April 5, 2004

 

In the Matter of a Mail Dispute Between

 

DEBORAH S. WILSON

 

and

 

R.H. BOINTY[1]

 

P.S. Docket No.  MD 04-19

 

APPEARANCE FOR DISPUTANT DEBORAH S. WILSON:

Ryland L. Rivas, Esq.
628 West Choctaw Avenue

Chickasha, OK  73018-2436

APPEARANCE FOR DISPUTANT R.H. BOINTY:

R.H. Bointy

P.O. Box 370

Carnegie, OK  70315-0370

 

INITIAL DECISION

            This mail dispute has been docketed pursuant to Postal Operations Manual (POM 9, July 2002) Section 616.21, which requires the Chief Field Counsel to forward certain unresolved mail disputes to the Judicial Officer for resolution.  The mail in dispute is that addressed to Kiowa Tribe of Oklahoma, at P.O. Box 369, Carnegie, OK 73015-0369.  The Carnegie Postmaster is currently holding the mail.

            Both parties filed written statements, with additional documents attached.  The following findings of fact are based on all the material submitted by the parties, including the material forwarded by the Postal Service Law Department, Southwest Office.

FINDINGS OF FACT

            1.  The Constitution of the Kiowa Indian Tribe of Oklahoma provides that the Kiowa Indian Council is the governing body of the tribe.  The Council is composed of all members of the tribe that are eighteen years of age or older.  (Constitution, Article I; Constitution attached to Law Department letter).

            2.  The Constitution also provides for a Kiowa Business Committee (KBC), a representative body elected by the Council and empowered to act on all matters not reserved to the Council.  The KBC is composed of four officers: chairman, vice-chairman, secretary and treasurer; and four other members.  (Constitution, Articles I, III, and V).

            3.  At some time prior to the generation of the various current disputes, the elected officers of the KBC were: Clifford A. McKenzie, Chairman; R. H. “Hess” Bointy, Vice-Chairman; Deborah S. Wilson, Secretary; Steve Quoetone, Treasurer.  Mr. McKenzie has apparently been ill for some time and, by letter dated October 8, 2002, directed that Mr. Bointy act as Chairman, in accordance with a specific provision in the Constitution.  (Letter and other documents attached to Law Department letter).

            4.  At some time in 2002, disputes arose over the handling of tribal business and over who should be recognized as having authority to act for the tribe.  On August 19, 2003, a Superintendent at the Bureau of Indian Affairs, U.S. Department of the Interior, issued an administrative decision on several matters that had apparently been raised by Ms. Wilson and her associates.  The Superintendent stated that certain actions of the KBC and the Kiowa Hearing Board (KHB), an entity described in the By-Laws and whose members are to be appointed by the Business Committee, violated the Kiowa Constitution.  The Superintendent concluded that actions taken by the KBC and KHB had “caused confusion as to the valid composition of the KBC,” and declared that all “election-related actions” conducted by the “purported KHB” were “null and void.”  She then named the eight members of the KBC that the Bureau of Indian Affairs would continue to recognize and with whom the agency would conduct business.  The eight included the four officers named in paragraph 3, above, and four other members.  (Letter attached to Law Department letter).

            5.  In accordance with procedures set out in the Superintendent’s decision, someone – it is not clear who – appealed that decision to the next level of the Bureau of Indian Affairs.  In a letter dated February 10, 2004, a Regional Director affirmed the Superintendent’s decision and set out further appeal rights.  In his submission, Mr. Bointy states that this decision is now on appeal to the Department of Interior Board of Indian Appeals.  (Letter attached to Law Department letter; Bointy March 8, 2004 submission).

