July 24, 1992
In the Matter of a Mail Dispute Between:
CHRISTINE WALKER, Chairman
Chemehuevi Tribal Government
and
MATTHEW LEIVAS, SR., Chairman
Interim Tribal Council
P. S. Docket No. MD-153
APPEARANCE FOR MS. WALKER:
Glenn M. Feldman, Esq.
One East Camelback #1100
Phoenix, AZ 85012-1656
APPEARANCE FOR MR. LEIVAS:
John Paul Kennedy, Esq.
1385 Yale Avenue
Salt Lake City, UT 84105-1612
INITIAL DECISION
This mail dispute proceeding was docketed under Domestic Mail Manual §153.72, which requires Regional Counsel to forward uncertain unresolved mail disputes to this Department for decision. Both disputants filed written submittals under 39 C.F.R. §965.5 and comments under §965.6. Disputant Leivas has also filed an Affidavit and Verification which amends his submission by making it a sworn statement and a correction in ¶2. These amendments are accepted; however, ¶¶ 3-4 and related exhibits are rejected as untimely.[1] The dispute concerns delivery of mail addressed to the Chemehuevi Indian Tribe, P. O. Box 3429, Needles, CA 92363-2059. The following findings of fact and conclusions of law are based upon the submittals and amendments which have been allowed, the comments, and the exhibits attached thereto:
FINDINGS OF FACT
1. The Chemehuevi Indian Tribe is a federally recognized Indian Tribe, with its reservation located in California on the Colorado River.
2. Prior to April 25, 1992, Disputant Christine Walker was Chairman of the Chemehuevi Tribal Council, which was recognized by the Department of the Interior ("Interior") as the official governing body of the Chemehuevi Indian Tribe.
3. On about April 23, Ms. Walker and eight of the nine members of the Tribal Council left the Reservation. On the same date, agents of the Federal Bureau of Investigation came to the Reservation and seized numerous tribal records. Although allegations of wrongdoing have been made, the investigation is still pending.
4. On April 25 certain members of the Tribe, including Disputant Matthew Leivas, who were dissatisfied with the Walker administration, held an election attended by about 150 individuals. They purported to remove Ms. Walker and other members of the Chemehuevi Tribal Council, and elect an Interim Tribal Council with Disputant Matthew Leivas, Sr., as Chairman. However, under the Tribal Constitution, only three council positions were to be elected at that time, and Ms. Walker's position as Chairman was not up for reelection. The recall procedures set forth in Article VIII of the Tribal Constitution were admittedly not followed.
5. On April 29, the Phoenix Area Director of Interior's Bureau of Indian Affairs concluded that the election was not proper under the Tribal Constitution, that the Interim Tribal Council should not be recognized by the federal government, and that the Chemehuevi Tribal Council is the recognized governing body of the Tribe. This position was reiterated by the Acting Superintendent of BIA Colorado River Agency by letters dated April 30 and May 1, 1992. Also on June 9, 1992, the latter specifically recognized Disputant Walker as Chairman of the Tribal Council.
6. Article IX if the Tribal Constitution provides that 30 percent of the voting members of the tribe may initiate by referendum vote a recall or withdrawal of current election ordinance. A special election must be called by the Tribal Council within 60 days from receipt of the petition. This procedure was not followed for the April 25 meeting.
7. By May 22 the Interim Tribal Council had sent Interior a petition for recall signed by approximately 130 of the 360 tribal members. Interior is presently considering Mr. Leivas's request that Interior withdraw recognition of the old Tribal Council, recognize the Interim Tribal Council, and assist in rescheduling tribal elections supervised by the Secretary of Interior.
CONCLUSIONS OF LAW
1. The Domestic Mail Manual (DMM) does not specifically address the delivery of mail to Indian tribes. However, it does address other entities, such as corporations, where disputes arise as to delivery of mail. The DMM requires that mail addressed to a corporation be delivered as addressed or to its authorized agents. Where a disagreement arises among corporate officers and others connected with a company, the mail is delivered in accordance with the orders of the president of the corporation. DMM §153.51. See also Ira Hubbard, P.S. Docket No. MD-137 at 4 (I.D. Jan. 10, 1992); J. Stanton Keck, P.S. Docket No. MD-95 at 2-3 (I.D. Aug. 31, 1990). Although not specifically covered by the DMM, the same rule has been applied to associations. Executive Committee, Hoboken Teacher's Association, P.S. Docket No. MD-87 (I.D. July 9, 1990), aff'd August 2, 1990.
