 2008. Both the original enactment and the amendments of the revised code were enacted pursuant to and comply with the Puyallup Code Adoption,

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Revision, and Distribution Ordinance, Puyallup Tribal Code, Title 2, Chapter 4. Under section 12.05.1122(6) of the Shellfish Code, a Tribal shellfish diver must undergo a urine test quarterly at a designated treatment facility. On January 18th, 2006, the Puyallup Tribal Council designated the Port Clinic as the sole treatment facility under this section.¹

On August 31st, 2006, the last day of the third quarter, Appellee went to the Port Clinic to undergo his quarterly urine test. At that time, Appellee was informed that the procedure under which the test is administered had changed since his last test and that the new procedure for collecting urine from shellfish divers required direct observation of the shellfish diver urinating. Appellee found this new procedure humiliating² and was unable to pass urine when he attempted to do so.³ At that time, the registered nurse administering the urine test suggested that the Appellee drink some water and make a second attempt in a few minutes.⁴ Appellee refused and left the Port Clinic without taking the test.⁵ The Port Clinic informed the Puyallup Tribe that Appellee had failed to undergo the required quarterly urine test for the third quarter of 2006, and on September 19th, 2006, the Puyallup Tribe filed a civil complaint against the Appellee for Failure or Refusal to Submit Timely to a Urinalysis. Appellee also failed to undergo the required quarterly urine test for the fourth quarter of 2006. This failure resulted in the Puyallup Tribe filing a second civil complaint against the Appellee on January 9th, 2007 for Failure or Refusal to Submit Timely to a Urinalysis.

In the proceedings below, Appellee moved to dismiss these complaints, arguing that the change in the procedures under which the Port Clinic administers the required urine test had been improper. Ultimately, the lower court granted Appellee’s motion, holding that the change in the Port Clinic procedures violated the Puyallup Administrative Procedure Act. This appeal followed.

The standard of review for appeals from the Puyallup Tribal Court is set forth at PTC § 4.03.590, where it states the decision of trial court will be reversed, modified, or remanded only:

8 NICS App. 85, PUYALLUP TRIBE v. VanEVERY (December 2008) p. 87

For the reasons discussed below, we hold that the trial court erred in the interpretation and application of the law, and we therefore reverse its decision and remand this matter for further proceedings not inconsistent with this Opinion.

II.

In granting Appellee’s Motion to Dismiss, the lower court — apparently relying on Puyallup Tribe of Indians v. Brown⁶ — held that “[t]he required direct observation of the taking of urine specimens is a ‘rule’ as defined by the Puyallup Tribal Administrative Procedure Act, §1.2(2).”⁷ The lower court then found that “the Port Clinic failed in its duty to the [Appellee] to provide notice of the change in procedure.” The lower court appears to be claiming that the Port Clinic had a statutory duty under the Puyallup Administrative Procedure Act and that it violated that duty. Presumably, the violation was the Port Clinic’s failure to comply with the requirements of the Puyallup Administrative Procedure Act when it changed its procedure under which it administers the urine test mandated by section 12.05.1122(6)(c) of the Shellfish Code. For the reasons explained below, we believe that this argument is unsound.

In section 1.2(2), the Puyallup Administrative Procedure Act defines “rule” to mean “any order, directive or regulation of general applicability approved by the Tribal Council ….” If the words “approved by the Tribal Council” in this section are understood to mean “resolved, enacted or adopted by the Tribal Council”, then it is clear that the procedures of the Port Clinic are not “approved by the Tribal Council” and, a fortiori, that the Port Clinic procedures are not rules within the meaning of the Puyallup Administrative Procedure Act. Accordingly, the Puyallup Administrative Procedure Act does not apply to the Port Clinic procedures directly.

Perhaps, however, the lower court was interpreting the words “approved by the Tribal Council” as including any procedures incorporated by reference into resolutions duly adopted by the Tribal Council. Under this interpretation, the lower court might be claiming that the language of section 12.05.1122(6)(c)(iv) of the Shellfish Code incorporates the Port Clinic procedures into the Shellfish Code and is, therefore, subject to the Puyallup Administrative Procedure Act. After all, the Tribal Council did adopt the Shellfish Code through a resolution; section 12.05.1122(6)(c)(iv) of that Code does state that “[a]ll testing under this Subsection (c) shall be done at the location and under the procedures of the designated … Treatment Facility”; and the Port Clinic is in fact a “designated Treatment Facility.” The problem with this argument, however, is that even if, arguendo, we assume that the Port Clinic procedures are incorporated

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by reference into the Shellfish Code, this still does not subject those procedures to the Puyallup Administrative Procedure Act because the Puyallup Administrative Procedure Act does not apply to the Shellfish Code.

