In the Matter of a Mail                ) August 28, 1992
 Dispute Between:                       )
                                        )
 CHRISTINE WALKER, Chairman             )
 Chemehuevi Tribal Government           )
                                        )
 and                                    )
                                        )
 MATTHEW LEIVAS, SR., Chairman          ) P. S. Docket No. MD-153
 Interim Tribal Council                 )

APPEARANCE FOR DISPUTANT Glenn M. Feldman, Esq. WALKER: One East Camelback #1100 Phoenix, AZ 85012-1656

APPEARANCE FOR DISPUTANT John Paul Kennedy, Esq. LEIVAS: 1385 Yale Avenue Salt Lake City, UT 84105-1612

Disputant Leivas has filed an appeal from the Initial Decision of an Administrative Law Judge which holds that mail addressed to the Chemehuevi Indian Tribe, P.O. Box 3429, Needles, CA 92363-2059, which is currently being held or hereafter received, is to be delivered in accordance with the direction of Christine Walker, Chairman of the Chemehuevi Tribal Council. Disputant Walker opposes the appeal.

Prior to April 25, 1992, Disputant Walker was Chairman of the Chemehuevi Tribal Council (Tribal Council), which is recognized by the Department of Interior (Interior) as the official governing body of the Chemehuevi Indian Tribe (Tribe) (I.D., Findings of Fact (FOF) ¶ 2). On or about April 23, 1992, eight of the nine members of the Tribal Council, including Disputant Walker, left the reservation amid allegations of Tribal Council wrongdoing which are presently being investigated (I.D., FOF ¶ ¶ 1-3). On April 25, 1992, 150 Tribal members held a meeting during which they voted to remove Disputant Walker and the other Tribal Council members from office and replace them with an Interim Tribal Council (Interim Council), headed by Disputant Leivas as Chairman (I.D., FOF ¶ 4). The recall and special election procedures prescribed by the Tribe's Constitution were not followed at the April 25, 1992, meeting nor was the Constitution amended to authorize the use of alternate procedures (I.D., FOF ¶ ¶ 4 & 6, Conclusions of Law (COL) ¶ ¶ 4, 6-8).

Interior has determined that the April 25, 1992, election was improper, and therefore continues to recognize the Tribal Council as the properly elected governing body of the Tribe (I.D., FOF ¶ 5, COL ¶ 9). However, Interior is presently considering the Interim Council's request to withdraw recognition of the Tribal Council chaired by Disputant Walker, and to schedule and supervise a new election (I.D., FOF ¶ 7).

Based on these facts, the Administrative Law Judge concluded that the Interim Counsel was not properly elected and that Disputant Walker and the Tribal Council remain the appropriately elected governing body of the Tribe. As a result, he further concluded that mail addressed to the Chemehuevi Indian Tribe, P.O. Box 3429, Needles, CA 92363-2059, should be delivered in accordance with the direction of Disputant Walker, Chairman of the Tribal Council (I.D., COL ¶ ¶ 1-2 & 10).

Disputant Leivas on appeal takes exception to the findings and conclusions of the Initial Decision contending that the Administrative Law Judge erroneously determined that Disputant Leivas was not the properly elected Tribal Chairman. According to Disputant Leivas, the recall procedures prescribed in the Tribal Constitution, and on which the Administrative Law Judge relies, were not available since the Tribal Council was responsible for implementing those procedures, but refused to schedule a new election. In addition, Disputant Leivas argues that an amendment of the Constitution was not necessary in this case since a majority of the tribal membership had unrestricted power to elect the Interim Council. Disputant Leivas also contends that Interior's recognition of the Tribal Council is irrelevant since the tribal membership, not Interior, selects its leaders and a majority of that member ship supports the Interim Council. Disputant Leivas thereby requests that the Initial Decision be reversed allowing the Interim Council to receive delivery of the disputed mail, or alternatively, that the Postal Service withhold delivery of the mail until either a court of competent jurisdiction decides this matter or Interior conducts a new election.^1/

Disputant Walker opposes the appeal and requests that the Initial Decision be affirmed. In support of her position, Disputant Walker relies on a letter dated July 24, 1992, from Interior to Disputant Leivas, reaffirming Interior's position that the Tribal Council is the Tribe's authorized governing body. Disputant Walker points out that since Interior has an affirmative obligation to recognize a governing tribal body in situations concerning disputed elections, its decision to recognize the Tribal Council should be controlling. She also argues that recognition of the Interim Council, which was elected without following the specific removal and recall provisions of the Tribal Constitution, would render the removal and recall provisions meaningless.

Disputant Leivas on appeal has not persuasively demonstrated that the Initial Decision is clearly erroneous, or that any other grounds exist for the Judicial Officer to exercise his discretion to grant review of the Initial Decision. Specifically, Disputant Leivas has not persuasively shown that Disputant Walker is no longer Chairman of the Tribal Council, that the Interim Council was properly elected, or that Interior's recognition of the Tribal Council as the Tribe's appropriately elected governing body should not have been considered. Disputant Leivas' alternative request that the mail be held pending a further election or a court decision is denied. Under Domestic Mail Manual § 153.7 and 39 C.F.R Part 965, the Judicial Officer is responsible for timely deciding and directing the delivery of disputed mail.

Accordingly, the Initial Decision is the final agency decision as provided in 39 C.F.R. § 965.12. However, the Proposed Order, attached to the Initial Decision, has been modified to clarify that mail addressed to the Havasu Landing Resort, P.O. Box 3429, Needles, CA 92363-2059, was not originally at issue in this proceeding, and should not be governed by the directions for delivery of mail addressed to the Chemehuevi Indian Tribe.^2/

                                        James A. Cohen
                                        Judicial Officer

1/ Disputant Leivas has attached to his appeal evidence not previously presented to the Administrative Law Judge. While such evidence is not generally considered on appeal, even if considered, it would not establish that the Initial Decision is clearly erroneous.

2/ This decision only determines the right to delivery of the mail in dispute, and not its ownership. In the event that any party receives mail clearly intended for another, that party is responsible for forwarding such mail to the intended party.