March 11, 2015
In the Matter of a Mail Dispute between
DARREN ROSE and WENDY DEL ROSA
P.S. Docket No. MD 14-391
APPEARANCES FOR DISPUTANT DARREN ROSE:
Ross D. Colburn, Esq.
John M. Peebles, Esq.
James Qaqundah, Esq.
Fredericks Peebles & Morgan LLP
APPEARANCES FOR DISPUTANT WENDY DEL ROSA:
Lester J. Marston, Esq.
Scott Johnson, Esq.
Rapport and Marston
The Judicial Officer has been tasked for the second time with resolving conflicting claims for the Alturas Indian Rancheria Tribe’s (the Tribe) mail. The disputants - Darren Rose and Wendy Del Rosa – both assert the right to receive the Tribe’s mail addressed to Post Office Box 340, Alturas, California 96101.
After the Postal Service’s Western Area Law Office forwarded the dispute to the Judicial Officer on November 20, 2014, the Judicial Officer directed the Alturas Postmaster to hold the mail until resolution of this mail dispute. Following several rounds of submissions from the parties, I closed the record on March 9, 2015.
FINDINGS OF FACT
The Tribe’s chaotic governance is mired in continual litigation. Allegations of fraud, embezzlement, forgery, and perjury abound even within this administrative case dealing only with mail delivery. The disputants have been unable to agree to suspension of action of this mail dispute, to a third party receiver, or to any other alternative arrangement for delivery of the Tribe’s mail.
Ms. Del Rosa challenges this office’s jurisdiction to resolve this mail dispute. Citing federal case law, she argues that disputes involving the Tribe’s membership can be resolved only by the sovereign Tribe itself, and that neither courts nor federal agencies are empowered to resolve such disputes. Mr. Rose counters that this office is the appropriate authority to resolve entitlement to the mail.
In the appeal of Alturas I, the Judicial Officer, who is my appellate authority, described the law in this regard:
In the absence of an agreement by the parties to suspend action on the mail dispute, neither the presiding officer nor the Judicial Officer
has the authority to decline to make a decision. . . .
Alturas I (P.S.D. Aug. 4, 2010) at 2. See also Ronald D. Twohatchet and Bruce Dean Poolaw, P.S. Docket No. MD 11-264 at 8 (I.D. Dec. 5, 2011), finalized, (P.S.D. Feb. 1, 2012) (“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 status, we will do so.”); Dennis J. Bowen and Karen Bucktooth, P.S. Docket No. MD 95-59 (I.D. May 24, 1995) (“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.”); 39 C.F.R. §§ 965.11-12; Domestic Mail Manual § 1.5.1; Postal Operations Manual § 616.21.3
Because the Tribe seems incapable of resolving its own membership disputes, I cannot reach the decision required of me without examining the General Council’s membership. As I emphasized in Alturas I and throughout the present dispute, however, my role and that of the Judicial Officer is limited only to directing the Alturas Postmaster regarding delivery of the Tribe’s mail. In doing so, I fulfill the authority and interest of this office of resolving mail disputes so that the Postal Service can complete its mission to deliver the mail.
Contentions of the disputants
Darren Rose contends that the General Council’s voting-eligible membership consists of himself, Wendy Del Rosa, Phillip Del Rosa, Alyssa Rose (Mr. Rose’s adult daughter), and as of September 24, 2014, his daughter, Callie Rose. He asserts that when the General Council provided direction to the postmaster (on September 8, 2014) that precipitated this mail dispute, three of the four members (all except Disputant Wendy Del Rosa) authorized him to receive the Tribe’s mail.4
Wendy Del Rosa contends that the General Council’s voting-eligible membership consists of herself, Darren Rose, Calvin Phelps, and Joseph Burrell.5 She asserts that three of those four members (all except Disputant Darren Rose) authorized her to receive the Tribe’s mail. Accordingly, the parties agree only that the named disputants – Wendy Del Rosa and Darren Rose – are eligible to vote in General Council decisions (Finding 9).