Section 1.27 of the Puyallup Administrative Procedure Act states that “[t]he Puyallup Administrative Procedure Act shall be applicable to those Titles to which the Puyallup Tribal Council shall make the Act applicable through formal resolution.” On February 28th, 2002, the Puyallup Tribal Council adopted Resolution No. 280202 enacting the Shellfish Code. The Shellfish Code was expressly enacted pursuant to Title 2, Chapter 4, Section 040 of the Code Adoption, Revision and Distribution Ordinance. See Resolution 280208, p. 16. Reading this resolution confirms that the Tribal Council did not make the Puyallup Administrative Procedure Act applicable to the Shellfish Code. Nor did the Tribal Council make the Puyallup Administrative Procedure Act applicable to the Shellfish Code when it adopted Resolution No. 180106A adding, inter alia, section 12.05.1122(6) to the Shellfish Code. — a resolution that was also expressly enacted pursuant to Title 2, Chapter 4, Section 040 of the Code Adoption, Revision and Distribution Ordinance. See Resolution 180106A, p. 10. Finally, in case there was any doubt, on February 28th, 2008, the Tribal Council adopted Resolution No. 280208 adding section 12.05.2012 to the Shellfish Code. This section expressly states that “[t]he Puyallup Tribal Council has never adopted a resolution making the Administrative Procedure Act applicable to the Shellfish Code. Therefore, the Administrative Procedure Act has never been applicable to the Shellfish Code.” As if the purpose of this amendment were not already clear, a legislative comment accompanying this new section explains that “[t]his section is added to remove any possible confusion about the inapplicability of the Administrative Procedure Act to the Shellfish Code.” In light of the foregoing, the conclusion is clear: the Puyallup Administrative Procedure Act does not apply to the Shellfish Code. Accordingly, the Puyallup Administrative Procedure Act does not apply to the Port Clinic procedures indirectly through the latter’s incorporation into the Revised Puyallup Tribal Shellfish Code.

In sum, whether we consider the Port Clinic procedure at issue in the present case directly or as part of the Revised Puyallup Tribal Shellfish Code, the Puyallup Administrative Procedure Act does not apply to it, and the lower court erred in holding that it does.

III.

In the proceedings below, both the Tribal Court and the Appellee suggested or implied that the Port Clinic procedure requiring direct observation of a Tribal shellfish diver urinating when collecting his or her urine for the mandatory quarterly urine test violates the Tribal shellfish diver’s constitutional right of privacy. Although the Tribal Court did not rely on this claim as the basis for granting Appellee’s Motion to Dismiss, we believe it would be helpful to offer some guidance on this issue.

8 NICS App. 85, PUYALLUP TRIBE v. VanEVERY (December 2008) p. 89

Under the United State Constitution, the right to privacy is an unenumerated individual civil right anchored in the Due Process Clause of the Fifth and Fourteenth Amendments as well as the Unreasonable Search and Seizures Clause of the Fourth Amendment. None of these amendments protect an individual Indian from the actions of a tribal government. The Due Process Clause of the Fifth Amendment protects an individual from unlawful acts of the federal government; the Due Process Clause of the Fourteenth Amendment protects an individual from unlawful acts of a state government; and the Unreasonable Search and Seizures Clause of the Fifth Amendment protects an individual from unlawful acts of the federal government directly and from unlawful acts of a state government indirectly under the Incorporation Doctrine of the Fourteenth Amendment. Accordingly, the United State Constitution does not confer a right of privacy on an enrolled member of a federally recognized Indian tribe against the tribal government of the tribe in which he or she is enrolled. A tribal member has no federal constitutional right of privacy against his or her tribal government. Nor is the constitutional right of privacy unusual in this regard. None of the rights articulated in the Bill of Rights or the Fourteenth Amendment protect a tribal member from actions of a tribal government that, if performed by the federal or state government, would be unconstitutional.

To address this gap in the law, the United State Congress enacted the Indian Civil Rights Act of 1968.⁸ This Act grants Indians federal statutory rights against a tribal government that are similar to the federal constitutional rights that they have against the federal and state governments under the Bill of Rights and the Fourteenth Amendment. Among the various statutory rights granted by the Indian Civil Rights Act, two are particularly relevant to the present case. The Indian Civil Rights Act states, in relevant part, that “[n]o Indian tribe in exercising powers of self-government shall . . . (2) violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, . . . ; [or] (8) . . . deprive any person of liberty or property without due process of law”.⁹ The language of these statutory rights parallel the constitutional language in which the United States Supreme Court has anchored the constitutional right of privacy against the federal and state governments. Presumably, it is to these statutory rights conferred by the Indian Civil Rights Act that the Tribal Court and the Appellee intended to refer when they opined that the Port Clinic procedure for collecting urine violated the Tribal shellfish diver’s constitutional right of privacy.

