In the Matter of a Mail Dispute Between

SYLVIA T. ARZATE
and
JOHN MARCUS
P.S. Docket No. MD 04-181

APPEARANCE FOR DISPUTANT SYLVIA T. ARZATE:
Sylvia T. Arzate
P.O. Box 7
Mt. Center, CA 92561-0007

APPEARANCE FOR DISPUTANT JOHN MARCUS:
Glenn W. Charos, Esq.
433 W. Grand Avenue
Escondido, CA 92025-2607

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 Santa Rosa Band of Cahuilla Indians, or the Santa Rosa Band of Mission Indians, at P.O. Box 390611, Anza, CA 92539-0611.  The Anza Postmaster is currently holding the mail.

            Mr. Marcus’ attorney filed a sworn written statement on behalf of Mr. Marcus, as required by the Rules of Practice, 39 C.F.R. §965.5, and many other documents. Ms. Arzate filed no statement, but filed many supporting documents.  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 Santa Rosa Band of Cahuilla Indians[1] is a federally recognized Indian Tribe, but has no written constitution and operates by customs and traditions.  (Charos Statement; Arzate, January 4, 2005 letter; Department of Interior letter, attached to Law Department forwarding letter).

            2.  The Band is governed by majority vote of all adult members, meeting as a General Council.  The Council elects a Chairman, Vice-Chairman, and five members of a Tribal Council for two-year terms.  (Charos Statement).

            3.  In November 2003, Erlinda Jones was elected Chairperson, John Marcus was elected Vice-Chairman, and five others were elected Tribal Council Members.  Not long thereafter, Ms. Jones stepped down and Mr. Marcus took over as Chairman, or Acting Chairman.  (Charos Statement, and Exs. A, B and E attached to Statement).

            4.  By letter dated November 26, 2003, those elected were recognized as the Santa Rosa Tribal Council by the U.S. Department of Interior, Bureau of Indian Affairs, Southern California Agency.  (Charos Statement, Ex. C).

            5.  During 2003 and 2004 a dispute was percolating over whether certain persons were valid members of the Santa Rosa Band of Cahuilla Indians, based on questions about their lineal descent.  This dispute caused a split between the Tribal Council led by Mr. Marcus and another group led by Ms. Arzate and others.  Ms. Arzate’s group asserted that Mr. Marcus and the other members of the Tribal Council were not carrying out their duties properly, and wrote several letters of complaint to the Bureau of Indian Affairs and others.  (Charos Statement, and Exs. D and E attached to Statement; Several documents attached to Arzate letter).

            6.  On June 13, 2004, Ms. Arzate’s group issued a “Resolution,” stating that Mr. Marcus and his group had abandoned their seats on the Tribal Council and that a meeting would be held to elect new members to the Tribal Council.  Another “Resolution,” dated July 25, 2004, states that the General Council held an emergency meeting on that date and elected Ms. Arzate and three others as a Pro-Tem Council.  (Documents attached to Arzate letter).

            7.  Sometime thereafter, Ms. Arzate submitted a PS Form 3575, Change of Address Order, directing that the disputed mail be forwarded to P.O. Box 7, Mt. Center, CA 92561.  Mr. Charos protested to the postmaster and this mail dispute arose.  (Documents attached to Law Department forwarding letter).

            8.  On November 4, 2004, the Superintendent, Bureau of Indian Affairs, Southern California Agency, wrote to the Anza, California Postmaster, stating that the Department of Interior recognizes Mr. Marcus and his group (naming five other Council Members), as authorized to represent and act on behalf of the Santa Rosa Band of Cahuilla Indians (Letter attached to Law Department forwarding letter).

            9.  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 dispute is governed by Section 614.1, quoted above.  Ms. Arzate has made no claim that Mr. Marcus was not properly elected as Vice-Chairman in November 2003, or that he did not properly assume the duties of Chairman sometime thereafter.  Her contention is that he has since been removed from office and that she and her group are now the duly elected leaders of the Tribe.         The position taken by the Bureau of Indian Affairs (see Finding #8) is not binding in this forum, but it carries some weight, and adds to Ms. Arzate’s burden of proving that Mr. Marcus has lawfully been removed, and that the purported election of the Pro-Tem Council was valid.  The evidence of record is insufficient to carry that burden.

            Ms. Arzate’s group attacks the position taken by the BIA Superintendent by alleging that he has ignored their concerns, improperly refused to recognize the authority of the Pro-Tem Council, and otherwise has not properly performed his duties.  This is one of many allegations of improper actions flowing back and forth between the two groups, each group asserting, among other things, that meetings held by the other group were illegal, but nothing is proved.  We must return to the status quo, therefore, and recognize Mr. Marcus’ authority as Chairman to direct delivery of the mail.

            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 Anza, California Postmaster that the disputed mail should be delivered according to the direction of John Marcus.

                                                                                                Bruce R. Houston
                                                                                                Chief Administrative Law Judge

[1] The names Santa Rosa Band of Cahuilla Indians, Santa Rosa Band of Mission Indians, and Santa Rosa Band of Cahuilla Mission Indians, appear to be used interchangeably in various documents.

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