As I explained in Alturas I, postal regulations do not address specifically mail delivery to Indian tribes, and this office applies postal delivery regulations otherwise applicable to governmental and nongovernmental organizations. Postal Operations Manual § 614.1. As applied to tribes, those regulations require that we direct the mail to be delivered to a tribe’s president or equivalent position. As the Tribe does not have such a position (Finding 1), the authorized designation by the General Council as the Tribe’s governing body controls (Finding 2). Alturas I at 8.
As explained below, I conclude that as of September 8, 2014, Alyssa Rose was a member of the General Council, and Calvin Phelps and Joseph Burrell were not. The parties dispute whether the Tribe effectively revoked Phillip Del Rosa’s right to vote in October 2013 and if so, whether the Tribe later reversed that decision. Because it would not affect the result in this case (Finding 7), I need not address Phillip Del Rosa’s authority to vote as a General Council member.
As of November 2011, Calvin Phelps was not a Tribe member (Finding 5; see also Alturas I at 9-10). While Ms. Del Rosa argues that the Tribe subsequently enrolled him, she has not shown any action by the General Council enrolling Mr. Phelps. This Tribe enacted a remarkably high number of resolutions, many of which are included in the record of this case. Had the Tribe taken as significant an action as enrolling Calvin Phelps as a new member (even if he were eligible, a disputed issue on which I offer no opinion) and providing him a land assignment as the Tribe’s Constitution would require, I would expect to see resolutions to that effect.
Ms. Del Rosa argues that the Tribe treated Calvin Phelps as a member, allowed him to vote many times in General Council matters, and distributed money and benefits to him in resolutions after 2011 which refer to Mr. Phelps as a member. Mr. Rose counters that he objected but did not stop those actions for fear of adverse action, such as dis-enrollment proceedings, being taken against him. He also argues that the Tribe’s Constitution does not authorize membership-by-estoppel, and that Mr. Phelps’ imprisonment disqualifies him from voting in General Council decisions.
It has become clear to me that the disputants and others involved in the Tribe’s governance will act in whatever manner seems expedient to them at the moment, depending on the situation at the time amid continually shifting alliances. Considering the totality of the record under these circumstances, I find the absence of a formal enrollment action the most persuasive evidence regarding Mr. Phelps’ lack of enrollment after November 2011. I conclude that Calvin Phelps is not a member of the General Council for purposes of this mail dispute.
The parties agree and I have found that Joseph Burrell relinquished his membership from the Tribe in 2012 (Finding 6). The parties dispute which version of Mr. Burrell’s membership relinquishment agreement is valid amid mutual accusations of forgery and fraud, a dispute which I find irrelevant to my decision. Ms. Del Rosa offers similar arguments to those she presented regarding Calvin Phelps’ alleged enrollment, suggesting that Joseph Burrell and the Tribe subsequently agreed to re-enroll him, permitted him to vote in General Council decisions, and distributed money and benefits to him in resolutions referring to Mr. Burrell as a member after his disenrollment. Mr. Rose presents the same counter-explanation as before.
Even though one of the two proffered versions of Mr. Burrell’s membership relinquishment agreement specifically allowed him to re-enroll upon mutual agreement with the Tribe, the otherwise-comprehensive record of this mail dispute does not include a General Council resolution re-enrolling Joseph Burrell by mutual agreement. As I concluded regarding Mr. Phelps’ situation, I find the absence of a formal re-enrollment agreement or resolution persuasive. See Alturas I at 10 (“I find the lack of an ordinance or other formal adoption of new tribal members (at least in the record before me), which would be expected had the applicants been admitted, to be persuasive.”). I discount the parties’ behavior seemingly to the contrary for the same reasons explained above.
