In the Matter of a Mail Dispute                   )
Between                                                    )
                                                                   )
DENNIS J. BOWEN                                      )
                                                                   )
and                                                             )
                                                                   )
KAREN BUCKTOOTH                                 )  P.S. Docket No. MD 95-59

APPEARANCE FOR MR. BOWEN:              Derril B. Jordan, Esq.
                                                                   Assistant Attorney General of
                                                                   the Seneca Nations of Indians
                                                                   P.O. Box 231
                                                                   Salamanca, NY 14779-0231

APPEARANCE FOR MS. BUCKTOOTH:      Hans Walker, Jr., Esq.
                                                                   Hobbs, Strauss, Dean & Walker
                                                                   Federal Bar Building
                                                                   1819 H Street, NW, Suite #800
                                                                   Washington, DC 20006

This mail dispute has been docketed pursuant to Domestic Mail Manual Transition Book § 153.72, 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 Seneca Nation of Indians, 1490 Rt. 438, Irving, New York 14081-9568, and to The Seneca Nation of Indians, P.O. Box 231, Salamanca, New York 14779-0231. The mail is currently being delivered to third parties, in accordance with a Stipulation entered into by the parties on March 16, 1995, and an Order issued by the Judicial Officer on March 17, 1995.

By agreement of the parties, the time for submitting supporting documents under 39 C.F.R. § 965.5 was extended to April 28, 1995. On that date, the attorney for Mr. Bowen submitted a memorandum of law, and attached documents, in support of their position. The attorney for Ms. Bucktooth submitted a motion asking that the mail continue to be delivered under the terms of the Stipulation for another thirty days, and that the Postal Service not render a decision until the underlying dispute, now pending in the appellate courts of the Seneca Nation, is resolved. Ms. Bucktooth and Mr. Bowen then submitted additional comments, which were received on May 15 and May 19, respectively, in accordance with 39 C.F.R. § 965.6. The comments submitted on behalf of Mr. Bowen contest Ms. Bucktooth's claim that mail delivery under the Stipulation is working smoothly, and oppose Ms. Bucktooth's request that decision on this mail dispute be delayed.

BACKGROUND

This mail dispute is but an incidental part of a very contentious dispute over who is the rightful leader of the Seneca Nation of Indians. A brief history is necessary. The Seneca Nation operates under a Constitution adopted in 1848. The legislative power is vested in a Tribal Council made up of sixteen members ("Councillors"), elected for terms of four years. The judicial branch consists of two Peacemakers Courts, two Surrogates Courts, and a Court of Appeals. All decisions of the two lower courts are subject to appeal to the Court of Appeals. Decisions of the Court of Appeals are reviewable by the Council, sitting as the Nation's Supreme Appellate Court. The executive branch is headed by a President, elected for a two-year term. On November 1, 1994, Dennis Bowen was elected President in a regularly scheduled election, and took office on November 8, 1994.

Action in Peacemakers Court

On November 11, Bowen brought an action in the Peacemakers Court to enjoin Ross John, Sr. from acting as a member of the Council, alleging that John had been improperly appointed by the outgoing President. The Court granted a temporary injunction. John moved to vacate, but the Court denied the motion and scheduled a further hearing for December 12. On November 29, 1994, Tyrone Leroy and Rosemary Patterson were permitted to intervene as plaintiffs, naming four other defendants who they alleged also had been improperly appointed to various positions in the Nation's government. The Peacemakers Court enjoined these defendants from acting in any official capacity. On December 9, 1994, all the defendants appealed to the Nation's Court of Appeals.

Action in State Court

In the meantime, on November 18, 1994, Ross John, Sr. and several others brought an action against Bowen in the New York State Supreme Court, asking for declaratory and injunctive relief. Bowen responded, citing the orders and pending hearings in the Peacemakers Court, but the State Court held hearings between November 30 and December 12, 1994, determined it had jurisdiction, and issued Orders enjoining Bowen from taking any action to remove plaintiffs from their appointed positions until the State Court resolved the underlying disputes. In essence, then, one group had been enjoined by the Peacemakers Court, and the other group had been enjoined by the State Court. Bowen appealed to the New York State Appellate Division, Fourth Department, and also asked for a stay of the Supreme Court's orders pending appeal. The stay was denied on January 9, 1995.

