P.S. Docket No. MD 11-264
December 5, 2011
In the Matter of a Mail Dispute Between
RONALD D. TWOHATCHET and
BRUCE DEAN POOLAW
P.S. Docket No. MD 11-264
APPEARANCE FOR DISPUTANT
RONALD D. TWOHATCHET:
Amos E. Black III, Esq.
APPEARANCE FOR DISPUTANT
BRUCE DEAN POOLAW:
C.W. Bill Morgan, Esq.
INITIAL DECISION
The disputants both seek receipt of mail addressed to the Kiowa Tribe of Oklahoma at Post Office Box 369, Carnegie, OK 73015-0369. Both disputants seek to be recognized as the present chairman of the Business Committee of the Kiowa Tribe of Indians of Oklahoma and therefore entitled to receive or direct receipt of the Kiowa Tribe’s mail. Mr. Twohatchet asks that the mail be delivered as addressed, and released to him. Mr. Poolaw also asks that the mail be delivered as addressed, but that it be released at his direction to another official of the Kiowa Tribe, Ms. J. Artichoker, who has agreed to such a responsibility should the Judicial Officer so order. The Judicial Officer has directed the Carnegie, Oklahoma Postmaster to hold the Kiowa Tribe’s mail pending resolution of this dispute.
I recommend that the Judicial Officer direct the postmaster to release the disputed mail to Mr. Twohatchet and to deliver future Kiowa Tribe mail as addressed for receipt by Mr. Twohatchet or as he otherwise directs.
FINDINGS OF FACT
1. The Kiowa Tribe of Indians of Oklahoma (the Kiowa Tribe) is a federally recognized Native American Indian Tribe (Affidavit of R. Twohatchet (Twohatchet Aff.) ¶ 1).
2. The Kiowa Indian Council (Council) is the governing body of the Kiowa Tribe and is composed of all eligible Kiowa Tribe members. The Council elects the members of the Kiowa Business Committee (Business Committee) and votes on any recall elections (Kiowa Tribal Constitution (Const.) Art. 1 § 2; Art. III § 2; Art. IV § 1).
3. The Business Committee is empowered to represent the Kiowa Tribe in all official matters pertaining to tribal business not reserved to the Council and performs most administrative tasks for the Kiowa Tribe. The Business Committee is composed of 8 members – 4 officers (chairman, vice-chairman, treasurer and secretary) and 4 comitteemen. Half of the Business Committee officers and half the comitteemen are elected each June, with members serving two-year terms unless earlier recalled. (Const. Art. I §§ 1, 3; Art. III §§ 1, 3, 5; Art. V §§ 2(b), 5). On June 19, 2010, the Council elected Mr. Twohatchet to be the Business Committee’s chairman for a two-year term (Twohatchet Aff. ¶ 3; Const. Art. III § 3). The Business Committee’s chairman presides at all Council and Business Committee meetings, and has general supervision over Business Committee affairs (Const. Art. XII § 1).
4. The Kiowa Hearing Board (Hearing Board) is composed of 5 tribal elders, age 50 or greater, appointed by the Business Committee (Const. Art. XIV § 1).
5. A quorum of the 8-member Business Committee requires 5 members, and “no business of any nature shall be transacted unless a quorum is present.” (Const. Art. XV § 4).
6. Vacancies on the Business Committee are to be filled by election by the Council provided that the vacancy is not created within 6 months of the next scheduled June election. If it is, the vacancy is to be filled by appointment based on a majority vote of the remaining Business Committee members so long as they form a quorum. Such interim Business Committee members serve until the next scheduled election. (Const. Art. IV § 2).
7. If the Business Committee is permanently unable to raise a quorum, the Commissioner of Indian Affairs is to call and supervise an election to bring the Business Committee up to full complement (Const. Art. IV § 3).
8. In 2000, the Business Committee passed a resolution which enacted Hearing Board procedures and ratified the Kiowa Hearing Board Ordinance (Ordinance) (Business Committee Resolution attached to referral from Postal Service Counsel; Twohatchet Ex. 3).
9. The Hearing Board is empowered to conduct recall proceedings against elected or appointed Kiowa Tribe officials. Such recall proceedings may follow either (a) a recall referral from the Business Committee, or (b) an appeal from denial by the Business Committee of a recall proposal. (Const. Art. IV §§ 1-2; Art. XIV § 2; Ordinance Art. X § 12; Twohatchet Aff. ¶ 21). If, following a hearing, the Hearing Board decides that a recall proposal should be voted upon by the Council, it refers the matter to the Kiowa Tribe’s Election Board to conduct a recall election (Const. Art. XIV § 3).