2. In the instant case, it would be appropriate to deliver mail addressed to the Chemehuevi Indian Tribe in accordance with the direction of the Chairman of the tribe's duly elected governing body. Each of the disputants herein claims to be the Chairman. The only relevant issue concerns the legal validity of the April 25 election installing Mr. Leivas as the Chairman of an Interim Tribal Council. This decision takes no position on the many accusations of other unlawful behavior made by both parties.
3. Disputant Walker relies on the fact that the Department of the Interior recognizes her as Chairman, and that it does not recognize Mr. Leivas and the Interim Tribal Council. She argues that her recognition by Interior is dispositive of this case. In Cayuga Indian Nation of New York v. Cuomo, 667 F. Supp. 938 (NDNY 1987), the Court held that federal government recognition of a tribe should be given great weight in any determination of Tribal status. However, the issue there was whether a group of Indians constituted a "tribe," not whether a leader of a tribe was properly elected under the tribal constitution. Accordingly, it is appropriate to examine the Chemehuevi Tribal Constitution to determine which party is the properly elected chairman of the Tribal Council.
4. It is undisputed that the recall procedures set forth in the Tribal Constitution were not followed with respect to the election of April 25. However, Disputant Leivas argues that the action installing an Interim Tribal Council was properly taken on that date in accordance with the "general powers" reserved to the Tribal membership in Article VI, Section 3 of the Tribal Constitution:
General Powers
. . . All powers heretofore vested in the Tribe, but not specifically refererred to in this Constitution, shall not be abridged, but shall
be reserved to the people of the Tribe and may be exercised through appropriate amendment to this Constitution. Emphasis supplied)
5. Leivas contends that the April 25 meeting was the annual membership meeting contemplated by Article X, Section 2, of the Tribal Constitution. He suggests that a quorum was present and that the establishment of the Interim Tribal Council on that date was an action which could be taken by a majority vote. (Art. X §2(e)).
6. Leivas argues that the recall procedures were not available because Walker and her council members had left the reservation, and there was no one to whom a recall petition could be presented. This argument is rejected since recall petitions were subsequently delivered to the old Tribal Council at its Post Office box on May 22, 1992. Accordingly, the recall procedures of the Constitution have been available to the tribal membership before and after the Tribal Council physically left the reservation.
7. Assuming the recall procedures were available, Leivas contends that such procedures are not exclusive because (1) the power of the tribal membership in a general meeting is "unrestricted," and (2) the membership's reserved powers are broad enough to permit removal of Council members without using the Constitution's removal and recall procedures. These contentions are rejected. First, the Constitution contemplates the use of the specific recall procedures set forth in the Article VIII rather than any circumvention of such procedures. Second, Article VI §3 provides for reserved powers which "may be exercised through appropriate amendment to this Constitution." Thus, if the Tribe wishes to legally avoid or change its recall procedures, it may do so by appropriate amendment to the Constitution after an election duly called by the Secretary of the Interior (Tribal Const., Article XIII). No such amendment has been effected.
8. The only other suggested means of changing election procedures is by referendum under Article IX, which requires a "special election" called by the Tribal Council after receiving a petition by 30% of the voting members of the tribe. This procedure was not followed.
9. It is concluded that the Chemehuevi Tribal Council remains the appropriately elected governing body contemplated by Article IV of the Tribal Constitution. As found by the Department of the Interior, the Interim Tribal Council is not the duly elected governing body.
10. Accordingly, the Postmaster will be directed to deliver all mail addressed to the Chemehuevi Indian Tribe in accordance with the direction of Christine Walker, Chairman of the Chemehuevi Tribal Council.
11. This decision only determines the right to delivery of the mail in dispute, and not its ownership. In the event that Disputant Walker receives mail clearly intended for Disputant Leivas, she is responsible for forwarding such mail to Disputant Leivas.
12. If a court reaches the contrary conclusion that Walker is not the duly elected Chairman, then the mail should be delivered in accordance with the court order.
Randolph D. Mason
Administrative Law Judge
[1] Although rejected herein, this evidence has been reviewed and would not have affected the outcome of this case.