Action in Federal Court

On January 20, 1995, Bowen filed suit for declaratory and injunctive relief in the United States District Court for the Western District of New York, naming two State Supreme Court Justices as defendants. The District Court heard oral argument on January 23, 1995, and, on January 27, 1995 issued a 30 day temporary restraining order (TRO) enjoining the State Court from exercising jurisdiction until the District Court ruled. The defendants-intervenors later argued that both the Federal and State court actions were moot because Bowen had since been impeached as President by the Council.

Impeachment Action

On January 14, 1995, at a regularly scheduled meeting of the Council, the Council voted 10-4 to begin impeachment proceedings against President Bowen. An Impeachment Committee then drafted specific charges, and notice of an Impeachment Court, composed of all members of the Council and the Surrogate Court Judges, as provided for in the Nation's Constitution, was served. The Impeachment Court, with the Bowen supporters apparently refusing to participate, convened on January 28, 1995, found Bowen guilty of the offenses charged, and ordered that he be removed from office. On February 11, 1995, the Council voted 9-0 (six members, presumably the Bowen supporters, were absent) to appoint Karen Bucktooth to serve as President for the unexpired term.

Second Action in Peacemakers Court

On January 27, 1995, two Surrogate Judges, Patricia Scanlan and Jacqueline Bowen, filed a Complaint and Motion for TRO and Preliminary Injunction, naming the elected members of the Council as defendants. The plaintiffs alleged that procedures prescribed in the Seneca Nation's Constitution for impeachment of a President had not been followed. The Peacemakers Court issued a TRO and an Order to Show Cause, and set a hearing for January 31, 1995. Nevertheless, as described in the preceding paragraph, the Council went forward with the impeachment proceeding. On February 6, 1995, the Peacemakers Court issued an Order stating that the establishment of the Impeachment Committee was unconstitutional, that any impeachment proceedings that had taken place were null and void, and that no further impeachment proceedings were to take place without the presence of the Surrogate Judges. This decision has been appealed to the Nation's Court of Appeals. Once that Court renders a decision, it is likely that its decision will be appealed to the Council, sitting as the Supreme Appellate Court.

Decision of the U.S. District Court

On February 27, 1995, the District Court, in Bowen v. Doyle, ruled that the courts of the Seneca Nation have exclusive jurisdiction over internal tribal disputes. The Court ordered that the courts of the State of New York were enjoined from enforcing orders previously issued by Justice Doyle, or from exercising any further jurisdiction over the matters in dispute. Although clearly stating that he was making no judgment as to who should ultimately prevail in this litigation, the Judge also makes clear that, until the Nation's Courts declare otherwise, Bowen is still the President.

"The Court finds that Bowen will suffer immediate and irreparable harm if the State Defendants are not enjoined from continuing to exercise jurisdiction over this wholly internal tribal dispute. As President of the Nation, vested under the Nation's Constitution with the executive power of the Nation and the responsibility to see that the laws applicable to the Nation are faithfully executed, Bowen has both the right and obligation to protect the Nation's treaty-protected rights to self-government and exclusive jurisdiction over its internal affairs."

Decision of the Seneca Nation Court of Appeals in CA #1111-94

The Defendants' appeal from the injunctive orders issued by the Peacemakers Court in Bowen, et al. v. John, et al. on November 29, 1994 was apparently based on a sovereign immunity argument, and several procedural grounds. On March 17, 1995, the Court of Appeals affirmed the actions of the Peacemakers Court. This decision is now being appealed to the Supreme Appellate Court (the Council).