10. All 5 Hearing Board members must be present to determine whether sufficient evidence justifies a recall election (Ordinance Art. X § 1; Twohatchet Aff. ¶¶ 13, 18, 21). However, if a Hearing Board member is temporarily unable to attend an appeal hearing due to serious illness or other reasons beyond his or her control and an appeal hearing has been scheduled, a temporary alternate Hearing Board member is to be appointed by the Business Committee so that 5 Hearing Board members hear the appeal (Ordinance Art. IV § 1; Art. X § 10). The Hearing Board is responsible to inform the Business Committee that an alternate Hearing Board member is needed (Ordinance Art. X § 10).
11. Recall appeal hearings before the Hearing Board are governed by judicial procedures (Ordinance Art. X §§ 1-12). The Hearing Board renders a decision on recall appeals after the hearing is adjourned. Decisions in appeals “will be made by majority vote of five members present.” Such decisions “shall be final.” (Ordinance Art. X § 12).
12. A recall proposal was filed against 7 of the 8 Business Committee members, including its chairman, Mr. Twohatchet. The recall proposal involved the appropriate remuneration of Business Committee members and alleged violations of the Kiowa Tribe Constitution. A hearing before that same Business Committee occurred on March 8, 2011. (Twohatchet Aff. ¶ 22; Twohatchet Response at p. 12; Poolaw Ex. 2). The only Business Committee member not subject to the recall proposal was Ms. Artichoker (Poolaw Aff. ¶ 2). Perhaps not surprisingly, the 8-member Business Committee denied the recall charges levied against 7 of its members (Twohatchet Aff. ¶ 22).
13. The Business Committee’s denial of the recall proposal was appealed to the Hearing Board (Poolaw Ex. 2). After determining that it possessed jurisdiction, on April 21, 2011, the Hearing Board conducted a recall appeal hearing for the charges levied against Mr. Twohatchet and the other 6 charged Business Committee members (Poolaw Aff. ¶ 2; Twohatchet Aff. ¶ 22). Although the Hearing Board’s decision merely recites that a quorum was present, all 5 Hearing Board members were present at the April 21 hearing (Twohatchet Aff. ¶ 22; Twohatchet response at p. 4; Poolaw Ex. 2).[1]
14. Following adjournment of the hearing, the Hearing Board deliberated and issued its decision on April 27, 2011. All 5 Hearing Board members were not present when this decision was made. The Hearing Board voted 3–0, with 1 apparent abstention, to reverse the decision of the Business Committee. It directed the Election Board to conduct a recall election to be voted upon by the Council. (Poolaw Aff. ¶ 2, Ex. 2; Twohatchet Aff. ¶ 22).
15. On July 16, 2011, the recall election occurred. If valid, the Council’s vote resulted in recall of the 7 members of the Business Committee, leaving only Ms. Artichoker. (Poolaw Aff. ¶¶ 3-4, Ex. 3; Statement of J. Artichoker (Artichoker St.)[2] at p. 1; Affidavit of W. Quoetone (Quoetone Aff.) ¶ 18).
16. Believing that she was the only remaining Business Committee member, Ms. Artichoker then appointed 5 members to the Business Committee, including the appointment of Mr. Poolaw as its chairman (Artichoker St. at pp. 1-2; Poolaw Aff. ¶ 4; Twohatchet ¶ 24).
17. Both Mr. Twohatchet as the pre-recall elected chairman of the Business Committee and Mr. Poolaw, as the post-recall appointed chairman of the Business Committee claimed the right to receive the Kiowa Tribe’s mail (Referral by Postal Service counsel and attachments thereto). During the course of the resulting mail dispute Mr. Poolaw withdrew his request to receive the mail himself but persisted in this mail dispute by arguing that he should be recognized as chairman and that he directs Ms. Artichoker, as the only non-recalled and undisputed Business Committee member, to receive the mail (see Poolaw Response at p. 11). Ms. Artichoker is amenable to that resolution (Artichoker St. at p. 2).