            6.  At some time in early 2004, Ms. Wilson and her associates, as Plaintiffs, brought an action against Mr. McKenzie and Mr. Bointy, as Defendants, in the Court of Indian Offenses for the Kiowa Tribe.  This is Case No. CIV-04-A03.  On February 6, 2004, a Magistrate Judge of this court found that “there is a dispute between the duly elected business committee of the Kiowa Indian Tribe of Oklahoma and the above named Defendants with regard to mail service and delivery,” that the Defendants have obstructed the conduct of business and that the Bureau of Indian Affairs had recognized Ms. Wilson and four other named officials as those having authority to act for the Kiowa Tribe of Oklahoma.  The judge issued an Order that “all postal service and delivery should be made to the Plaintiffs.”  (Order attached to Law Department letter).[2]

            7.  Section 616.3 of the Postal Operations Manual provides that, “[W]hen the same mail is claimed by different persons, and a court decides to whom delivery should be made, the mail is delivered according to the court order.”

            8.  As provided in the Code of Federal Regulations (CFR) for the Bureau of Indian Affairs, Courts of Indian Offenses are created “to provide adequate machinery for the administration of justice for Indian tribes in those areas of Indian country where tribes retain jurisdiction over Indians that is exclusive of state jurisdiction but where tribal courts have not been established to exercise that jurisdiction.”

(25 C.F.R. §11.100(b)).

            9.  A Court of Indian Offenses has both criminal and civil jurisdiction.  The civil jurisdiction, “[E]xcept as otherwise provided in this title,” extends to “any civil action arising within the territorial jurisdiction of the court in which the defendant is an Indian, . . ..”  (25 C.F.R. §11.103(a)).

            10.  25 C.F.R. §11.104 Jurisdictional limitations, provides as follows:

(a) No Court of Indian Offenses may exercise any jurisdiction over a Federal or state official that it could not exercise if it were a tribal court.

 

(b) Unless otherwise provided by a resolution or ordinance of the tribal governing body of the tribe occupying the Indian country over which a Court of Indian Offenses has jurisdiction, no Court of Indian Offenses may adjudicate an election dispute or take jurisdiction over a suit against the tribe or adjudicate any internal tribal government dispute.

 

(c) The decision of the BIA on who is a tribal official is binding on the Court of Indian Offenses.

 

            11.  25 C.F.R. §11.200 Composition of court, provides, in part

                       

(a) Each court shall be composed of a trial division and an appellate division.

 

                                    *  *  *

(c) Appeals shall be heard by a panel of three magistrates who were not involved in the trial of the case.

 

DECISION

            Ms. Wilson bases her claim on the Order issued by the Court of Indian Offenses (Finding #6), as well as on a recall election that she says removed Mr. McKenzie and Mr. Bointy from office on February 28, 2004.  

            Mr. Bointy asserts that the Court of Indian Offenses had no jurisdiction to act in this matter, that the ruling by the BIA is not final (Findings #4 and #5) and also has nothing to do with delivery of mail, and that he and Mr. McKenzie are still Vice-Chairman and Chairman of the KBC.  He contends that the Kiowa Indian Council is the governing body under the Constitution and cites a “Resolution” of the Council on December 20, 2003, which recognized that he and his named supporters, not Ms. Wilson and her named supporters, make up the legitimate KBC.

            This case turns on whether we must give deference to the February 6, 2004 Order of the Court of Indian Offenses.  If so, the mail should be delivered to Ms. Wilson in accordance with that Order.  Our role in mail disputes is to resolve those disputes in accordance with prescribed postal regulations.  We do not rule on the propriety of actions taken by a court and will, therefore, deliver the mail in accordance with the Order of the Court of Indian Offenses.  Any challenge to the ruling of the Magistrate Judge must be made within the structure provided in that system.  

            This decision deals only with delivery of the mail.  It makes no judgment as to who are the properly elected tribal officials, and does not attempt to resolve any other dispute between the parties.

            The Judicial Officer should issue an Order to the Carnegie, Oklahoma Postmaster that the disputed mail should be delivered according to the direction of Deborah S. Wilson.

 

                                                                                                Bruce R. Houston

                                                                                                Chief Administrative Law Judge


[1]  Correction has been made to reflect the correct name of Disputant R.H. Bointy.

[2]  One of the confusing aspects of this case is that both parties, as well as the Magistrate Judge, appear to consider the August 19, 2003 decision of the Superintendent as supportive of Ms. Wilson and not supportive of Mr. McKenzie and Mr. Bointy.  It is not clear why this is so.