To examine this issue, we look to federal court interpretation of constitutional rights. We are not bound by these decisions, however as the Navajo Supreme Court noted: U.S. Constitutional “protections are a product of moral principles, and our own morality and tribal customs frame such principles in the Navajo way.”¹⁰ Assuming, for the sake of argument, that the statutory rights conferred by the Indian Civil Rights Act are equivalent in all respects to the

8 NICS App. 85, PUYALLUP TRIBE v. VanEVERY (December 2008) p. 90

constitutional rights that their language tracks,¹¹ it is reasonable to further assume that the legal analysis developed by the United States Supreme Court for determining whether a particular federal or state government test procedure violates a person’s constitutional right to privacy can also be used to determine whether a particular tribal government test procedure violates a tribal member’s statutory right to privacy under the Indian Civil Rights Act. Thus, to evaluate the claim that the Port Clinic’s procedure for collecting urine violates a Tribal member’s statutory right to privacy, we may be guided by a decision of the United States Supreme Court, Skinner v. Railway Labor Executives’ Association,¹² in which it considered whether a similar procedure violated the test subject’s constitutional right to privacy.

In Skinner, the Supreme Court considered whether a federal government procedure for collecting urine test samples from railway employees constituted an “unreasonable search and seizure” under the Fourth Amendment to the United States Constitution because it violated the railway employees’ constitutional right to privacy. The Court begins its analysis by noting that “[t]he Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government or those acting at their direction.”¹³ The Court further notes that “[b]ecause it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable, the Federal Courts of Appeals have concluded unanimously, and we agree, that these intrusions must be deemed searches under the Fourth Amendment.”¹⁴ Recognizing that “the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable,” the Court reminds us that “the permissibility of a particular practice ‘is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.’”¹⁵ Continuing its review of Fourth Amendment jurisprudence, the Court notes that “[e]xcept in certain well-defined circumstances, a search or seizure in such a case is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause,” but that “[w]e have recognized exceptions to this [rule] … ‘when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’”¹⁶

The Court then states that “[t]he Government's interest in regulating the conduct of railroad employees to ensure safety, like its supervision of probationers or regulated industries, or its operation of a government office, school, or prison, ‘likewise presents ‘special needs' beyond normal law enforcement that may justify departures from the usual warrant and

8 NICS App. 85, PUYALLUP TRIBE v. VanEVERY (December 2008) p. 91

probable-cause requirements.’”¹⁷ The Court argues that the “governmental interest in ensuring the safety of the traveling public and of the employees themselves plainly justifies prohibiting covered employees from using alcohol or drugs on duty, or while subject to being called for duty. This interest also ‘require[s] and justif[ies] the exercise of supervision to assure that the restrictions are in fact observed.’”¹⁸ Accordingly, the only question that remains is “whether the Government's need to monitor compliance with these restrictions justifies the privacy intrusions at issue absent a warrant or individualized suspicion.”¹⁹

Addressing this remaining question, the Court writes that although

urine tests are not invasive of the body . . . [w]e recognize … that the procedures for collecting the necessary samples, which require employees to perform an excretory function traditionally shielded by great privacy, raise concerns not implicated by blood or breath tests. While we would not characterize these additional privacy concerns as minimal in most contexts, we note that the regulations endeavor to reduce the intrusiveness of the collection process. The regulations do not require that samples be furnished under the direct observation of a monitor, despite the desirability of such a procedure to ensure the integrity of the sample. See 50 Fed.Reg. 31555 (1985). See also Field Manual B-15, D-1. The sample is also collected in a medical environment, by personnel unrelated to the railroad employer, and is thus not unlike similar procedures encountered often in the context of a regular physical examination.

More importantly, the expectations of privacy of covered employees are diminished by reason of their participation in an industry that is regulated pervasively to ensure safety, . . .