18. On September 22, 2011, the Bureau of Indian Affairs (BIA) issued an interim decision letter recognizing Mr. Twohatchet as chairman of the Business Committee on a temporary 90-day basis. That interim decision, which does not explain the reasoning behind its conclusion, has been appealed. (Artichoker St. at p. 1; Twohatchet Aff. ¶ 30, Ex. 7; Poolaw Aff. ¶ 5; Poolaw Response at p. 13).
19. Postal Service field counsel referred the mail dispute to the Judicial Officer, and the matter was assigned to the undersigned Administrative Judge. Following conferences with the parties, I established a schedule for submission of sworn statements and responses with which both parties complied.[3]
DECISION
Arguments of the disputants
As a preliminary matter, Mr. Twohatchet argues that I should defer entirely to the BIA’s interim ruling in his favor.
On the merits, Mr. Twohatchet presents three primary arguments. First, he asserts that the Hearing Board’s determination to order a recall election was invalid because 2 Board members were ineligible due to expired terms, and because the decision was rendered without the participation of another undisputedly valid Hearing Board member. He therefore maintains that the July 16, 2011 recall election was legally invalid, resulting in his being retained as the cognizable chairman of the Business Committee entitled to receive the Kiowa Tribe’s mail. Second, Mr. Twohatchet argues that the Election Board never authorized the recall election by a majority vote of a quorum of its members, an issue which I find unnecessary to resolve. Third, Mr. Twohatchet argues that even if the recall election were valid, Ms. Artichoker acting alone lacked the authority simply to appoint Mr. Poolaw as chairman of the Business Committee. He concludes that Mr. Poolaw’s appointment as chairman is therefore ineffective, precluding any possibility of a ruling in Mr. Poolaw’s favor.
Mr. Poolaw argues that the BIA’s recognition of Mr. Twohatchet as chairman of the Business Committee is temporary only, is under appeal, and should be disregarded. He asserts that the Hearing Board’s decision to conduct the July recall election was legally valid, and that the election was proper. He therefore argues that the Council’s voting resulted in the valid recall of Mr. Twohatchet from chairman as well as the other 6 Business Committee Members. He asserts that Ms. Artichoker, as the only Business Committee member not recalled, was vested with authority to appoint other members to the Business Committee, and that she appointed him as chairman. He asks that he be recognized as chairman and that Ms. Artichoker as the only undisputed member of the Business Committee should receive the mail at his direction.
The BIA’s interim recognition of Mr. Twohatchet as chairman
It is the responsibility of the Judicial Officer, not the BIA, to direct delivery of disputed mail. To the extent that this office’s determination must address the Kiowa Tribe’s leadership dispute, we will do so. See Phillip & Wendy Del Rosa and Darren Rose, Jennifer Chrisman & Joseph Burrell, P.S. Docket No.
MD 10-91 (I.D. July 2, 2010); Dennis J. Bowen and Karen Bucktooth, P.S. Docket No. MD 95-59 (I.D. May 24, 1995).
Furthermore, the BIA’s recognition of Mr. Twohatchet expressly was temporary, is about to expire, and in any event has been appealed (Finding 18). Deferring to it would result in the most fleeting of solutions to this mail dispute. Nonetheless, the BIA’s interim decision is entitled to some weight, in Mr. Twohatchet’s favor, in my deliberation. See Dan Shoshone and Shirley Summers, P.S. Docket No. MD 05-4 (I.D. March 25, 2005). Unfortunately, the BIA’s determination does not explain the reasoning on which it was based (Finding 18).
The disputed mail should be delivered as directed by the president-equivalent of the Kiowa Tribe
Postal regulations do not address specifically the delivery of mail to Indian tribes. However, where such disputes have arisen, we have applied the postal regulations applicable to governmental and nongovernmental organizations. See Sylvia T. Arzate and John Marcus, P.S. Docket No. MD 04-181 (I.D. February 28, 2005). According to such regulations, the Postal Service should deliver the disputed mail according to the order of the tribe’s “president or equivalent official.” See Del Rosa and Rose, Chrisman & Burrell, P.S. Docket No. MD 10-91 (citing Postal Operations Manual § 614.1).
