Appeal of DAN SHOSHONE AND JOE KENNEDY – P.S. Docket No. MD 05-4

May 11, 2005

In the Matter of a Mail Dispute Between

DAN SHOSHONE

and

JOE KENNEDY

P.S. Docket No. MD 05-4

APPEARANCE FOR DISPUTANT DAN SHOSHONE:

Judith K. Albietz, Esq.

Albietz & Samuel

2001 N Street, Suite 100

Sacramento, CA 95814-4237

APPEARANCE FOR DISPUTANT JOE KENNEDY:

Mark A. Levitan, Esq.

Richard J. Armstrong, Esq.

Monteau & Peebles LLP

1001 Second Street

Sacramento, CA 95814-3201

POSTAL SERVICE DECISION

On March 25, 2005, an Administrative Law Judge issued an Initial Decision in which he concluded that all mail addressed to the Timbisha Shoshone Tribe, Timbisha Tribal Council, Nuwee Kunee Development, Sierra Nevada Enterprises and/or Shirley Summers at P.O. Box 786, Bishop, CA 93515-0786 and at 785 N. Main Street, Suite Q, Bishop, CA 93514-2471[1] should be delivered as directed by Disputant Joe Kennedy.[2] Disputant Dan Shoshone has filed an appeal from the Initial Decision, which Disputant Kennedy opposes.

Disputant Shoshone argues that that the Administrative Law Judge improperly based his Initial Decision on a decision of the Regional Director of the Bureau of Indian Affairs, which, under Department of Interior regulations, is neither final nor effective since the matter has been appealed to the Interior Board of Indian Appeals. Disputant Shoshone also contends that the Initial Decision omits or misstates essential facts concerning the November 9, 2004 election of the Tribe’s governing council, is contrary to federal regulations, denies him his due process rights and misapplies federal law.

Disputant Shoshone has not shown that the Initial Decision is clearly erroneous or that any other grounds exist for the Judicial Officer to exercise his discretion to review and reverse the Initial Decision. Although Disputant Shoshone correctly points out that the Regional Director’s decision has not become effective, he has not shown that the November 9, 2004 Tribal election results were invalid or that Disputant Kennedy is not the current Chairperson of the Tribe based on that election. Moreover, Disputant Shoshone has not shown that the Initial Decision omits or misstates any material facts, misapplies federal law or that he has been denied his due process rights. In the absence of persuasive evidence showing that the November 9, 2004 election was not valid, Disputant Kennedy, as the current Chairperson, is entitled to direct the delivery of the mail under postal regulations.[3]

Accordingly, Disputant Shoshone’s appeal is denied and all mail addressed to the Timbisha Shoshone Tribe, Timbisha Tribal Council, Nuwee Kunee Development, Sierra Nevada Enterprises and/or Shirley Summers at P.O. Box 786, Bishop, CA 93515-0786, 785 N. Main Street, Suite Q, Bishop, CA 93514-2471 and 110 Edwards Street, Bishop, CA 93514-3304[4] is to be delivered as directed by Joe Kennedy. The parties are reminded that this decision determines only the right to delivery of the mail in dispute, not the ownership of the mail. If either party receives mail intended for the other, that party is responsible for forwarding such mail to the intended recipient.

James A. Cohen

Judicial Officer

[1] The Initial Decision and the Order to the Bishop, CA Postmaster directing the detention of the mail in dispute during the pendency of this proceeding both incorrectly referred to the N. Main Street address as “1785” rather than “785.”

[2] By Order dated April 15, 2005, the Judicial Officer notified the parties that Joe Kennedy would be substituted for Shirley Summers as the disputant opposing Disputant Shoshone’s claim to the disputed mail unless objection was filed within 10 days from the date of receipt of the Order. As neither the parties nor Mr. Kennedy objected to the proposed substitution, Mr. Kennedy has been substituted for Disputant Summers as a party to this proceeding, and the caption of this proceeding has been amended accordingly.

[3] Section 614.1 of the Postal Operations Manual provides that “[i]f disagreement arises about where…[mail to a nongovernmental organization] should be delivered, it must be delivered according to the order of the organization’s president or equivalent official.” (POM Issue 9, July 2002).

[4] While the Initial Decision only concerned mail addressed to the names in dispute at P.O. Box 786, Bishop, CA 93515-0786 and 785 N. Main Street, Suite Q, Bishop, CA 93514-2471, the disputants have agreed that mail addressed to 110 Edwards Street, Bishop, CA 93514-3304 is also in dispute. Accordingly, mail to the names in dispute at that address is also to be delivered in accordance with the direction of Disputant Kennedy.