Decision of the Bureau of Indian Affairs, U.S. Department of the Interior

At a meeting on March 22, 1995, the Bureau of Indian Affairs reviewed materials submitted by Mr. Bowen and Ms. Bucktooth, and heard presentations from both sides. In a letter dated March 31, 1995, signed by the Acting Area Director, Eastern Area Office, the Bureau stated that, although it had no authority "to intervene or interfere in the internal affairs of the Nation," it did have authority to decide which group the United States would deal with to "maintain government-to-government relations." Based primarily on its finding that the impeachment of Mr. Bowen was invalid because Ross John and Arthur John participated as voting members even though they were under an injunction from the Peacemakers Court that prohibited them from acting as Councillors, the Bureau concluded that, "[I]n the opinion of the Bureau, President Bowen continues to occupy the office of the President."

The Bureau's letter went on to list several conditions that must be complied with in order for the Bureau to carry out its function of administering various Federal programs on the Seneca reservations. The letter concluded by stating that the decision could be appealed within thirty days, in accordance with Department of Interior rules and procedures. In a letter addressed to Ms. Bucktooth, dated April 7, 1995, the Acting Area Director clarified this right of appeal by explaining that it was the several conditions placed on government-to-government relations that were appealable. He stated that the Bureau had always recognized Mr. Bowen as President, since the November 1994 election, and therefore, the Bureau's decision on that was final.

On May 1, 1995, Ms. Bucktooth appealed this decision to the Office of Hearings and Appeals, Interior Board of Indian Appeals, arguing that the Acting Area Director exceeded his authority, and usurped the sovereignty of the Seneca Nation, in making his various pronouncements on the legality of the impeachment proceedings. She asks that the Interior Department defer any action with regard to the Seneca Nation until the issues pending in the Nation's judicial system are resolved.

DECISION

The first question is whether the Postal Service should decline to rule on this mail dispute, but instead wait until the Seneca Nation's Courts have finally resolved all the pending litigation. In the absence of an agreement by the parties to suspend action on the mail dispute, which we clearly do not have here, I find that a Presiding Officer has no authority to decline to make a decision. See Orders on Remand, MD-4 (February 25, 1988) and MD-7 (February 24, 1988).

Keeping in mind that this decision goes no further than directing delivery of the mail, the answer is clear. The Domestic Mail Manual, Section D042.4.1 states:

All mail addressed to a governmental or nongovernmental organization or to an individual by name or title at the address of the organization is delivered to the organization, as is similarly addressed mail for former officials, employees, contractors, agents, etc. If disagreement arises where any such mail should be delivered, it must be delivered under the order of the organization's president or equivalent official. (emphasis added)

Mr. Bowen was elected President. The United States District Court ruled that the legality of some of his subsequent actions, the legality of his impeachment by his opponents, and the authority of the Peacemakers Court to decide these issues, are internal tribal matters that must be resolved in the tribal courts. The Peacemakers Court, which thus far has ruled in Mr. Bowen's favor, is the first step in that process. The authority of the Peacemakers Court to so rule is part of the challenge by Mr. Bowen's opponents, but until the tribal courts declare otherwise, he is still the President. While the decision of the Bureau of Indian Affairs is not binding on the Postal Service, it does make practical sense that delivery of the mail be consistent with the Federal Government's decision as to whom it will deal in the administration of other Federal functions.

This decision deals only with delivery of the mail. It makes no judgment as to who will ultimately win the pending litigation, or who should be President of the Seneca Nation. It also makes no judgment as to what action the Department of Interior, Board of Indian Appeals, should take. It simply concludes that, as of now, based on the decisions of the United States District Court, and the Seneca Nation Peacemakers Court, Mr. Bowen is the President. Therefore, in accordance with DMM § D042.4.1, the mail should be delivered at his direction. If the Courts reach a different conclusion, and should either party obtain a court order directing delivery of the mail, postal regulations provide that mail will be delivered in accordance with such order. DMM § D042.6.3.

The attached delivery order should be issued.

Bruce R. Houston
Acting Chief Administrative Law Judge