In this case, the Business Committee is responsible for administration of most tribal matters (Finding 3). Its directly elected chairman presides at all Council and Business Committee meetings, and has general supervision over Business Committee affairs (Finding 3). Furthermore, both parties base their extensive arguments on their beliefs that the chairman possesses the power to direct the Kiowa Tribe’s mail. I find that the chairman of the Business Committee is the Kiowa Tribe’s equivalent position of president, within the meaning of the applicable postal regulations (Findings 2-3).[4] See Christine Walker and Matthew Leivas, Sr., P.S. Docket No. MD-153 (I.D. July 24, 1992, P.S.D. August 28, 1992) (“appropriate to deliver mail addressed to the Chemehuevi Indian Tribe in accordance with the direction of the Chairman of the tribe's duly elected governing body”); see also Sylvia T. Arzate and John Marcus, P.S. Docket No. MD 04-181 (I.D. February 28, 2005) (to the same effect). In order to determine which disputant possesses the superior claim to be recognized as the Business Committee chairman, I examine and interpret the Kiowa Tribe’s Constitution and its Hearing Ordinance. See Walker and Leivas, P.S. Docket No. MD-153.
The recall election was not authorized
Mr. Twohatchet was the directly elected chairman of the Business Committee prior to the July 16 recall election (Finding 3). Therefore, unless it is demonstrated that he was validly removed from that position, Mr. Twohatchet remains the proper recipient of the Kiowa Tribe’s mail.
Although the Business Committee voted not to refer the recall proposal to the Hearing Board for an election by the Council, the matter was appealed to the Hearing Board (Findings 12-13). As required, the Hearing Board then conducted an appeal hearing, with all 5 members present, to determine whether a recall election should be conducted (Finding 13).[5] However, the Hearing Board decided the appeal without all 5 members being present or part of the decision-making process (Finding 14). Aside from the controversy about the eligibility of 2 Hearing Board members, it is not disputed that a third Hearing Board member was not present when the recall appeal was decided, due to illness, and that he was not replaced (Finding 14).
The Hearing Board Ordinance not only requires that all 5 members participate during the hearing as a threshold jurisdictional matter, but it also specifically requires that all 5 members be present to decide the appeal. The Ordinance provides in this regard that “appeal decisions will be made by majority vote of five members present.” (Findings 10-11; Ordinance Art. X §12 (emphasis added)). I interpret this language to require that all 5 members must be present when appeal decisions are rendered.[6] As this did not occur, I find that the Hearing Board’s decision to conduct a recall election was without legal effect.
While contesting his opponent’s argument (in part based on allegations of fraud) that the 2 disputed Hearing Board members were ineligible, Mr. Poolaw does not appear to contest that if the Ordinance were applied, it was improper for the Hearing Board to decide the appeal without all 5 members present. However, Mr. Poolaw argues in his reply statement that the Hearing Board Ordinance itself is unenforceable because it was never voted on by the Council. He argues more specifically that the Kiowa Tribe Constitution requires only a quorum of 3, not all 5 Hearing Board members, be present to conduct business and that a permissible quorum of the Hearing Board decided the recall appeal. He argues that the Ordinance therefore conflicts with the Constitution, and that the Constitution must control.
Mr. Poolaw’s assertion is unsupported, and evidence concerning whether the Council acted in 2000 in this regard was not presented. More importantly, approval of a hearing ordinance is not a power reserved to the Council in the Kiowa Constitution. Further, the Ordinance was passed by the Business Committee, which appears to have acted within its authority (Finding 8). Moreover, I do not read the Ordinance’s requirement for all 5 Hearing Board members to decide a recall appeal to be inconsistent with the Constitution as Mr. Poolaw argues. I have been unable to identify a Constitutional establishment of a 3-member Hearing Board quorum, and Mr. Poolaw has not identified such a Constitutional provision. I find that the Kiowa Constitution is silent regarding the number of Hearing Board members that must decide a recall appeal. Therefore, the Ordinance’s requirement that all 5 Hearing Board members must be present does not conflict with the Constitution and is enforceable.[7]
Accordingly, I find that the Hearing Board’s decision to conduct the recall election was invalid. This is the case regardless of whether the 2 disputed members were eligible.
Because the recall election was not legally ordered by the Hearing Board, the resulting recall vote was ineffective to remove Mr. Twohatchet as elected chairman of the Business Committee. While this is a sufficient ground on which to rule in his favor, an additional practical reason supports that conclusion.
