Slike strani


February 22, 1973

Later, but still early, examples of the consistent position of this Deofficial recognition of the foregoing partment that the vast majority of facts and the treaty status of the the Indians placed on the MuckleIndians of the Muckleshoot Reser- shoot Reservation were White and vation (whom the Government sub- Green River Indians who were sequently referred to as "Muckle- identified in the preamble to the shoot Indians" from the name of the Treaty of Point Elliott as the reservation on which they had been Skopamish, Stkamish, and Smullocated) are found in the "Report of kamish Bands of the Duwamish Inthe Commissioner of Indian Affairs dians. The remaining Indians to the Secretary of the Interior" of placed upon the Muckleshoot Res1860 (“White River has a large trib- ervation were from tribes or bands utary, called Green River, and be that were parties to the Medicine tween these two streams, seven miles Creek Treaty. from the fork is the Mucklechute Since the fishing rights provisions Reservation. This reservation is se- of the two treaties are essentially cured to the Indians, parties to the identical, it is our view that the contreaty of Medicine Creek, but is not solidated groups of Indians placed in the territory ceded by them, has upon the Muckleshoot Reservation never been occupied for their use and now reorganized under the ***. On the other hand, it is in the name of “The Muckleshoot Indian limits of the territory ceded by the Tribe of the Muckleshoot Reservatreaty of Point Elliott. The Indians tion” pursuant to 25 U.S.C. $ 476 living there, and in the vicinity, are (1970), presently retain a treatyparties to that treaty ***” at 193), secured right to fish at the usual and 1867 (“The Point Elliott Treaty accustomed places of the villages *** consists of the Tu-la-lip, Surin- and bands that were removed to that mish, Lummi, Post [sic] Madison, reservation.

, and Muckleshoot Reservations," at

The Secretary of the Interior and 30), 1870 (at page 17), 1871 "(The his delegates are charged in broad reservations under this treaty [of terms with the functions, duties and Point Elliott] are Tulalip, Port obligations to execute the Federal Madison, Lummi, Surnomish, and guardianship of the Indians and the Muckleshoot ***" at 272) and 1872 management of Indian Affairs. 25 “(The D'Wamish and other allied

U.S.C. $ 2 (1970); 43 U.S.C. $ 1457 tribes number 3600 and have five

(1970); Reorganization Plan 3 of reservations, containing in all 41,716 1950, 61 Stat. 1262, 43 U.S.C. $ 1451 acres, set apart by treaty made with

(1970), note following. The regulathem in 1855 ***." at 60.)

tion providing for the issuance of The extensive, thorough research treaty fishing identification cards of Dr. Barbara Lane, the anthro- was issued pursuant to the authority pologist referred to above, con forms of 25 U.S.C. & 2 (1970). Exercise of

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all appropriate powers to execute day payments were to be made to what has been called the Federal the Indians, referred to R.S. 4+1 guardianship of the Indians has and 463 to R.S. 2058, defining the been many times sustained without general duties of the Indian agents any additional specific statute au- and to R.S. 2149 as to removal of thorizing the particular action. In persons from Indian reservations, Armstrong v. United States, 306 F. and said (p. 838) : 2d 520 (10th Cir. 1962), the court

No other statute imposes any limitation said (p. 522):

applicable here upon the exercise of the

authority so given to the Commissioner, The United States, by virtue of its status as guardian, is responsible for the

and upon this record it cannot reasonably

be doubted that the [C]ommissioner, in protection of the Indians on a reservation

giving to the superintendent the direction so long as they are wards of the govern

before named, acted with the approval of ment. United States v. Sandoval, 231 U.S.

the Secretary of the Interior. *** (Cita28, 46, 34 S. Ct. 1, 58 L.Ed. 107; Choctauo

tions omitted] Nation v. United States, 119 U.S. 1, 27, 7 S. Ct. 75, 30 L.Ed. 306; United States v. In our opinion the very general lanKagama, 118 U.S. 375, 6 S. Ct. 1109, 30 L. guage of the statutes makes it quite Ed. 228, Congress has provided : “The plain that the authority conferred upon Commissioner of Indian Affairs shall, the Commissioner of Indian Affairs was under the direction of the Secretary of intended to be sufficiently comprehenthe Interior, and agreeably to such regu- sive to enable him, agreeably to the laws lations as the President may prescribe, of Congress and to the supervision of the have the management of all Indian affairs President and the Secretary of the Inteand of all matters arising out of Indian rior, to manage all Indian affairs, and relations." Rev. Stat. $ 463 (1875), 25 all matters arising out of the Indian U.S.C.A. $ 2. This statute furnishes broad relations, with a just regard, not merely authority for the supervision and man- to the rights and welfare of the public, agement of Indian affairs and property but also to the rights and welfare of the commensurate with the obligation of the Indians, and to the duty of care and proUnited States. United States v. Birdsall, tection owing to them by reason of their 233 ('.S. 233, 34 S. Ct. 512, 58 L.Ed 930; state of dependency and tutelage. United States v. Ahtanum Irrigation Illustrative of the same approach Dist., 9 Cir., 236 F.2d 321, cert. denied,

is United States v. Birdsall, 233 352 U.S. 988, 77 S. Ct. 386, 1 L.Ed.2d 367 ; United States v. Anglin & Stevenson, 10 U.S. 223 (1914), holding that, deCir., 145 F.2d 622, 628, cert. denied, 324 spite the absence of written rule or U.S. 814, 65 S. Ct. 678, 89 L.Ed. 1405 ;

regulations authorizing the ComRainbove v. Young, 8 Cir. 161 F. 835. See

missioner to make recommendations United States er rel. TV est v. Hitchcock, 20.5 V.S. 80, 84, 27 S. Ct. 423, 51 L.Ed.

concerning sentences for convictions 718 * *

of violation of the laws covering Justice Van Deranter, then Cir- liquor traffic with the Indians.

