March 25, 2005

In the Matter of a Mail Dispute Between

 

DAN SHOSHONE

and

SHIRLEY SUMMERS

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 SHIRLEY SUMMERS:

Mark A. Levitan, Esq

Monteau & Peebles, LLP

1001 Second Street

Sacramento, CA  95814-3201

 

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 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 1785 N. Main Street, Suite Q, Bishop, CA 93514.  The Bishop Postmaster is currently holding the mail.

Both parties filed sworn written statements, as required by the Rules of Practice, 39 C.F.R. §965.5, along with many other documents.  Both parties also filed additional material in rebuttal, in accordance with 39 C.F.R. §965.6.  The following findings of fact are based on all the material submitted by the parties, including the material forwarded by the United States Postal Service Law Department, Pacific Area Office.

FINDINGS OF FACT

            1.  The Timbisha Shoshone Indian Tribe is a federally recognized Tribe, governed by a Constitution that has been in effect since February 1986.[1]  The governing body of the Tribe is the General Council, consisting of all adult members of the Tribe.  The General Council elects a Tribal Council of five members, who exercise powers delegated by the General Council in the Constitution.  (Summers January 28, 2005 submission, Ex. A; Shoshone January 31, 2005 submission, Ex. 3).

            2.  There has been a long-running dispute over who should be recognized as the leaders of the Tribe.  In a special election on August 2, 2003, Shirley Summers was elected Chairperson of the Tribal Council.  Dan Shoshone and three others were elected members of the Tribal Council.  In a letter dated October 30, 2003, the Acting Regional Director of the Bureau of Indian Affairs (BIA), U.S. Department of the Interior, recognized the validity of the August 2 election and stated that the named Tribal Council officers would be recognized in “government-to-government” relations.  (Law Department forwarding letter; Shoshone January 31, 2005 submission, Ex. 1).

            3.  The October 30, 2003 decision was appealed to the Interior Board of Indian Appeals (IBIA).  On March 29, 2004, the Board determined that the October 30 decision should be placed into immediate effect and that the named Tribal Council officers would be recognized during the pendency of the appeal.  (Law Department forwarding letter; Shoshone January 31, 2005 submission, Ex. 2).

            4.  On July 22, 2004, the Tribal Council voted 3-0, purportedly to remove Shirley Summers as Chairperson and replace her with Dan Shoshone.  On August 10, 2004, the Tribal Council voted 3-0 to remove Shirley Summers from the Tribal Council.  (Law Department forwarding letter; BIA Regional Director decision, February 23, 2005).

            5.  On August 13, 2004, Shirley Summers, acting as Chairperson of the Tribal Council, called a General Council meeting to be held on August 21, 2004.  This meeting was held on August 21, 2004, attended by 114 members.  The General Council adopted several resolutions, one of which was to direct that an election of Tribal Council officers be held on November 9, 2004.  The General Council also confirmed the membership of the three-person Election Board.  (BIA Regional Director decision, February 23, 2005).

            6.  On September 8, 2004, the Tribal Council members that had voted to remove Ms. Summers filed a motion with the Interior Board of Indian Appeals to amend the Board’s March 29, 2004 Order to reflect the removal of Ms. Summers. (Law Department forwarding letter).

            7.  On October 28, 2004, the IBIA denied the motion to amend, on the grounds that the relief requested was outside the Board’s jurisdiction.  The Board also authorized the Regional Director, Bureau of Indian Affairs, to conduct further fact-finding and to issue a new decision, if appropriate, based on developments that had taken place since the October 30, 2003 decision.  (Law Department forwarding letter; October 28, 2004 IBIA Order attached).

            8.  The November 9, 2004 election directed by the General Council (see Finding #5) took place as scheduled.  The Election Board reported the results to the Tribal Council on November 10, 2004, and two appeals were filed.  On November 30, 2004, the Tribal Council heard the two appeals and determined that the election results were valid.  On December 6, 2004, the Election Board certified that the election had been properly conducted and named the five new members of the Tribal Council.  On December 9, 2004, the new Tribal Council elected Joe Kennedy as Chairperson.  (BIA Regional Director decision, February 23, 2005).

            9.  In accordance with the October 28, 2004 IBIA Order, the Regional Director, Bureau of Indian Affairs, issued a new decision on February 23, 2005.  In this decision, the Director recited a detailed chronology of events that had taken place since his October 30, 2003 decision, just as he had done for earlier events in the October 30, 2003 decision.  He concluded that this intra-tribal dispute had properly been resolved in tribal forums, and that the General Council meeting of August 21, 2004, and the election on November 9, 2004, had been properly conducted.  He stated:

Based on a review of the information provided and the absence of any evidence of either an unresolved appeal before a tribal forum or a violation of the Indian Civil Rights Act of 1968 (25 USC § 1301, et seq:), the Tribe has successfully exercised their constitutional rights and has taken the appropriate action to resolve their leadership dispute.  Therefore, I recognize the results of the November 9, 2004 Tribal elections and the following individuals elected to represent and serve as officials of the Tribe:

 

Joe Kennedy, Chairperson

(Four others also named)

 

            10.  In accordance with applicable rules, Mr. Shoshone and his group have appealed the Regional Director’s decision to the IBIA.  (Shoshone submission, March 15, 2005).

11.  POM Section 614.1, provides:

All mail addressed to a governmental or nongovernmental organization  . . . at the address of the organization is delivered to the organization. . . .  If disagreement arises about where any such mail should be delivered, it must be delivered according to the order of the organization’s president or equivalent official.[2]

 

DECISION

 

            Resolution of this mail dispute is governed by Section 614.1, quoted above.  Mr. Shoshone argues that the Regional Director’s decision has no bearing in this proceeding because, in addition to being “plainly wrong,” it is under appeal and is not final.

            I disagree.  While it is true that the position taken by the Bureau of Indian Affairs is not binding on the Postal Service, the Regional Director’s decision, based on his thorough review of this matter over a two-year period, is entitled to significant weight.  Also, while it is true that the Director’s decision is now under appeal to the IBIA, his decision is consistent with earlier rulings of the IBIA (see Findings #3 and #7).  Further, it makes practical sense that delivery of the mail be consistent with the Federal Government’s determination as to who it will deal with in the administration of other Federal functions involving the Timbisha Shoshone Tribe.

            This decision deals only with delivery of the mail.  It makes no judgment as to who should be the tribal leaders, and does not attempt to resolve any other dispute between the parties.  If either party obtains a court order directing delivery of the mail, postal regulations provide that the mail will be delivered according to such an order.  POM §616.3.

            The Judicial Officer should issue an Order to the Bishop, California Postmaster that the disputed mail should be delivered according to the direction of Joe Kennedy.[3]

                                                                                    Bruce R. Houston

                                                                                    Chief Administrative Law Judge


[1] Nuwee Kunee Development and Sierra Nevada Enterprises are apparently corporations controlled by the Tribe (Law Department notes, attached to forwarding letter).

            [2] Similar language appears at Domestic Mail Manual (DMM), Issue 58, Revised through June 10, 2004, Section D042.4.1.

[3]  In her January 28, 2005 submission, Shirley Summers states that she no longer has “any valid interest” in receiving the mail, but that the mail should be delivered to Mr. Kennedy as the newly elected Chairperson of the Tribal Council.