In contesting Alyssa Rose’s General Council membership, the parties argue extensively about whether Darren Rose was issued a land assignment under Article III, Section 1(b) of the Tribe’s amended Constitution. It appears that Ms. Del Rosa raises the land assignment issue in an effort to show that Mr. Rose is not a General Council member, and that as a result, his daughter is not a member. However, I view the land assignment debate as irrelevant to my decision because the parties agree, clearly and undisputedly, that Darren Rose presently is a General Council member (Findings 5, 9).
The Tribe’s amended Constitution is clear that descendants of all members become members themselves at age eighteen (Finding 4). The Constitution does not require additional action by the General Council to enroll a descendent of a member. Indeed the Tribe’s Constitution was amended specifically to authorize membership for Mr. Rose’s children (Findings 3-4). Therefore, at the time that Darren Rose was authorized to receive the Tribe’s mail (Finding 7), Alyssa Rose who had reached age eighteen, was a General Council member.
General Council membership and designation
For purposes of this mail dispute, I conclude that as of September 8, 2014 the voting-eligible General Council membership consisted of Wendy Del Rosa, Darren Rose and Alyssa Rose (and I offer no opinion regarding Phillip Del Rosa, who signed Darren Rose’s mail recipient authorization as well). Mr. Rose therefore has shown either that that two of the three General Council members (himself and Alyssa Rose), or three of the four General Council members (if I were to determine that Phillip Del Rosa were eligible to vote) authorized delivery of the Tribe’s mail to him at that time. Ms. Del Rosa has shown only her own opposition as a General Council member to that designation.
Accordingly, as authorized by a majority of the General Council, Darren Rose is entitled to direct delivery of the Tribe’s mail. This decision deals only with mail delivery. It does not determine ownership of the contents of the mail and does not attempt to resolve underlying disputes between the parties. If a subsequent court order directs delivery of the mail, postal regulations provide that the mail will be delivered according to that order. Postal Operations Manual § 616.3.
This Initial Decision therefore recommends that the Judicial Officer issue an order directing the Alturas Postmaster to deliver the Tribe’s held mail and future mail addressed to it at Post Office Box 340, Alturas, California 96101 to Darren Rose as he directs.
Gary E. Shapiro
1 Phillip Del Rosa is Wendy Del Rosa’s brother (W. Del Rosa Declaration ¶ 8). Joseph Burrell is Jennifer Chrisman’s brother (W. Del Rosa Declaration ¶ 91). Calvin Phelps is incarcerated in federal prison in West Virginia for fraud and other offenses (Rose Declaration ¶ 46; Exh. 15).
2 On December 29, 2014, Darren Rose and Phillip Del Rosa modified the September 8 direction by identifying Mr. Rose as possessing sole authority to receive mail at Post Office Box 340 and requesting any mail addressed to the Tribe elsewhere to be forwarded to the Running Bear Road address (Rose Declaration ¶ 92; Exh. 36).
3 C.f. Alturas Indian Rancheria, Phillip Del Rosa, Wendy Del Rosa, Calvin Phelps, and Donald Packingham v. Acting Pacific Regional Director, Bureau of Indian Affairs, 54 Interior Board of Indian Appeals 1 (Aug. 5, 2011), at pp. 11, 14 n.15 (although the ultimate determination of tribal governance must be left to tribal procedures, it is appropriate for the Department of the Interior to exercise discretion to recognize tribal officials amidst membership or leadership disputes where necessary for the Department to deal with the tribe on government-to-government matters because the BIA may not be responsible for creating a hiatus in the delivery of government services to tribal members).
4 While Mr. Rose asserts that after Callie Rose reached majority on September 24, 2014, she also authorized him to receive the mail, providing a 4/5 General Council majority, see Rose Declaration ¶ 7, he has not provided documentary or testimonial support for that conclusion. Callie Rose’s declaration does not say that she has voted or how she would vote regarding the Tribe’s mail recipient (February 9, 2015 Declaration of Callie Rose). Therefore, I am unable to conclude on this record that Callie Rose authorized Darren Rose to receive the mail.
5 Ms. Del Rosa maintains that her brother, Phillip Del Rosa, is a non-voting member.