. . . Though some of the privacy interests implicated by the toxicological testing at issue reasonably might be viewed as significant in other contexts, logic and history show that a diminished expectation of privacy attaches to information relating to the physical condition of covered employees and to this reasonable means of procuring such information. We conclude, therefore, that the testing procedures . . . pose only limited threats to the justifiable expectations of privacy of covered employees.²⁰

In light of this analysis, the Supreme Court concludes that “the toxicological testing contemplated by the regulations is not an undue infringement on the justifiable expectations of privacy of covered employees,” and that “the Government's compelling interests outweigh privacy concerns.”²¹

8 NICS App. 85, PUYALLUP TRIBE v. VanEVERY (December 2008) p. 92

In our opinion, an analogous argument that the Port Clinic procedure does not violate a Tribal Shellfish diver’s statutory right to privacy can be made on the facts of the present case. Shellfishing is an industry regulated by the Tribe. The Tribal government has an interest in regulating the conduct of shellfishing to ensure safety. The Tribal government’s interest in safe shellfishing includes the safety of the Tribal shellfish divers. The Tribal government’s interest in ensuring the safety of the shellfish divers themselves plainly justifies prohibiting Tribal shellfish divers from using alcohol or drugs, and this interest also requires and justifies the exercise of supervision to assure that the restrictions are in fact observed. Moreover, the urine samples are collected in a medical environment, by personnel unrelated to the diver’s employer, and is thus not unlike similar procedures encountered often in the context of a regular physical examination. Finally, the expectations of privacy of Tribal shellfish divers are diminished by reason of their participation in an industry that is regulated to ensure safety. While the procedures for collecting urine samples in Skinner did not involve direct observation of the employee urinating, we do not believe that this difference would alter the result of the Supreme Court’s analysis. The Supreme Court specifically noted “the desirability of such a procedure to ensure the integrity of the sample.”²² Accordingly, we believe that Port Clinic procedure for collecting urine does not constitute an undue infringement on the justifiable expectations of privacy of the Tribal shellfish divers, and that the Tribal government’s interest in reliable and accurate urine tests for Tribal shellfish divers outweighs their privacy concerns in this context.

In short, even assuming that the statutory rights granted by the Indian Civil Rights Act are equivalent to the analogous constitutional rights contained in the Bill of Rights and the Fourteenth Amendment to the United States Constitution, we do not believe that the Port Clinic procedure requiring direct observation of a Tribal shellfish diver urinating when collecting his or her urine for the mandatory quarterly urine test violates the Tribal shellfish diver’s right of privacy. For the sake of completeness, we note also that the Tribal Court and Appellee can not be interpreted as referring to a separate Tribal constitutional right to privacy because Article VII of the Constitution of the Puyallup Tribe of Indians—the article containing the Tribe’s Bill of Rights—does not recognize such a right.

IV.

In conclusion, the Tribal Court erred when it held that the Puyallup Administrative Procedure Act applies to the Revised Puyallup Tribal Shellfish Code. It does not, and to the extent that existing case law suggests otherwise, it is hereby overruled. As a result of this error, the Tribal Court improperly granted Appellee’s Motion to Dismiss. Accordingly, the Order of the Tribal Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

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The syllabus is not a part of the Court’s Opinion.  The syllabus is a summary of the Opinion prepared by the publishers of this Reporter only for the convenience of the reader.  Therefore, the syllabus should not be cited in whole or part as legal authority.  Only the Opinion, which follows the syllabus, may be cited as legal authority.

Puyallup Tribal Council Resolution No. 180106 (January 18th, 2006)(designating the Port Clinic as the sole treatment facility under section 12.05.1122(6) of the Revised Puyallup Tribal Shellfish Code).

Declaration of Jaroe VanEvery, dated October 15th, 2007.

Progress Notes of Registered Nurse Kurnik, dated August 31st, 2006, Exhibit B to Tribe’s Response to Defendant’s Motion to Dismiss, dated November 2nd, 2007.

Id.

Id. and Declaration of Joroe VanEvery, supra note 2.

No. PUY-FH-09/06-935, slip op. (Puyallup Tribal Ct. May 8th, 2007).

Puyallup Tribe of Indians v. Van Every, No. PUY-FH-06-908 & FH-01-07-020, slip op. at 3 (Puyallup Tribal Ct. January 31st, 2008).

Indian Civil Rights Act, 25 U.S.C. §§ 1301-1303

Id. at § 1302.

Plummer v. Plummer, 17 Indian L. Rep. 6151 (Navajo 1990),

We make this assumption only because it is the assumption most favorable to the Appellee. We reason from this assumption solely “for the sake of the argument”—in this case, for the sake of the Tribal Court’s and Appellee’s argument—and do not hold that this is in fact the case.

489 U.S. 602 (1989).

Id. at 613-14.

Id. at 617.

Id. at 619.

Id. (some internal quotation marks omitted)

Id. at 620.

Id. at 621.

Id.

Id. at 626-28 (emphasis added).

Id. at 633.

Id. at 626 (emphasis added).