The appointment of Mr. Poolaw as Business Committee chairman was unauthorized in any event
It is apparent to me that even if the July recall election were effective, Ms. Artichoker as the sole remaining Business Committee member, lacked the authority to appoint Mr. Poolaw to the Business Committee as its chairman. I therefore would be unable to rule in Mr. Poolaw’s favor even if the recall election were enforceable.
In this regard, the Kiowa Constitution is clear that the Business Committee is not permitted to conduct business “of any nature” without a quorum (Finding 5). Ms. Artichoker, acting alone, did not constitute a quorum, which requires 5 members (Finding 5).
The Kiowa Constitution includes specific procedures which must be followed to fill Business Committee vacancies. This must be accomplished by election, not appointment (as these vacancies created in July would not have been within 60 days prior to the next scheduled June election). (Finding 6). Moreover, the Kiowa Constitution contemplates a situation (as would be present here if the recall election were valid) in which a quorum cannot be attained. In such cases, the Commissioner of Indian Affairs must call and supervise an election to bring the Business Committee up to full complement (Finding 7). It is clear to me that Mr. Poolaw’s appointment by Ms. Artichoker would not have been authorized, even if the recall election were enforceable.
Conclusion
Accordingly, I find it appropriate to award the mail to Mr. Twohatchet. I believe that it is Mr. Poolaw’s burden to demonstrate that Mr. Twohatchet was lawfully removed, see Arzate and Marcus, P.S. Docket No. MD 04-181, and that he has failed to do so.
This decision deals only with delivery of the mail. It does not determine ownership of the contents of the mail and does not attempt to resolve any underlying disputes 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. Postal Operations Manual § 616.3.
Recommended Order
This initial decision recommends that the Judicial Officer should issue an order directing the Carnegie Postmaster to release all held mail to Mr. Twohatchet and to deliver future mail addressed to the Kiowa Tribe of Oklahoma, at Post Office Box 369, Carnegie, OK 73015-0369, as addressed, for receipt by Mr. Twohatchet or as he otherwise directs.
Gary E. Shapiro
Administrative Judge
[1] Mr. Twohatchet maintains and Mr. Poolaw contests that 2 of the 5 Hearing Board members were ineligible to participate because their terms had expired. The disputants vehemently argue this issue including accusations of forgery and fraud. Because I resolve this mail dispute on other grounds, I need not navigate that particular quagmire. Similarly, it is unnecessary for me to resolve another heated dispute between the parties concerning the Election Board’s behavior following the Hearing Board’s direction to conduct a recall election, referenced in Finding 14.
[2] Ms. Artichoker’s statement purports to be an affidavit. However, while it was notarized, it was not sworn and is being given the reduced weight of an unsworn statement.
[3] Responses were due and were filed by the parties on November 21, 2011. On November 23, I received a letter from counsel for Mr. Twohatchet, in the nature of a sur-reply. On November 30, I received a responding letter from counsel for Mr. Poolaw, in the nature of a sur-sur-reply. Both letters have been considered although they address an issue which I do not reach.
[4] This is not the first time the Judicial Officer has been called upon to address a leadership dispute involving the Kiowa Tribe in a mail dispute. See Deborah S. Wilson and R.H. Bointy, P.S. Docket No. MD 04-19 (I.D. April 5, 2004).
[5] The parties vigorously dispute whether 2 Hearing Board members were eligible to participate. For purposes of this discussion, without deciding the issue, I assume that they were eligible and refer to them as Hearing Board members.
[6] Otherwise, the Ordinance would be expected to read that a “majority vote” of a “quorum [consisting] of three members present” decides the matter, as is the case for “meetings to conduct ordinary routine business . . . separately from appeal hearings.” (Ordinance Art. IX). In contrast, for recall appeal decisions, the Ordinance requires a majority vote of “five members present.”
[7] Where the Kiowa Constitution requires a majority of a quorum, it expressly so provides. For instance, in deciding whether to refer a recall proposal to the Hearing Board, the Business Committee is to decide by an affirmative vote “of a majority of the members of the committee.” (Const. Art. IV § 1). No such language appears in the Constitution for the Hearing Board’s decision. Furthermore, the requirement that all 5 members present must decide the appeal would seem to have sound policy behind it, and explains the Constitution’s inclusion of procedures for a temporary appointment of a Hearing Board member where necessary. As Hearing Board decisions are final and not subject to appeal, allowing a decision by a majority of a 3-person quorum could result in a binding recall appeal decision being issued by only 2 members (a minority of the full Hearing Board).