October 30, 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 ON ADDITIONAL MAIL DISPUTE
This mail dispute proceeding was referred by the Judicial Officer to the Administrative Law Judge for handling in accordance with 39 CFR Part 965 and for issuance of an Initial Decision regarding a new dispute[1]/ concerning delivery of mail addressed to Havasu Landing Resort, P. O. Box 3429, Needles, CA 92363-2059. Both disputants filed written submittals under 39 C.F.R. §965.5 and comments under §965.6. The following findings of fact and conclusions of law are based upon the submittals, comments, and the exhibits attached thereto:
FINDINGS OF FACT
1. Prior to April 25, 1992, Disputant Christine Walker was Chairperson of the Chemehuevi Tribal Council, which is recognized by the Department of Interior ("Interior") as the official governing body of the Chemehuevi Indian Tribe. 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.
2. 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 headed by Disputant Matthew Leivas, Sr., as Chairman.
3. As previously found in the Initial Decision dated July 24, 1992, the above election did not comply with the recall and special election procedures of the Tribal Constitution. Also, the Tribal Constitution was not amended to authorize the use of alternative procedures. Accordingly, the April 25 election failed to remove Disputant Walker and other members of the Chemehuevi Tribal Council, and failed to install the Interim Tribal Council. It is concluded that Disputant Walker is still the Chairperson of the Tribal Council.
4. Havasu Landing Resort ("Resort") is a commercial enterprise of the Chemehuevi Indian Tribe located on the Chemehuevi Indian Reservation (Plan of Operation ("Plan"), §A(2), §A(3)(g), and §D(16)).
5. Under the Resort's Plan of Operation, the general policies, plans and procedures for the Resort are determined by the Tribal Council (Plan, §B(1)).
6. The Havasu Landing Board of Directors ("Board") determines the management and operating policies and procedures of the Resort. The Tribal Council selects the Board members (Plan, §B(2)).
7. At present, the Board consists of Disputant Christine Walker, Tribal Chairperson; Laveena Goodman, Tribal Vice-Chairperson; and Patricia Mardis, Tribal Secretary-Treasurer.
8. The Manager of the Resort is responsible for the operation of the Resort. He reports "directly to the Board" (Plan, §B(1))[2]. He is hired by the Board with the approval of the Council (Plan, §B(2) (k)). The provisions of his employment contract are subject to final approval by the Area Director of the Bureau of Indian Affairs.
9. Disputant Leivas does not serve on either the Tribal Council or the Board.
10. Clifford Claggett began serving as Acting General Manager of the Resort in April of 1992 prior to the time that Disputant Walker and the Tribal Council left the Reservation. When Disputant Leivas and his Interim Tribal Council purported to take over the Tribe and its Resort, Leivas forced Claggett to leave the Reservation under protest. Disputant Walker has recently advised the Area Director and the Postmaster, Needles, CA, orally and in writing that Claggett is the Acting General Manager. She has also informed the Postmaster in writing that Claggett is authorized to receive the Resort's mail.
11. It appears that the Management Contract for Claggett has not yet been approved by the Area Director, Bureau of Indian Affairs, as required by the Plan.
12. Disputant Leivas argues that after Claggett left the reservation, Donald Whetten was the highest official remaining at the Resort. He alleges that Whetten has continued to perform the function of General Manager, and that he has "apparent authority" to receive the Resort's mail. Mr. Whetten was purportedly appointed General Manager by the Interim Tribal Council. Since the latter was not properly elected under the Tribal Constitution, it had no authority to appoint Whetten.
CONCLUSIONS OF LAW
1. The Havasu Landing Resort is owned by the Chemehuevi Indian Tribe. It has already been established that Disputant Walker is the Chairperson of the Tribal Council. Christine Walker and Matthew Leivas, Sr., P.S. Docket No. MD-153 (P.S.D. August 28, 1992). She is also Chairperson of the Board of the Resort. The Board is responsible for hiring the Resort's General Manager.
2. Disputant Leivas first argues that the Administrative Law Judge should reconsider the Postal Service's Decision that Walker's Tribal Council is the governing body of the Tribe. However, that decision is final and a Motion to Reconsider was denied by the Judicial Officer (Order, September 9, 1992). Accordingly, the Administrative Law Judge lacks jurisdiction to reconsider that decision. Moreover, even if the matter could be properly reconsidered, there has been no evidence presented that would alter the decision.
3. Disputant Leivas also argues that Claggett was not properly appointed as Acting General Manager because there is no evidence of a formal Tribal Council resolution approving such appointment and no final approval of the management contract by the Area Director, Bureau of Indian Affairs, as required by the Plan of Operation. However, even if Claggett's appointment as General Manager has not been finalized through appropriate resolution by the Council and approval by the Area Director, he has still been appropriately designated as agent of the Board for the purpose of receiving mail addressed to the Resort. Since the Board is ultimately responsible for the operation of the Resort, the designation of Claggett for this purpose is proper.
4. Disputant Walker specifically opposes Leivas's request to have the Resort's mail delivered to Donald Whetten, who she alleges is merely an agent of the Interim Tribal Council. The mere fact that Whetten has been running the resort for the last six months, even if he has done so independently of the Interim Tribal Council, does not make him the appropriate agent of the Board to receive the Resort's mail.
5. Accordingly, the mail addressed to Havasu Landing Resort, P. O. Box 3429, Needles, CA 92363-2059, should be delivered to Clifford Claggett, as the designated agent of the Havasu Landing Board of Directors.
6. 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.
7. The attached mail delivery order should be issued.
Randolph D. Mason
Acting Chief Administrative Law Judge
[1]. The Judicial Officer upheld the Initial Decision of the Administrative Law Judge that mail addressed to the Chemehuevi Indian Tribe should be delivered in accordance with the direction of Christine Walker, Chairman of the Tribal Council. Christine Walker and Matthew Leivas, Sr., P.S. Docket No. MD-153 (P.S.D. August 28, 1992).
[2] The current Plan of Operation was approved by the Area Director on March 21, 1990. Contrary to Leivas's allegation, §B(1) no longer requires the Manager to report to the Superintendent, Colorado River Agency.