, cuit Judge, in Rainbow v. Young, bribery to influence action in the 161 F. 835 (8th Cir. 1908), when

making of such recommendations sustaining the authority of the Sec- was a violation of the statute punretary of the Interior to exclude ishing bribery to influence official collectors from a reservation on the action. Ind in Parker, Supt. Five

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February 22, 1973


Civilized Tribes v. Richard et al., most unpardonable ignorance on the subAdmrs., 250 U.S. 235 (1919), as to

ject. Whilst the great outlines of its

movements may be marked out, and limisupervision of lease income of re

tations imposed on the exercise of its stricted Indian lands, Justice Van

powers there

numberless things Devanter briefly remarked (p. which must be done, that can neither be 240):

anticipated nor defined, and which are

essential to the proper action of the * * * In the absence of some provision

government. to the contrary the supervision naturally falls to the Secretary of the Interior.

In Feileral Indian Law (1938 Rev. Stat. $$ 441, 463.

Ed.), these basic principles are See also United States ex rel West summarized as follows: (p. 49) v. Hitchcock, 205 U.S. 80, 85

"Federal administrative power over (1907); cf. Catholic Bishop of Nes

Indian atlairs, vested in the Secrequally v. Gibbon, 158 U.S. 155, 166 tary of the Interior, is virtually all(1895); United States v. Barnsdall inclusive.” (pp. 51–52) «* * * DisOil Co., 127 F.2d 1019, 1021 (C.A. cretionary power to act in situations 10, 1942).

not specifically provided for, often In Rainbow, supra, Justice Van is lodged in the Secretary.” Devanter had quoted from United In conclusion, we advise you that States V. Macdaniel, 10 U.S. (7 the issuance of 25 CFR 256.3 was Pet. 1) 376, 380 (1833), that (pp. an authorized exercise of the Secre1+-15):

tary's duties and obligations of A practical knowledge of the action of

Federal guardianship of Indians any one of the great departments of the and management of Indian affairs, government, must convince every person and that the authorization for isthat the head of a department, in the suance of treaty fishing identificadistribution of its duties and responsibil

tion cards to members of the ities, is often compelled to exercise his

Muckleshoot Indian Tribe is obligadiscretion. He is limited in the evercise of his powers by the law; but it tory under such regulations because does not follow that he must show a that tribe has fishing rights secured statutory provision for every thing he

by the Treaties of Point Elliott and does. No government could be adminis

Medicine Creek. tered on such principles. To attempt to regulate by law the minute movements

WILLIAM A. GERSHUNY, of every part of the complicated machinery of government, would evince a

Associate Solicitor.


March 19, 1973



behalf of amicus curiae, Bituminous Coal Operators' Association.

2 IBMA 57

OPINION BY THE BOARD Decided March 19, 1973 INTERIOR BOARD OF MINE Appeal from a decision of Chief OPERATIONS APPEALS Administrative Law Judge Hom, dated October 4, 1972, dismissing a

On February 3, 1972, a civil pencivil penalty assessment proceeding alty proceeding was initiated by the (Docket No. HOPE 72–200_P) initi

Bureau of Mines (hereinafter Buated against Affinity Mining Company

reau) pursuant to the provisions of by the Bureau of Mines pursuant to

section 109 of the Federal Coal section 109(a) (1) of the Federal Coal

Mine Health and Safety Act of 1969 Mine Health and Safety Act of 1969.

(hereinafter the Act). The pro

cedural and factual background is Affirmed as modified.

adequately set forth in the decision Federal Coal Mine Health and Safety

of the Administrative Law Judge at Act of 1969: Penalties: Penalty

2 IBMA 63.2 'An appeal to that deciAgainst Operator

sion was filed by the Bureau on More than one person may fall within the

October 24, 1972. On November 9, Act's definition of “operator," but the

1972, Bituminous Coal Operators' proper party to be held liable for penalties is the operator responsible for the viola

Association (hereinafter BCOA) tions and liable for the health and safety petitioned for leave to participate of its employees even though such opera- as amicus curiae which was granted tor is an independent contractor.

by Order of the Board dated NoFederal Coal Mine Health and Safety vember 15, 1972. Timely briefs were Act of 1969: Penalties: Penalty filed by all of the parties, including Against Operator

Affinity Mining Company (hereinThe Bureau of Mines has the initial dis- after Affinity), and upon

the cretion in serving orders and notices; Board's own motion oral argument however, since the question of the re

was ordered on January 9, 1973, and sponsible operator is a factual determination, the Bureau's discretion must be sub

held January 26, 1973. ject to and withstand the scrutiny of

Contentions of the Parties administrative review, APPEARANCES: Robert W. Long, The Bureau contends (1) that AfAssociate Solicitor, J. Philip Smith, finity is the proper party to the Assistant Solicitor, Madison McCul

proceedings as the one and only oploch, Trial Attorney, in behalf of the

erator of the coal mine; and (2) in appellant, U.S. Bureau of Mines; Thomas E. Boettger, Esquire, in be

1P.L. 91-173, 83 Stat. 742-804, 30 U.S.C. half of appellee, Affinity Mining Com

$ $ 801-960 (1970).

2 The Judge's decision follows at 2 IBMA 63, pany; Lynn D. Poole, Esquire, in

SO I.D. 231.

80 I.D. No. 3

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