OF THE MUCKLESHOOT RESERVATION Later, but still early, examples of official recognition of the foregoing facts and the treaty status of the Indians of the Muckleshoot Reservation (whom the Government subsequently referred to as "Muckleshoot Indians" from the name of the reservation on which they had been located) are found in the "Report of the Commissioner of Indian Affairs to the Secretary of the Interior" of 1860 ("White River has a large tributary, called Green River, and between these two streams, seven miles from the fork is the Mucklechute Reservation. This reservation is secured to the Indians, parties to the treaty of Medicine Creek, but is not in the territory ceded by them, has never been occupied for their use ***. On the other hand, it is in the limits of the territory ceded by the treaty of Point Elliott. The Indians living there, and in the vicinity, are parties to that treaty ** ** at 193), 1867 ("The Point Elliott Treaty *** consists of the Tu-la-lip, Surinmish, Lummi, Post [sic] Madison, and Muckleshoot Reservations," at 30), 1870 (at page 17), 1871 "(The reservations under this treaty [of Point Elliott] are Tulalip, Port Madison, Lummi, Surnomish, and Muckleshoot ***" at 272) and 1872 at 272) and 1872 "(The D'Wamish and other allied tribes number 3600 and have five reservations, containing in all 41,716 acres, set apart by treaty made with them in 1855 ***." at 60.) The extensive, thorough research of Dr. Barbara Lane, the anthropologist referred to above, conforms the consistent position of this Department that the vast majority of the Indians placed on the Muckleshoot Reservation were White and Green River Indians who were identified in the preamble to the Treaty of Point Elliott as the Skopamish, Stkamish, and Smulkamish Bands of the Duwamish Indians. The remaining Indians placed upon the Muckleshoot Reservation were from tribes or bands that were parties to the Medicine Creek Treaty. Since the fishing rights provisions of the two treaties are essentially identical, it is our view that the consolidated groups of Indians placed upon the Muckleshoot Reservation and now reorganized under the name of "The Muckleshoot Indian Tribe of the Muckleshoot Reservation" pursuant to 25 U.S.C. § 476 (1970), presently retain a treatysecured right to fish at the usual and accustomed places of the villages and bands that were removed to that reservation. The Secretary of the Interior and his delegates are charged in broad terms with the functions, duties and obligations to execute the Federal guardianship of the Indians and the management of Indian Affairs. 25 U.S.C. § 2 (1970); 43 U.S.C. § 1457 (1970); Reorganization Plan 3 of 1950, 64 Stat. 1262, 43 U.S.C. § 1451 (1970), note following. The regulation providing for the issuance of treaty fishing identification cards was issued pursuant to the authority of 25 U.S.C. § 2 (1970). Exercise of all appropriate powers to execute what has been called the Federal guardianship of the Indians has been many times sustained without any additional specific statute authorizing the particular action. In Armstrong v. United States, 306 F. 2d 520 (10th Cir. 1962), the court said (p. 522): The United States, by virtue of its status as guardian, is responsible for the protection of the Indians on a reservation so long as they are wards of the government. United States v. Sandoval, 231 U.S. 28, 46, 34 S. Ct. 1, 58 L.Ed. 107; Choctaw Nation v. United States, 119 U.S. 1, 27, 7 S. Ct. 75, 30 L.Ed. 306; United States v. Kagama, 118 U.S. 375, 6 S. Ct. 1109, 30 L. Ed. 228, Congress has provided: "The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian affairs and of all matters arising out of Indian relations." Rev. Stat. § 463 (1875), 25 U.S.C.A. § 2. This statute furnishes broad authority for the supervision and management of Indian affairs and property commensurate with the obligation of the United States. United States v. Birdsall, 233 U.S. 233, 34 S. Ct. 512, 58 L.Ed 930; United States v. Ahtanum Irrigation Dist., 9 Cir., 236 F.2d 321, cert. denied, 352 U.S. 988, 77 S. Ct. 386, 1 L.Ed.2d 367; United States v. Anglin & Stevenson, 10 Cir., 145 F.2d 622, 628, cert. denied, 324 U.S. 844, 65 S. Ct. 678, 89 L.Ed. 1405; Rainbow v. Young, 8 Cir. 161 F. 835. See United States ex rel. West v. Hitchcock, 205 U.S. 80, 84, 27 S. Ct. 423, 51 L.Ed. 718 * * * Justice Van Devanter, then Circuit Judge, in Rainbow v. Young, 161 F. 835 (8th Cir. 1908), when sustaining the authority of the Secretary of the Interior to exclude collectors from a reservation on the day payments were to be made to the Indians, referred to R.S. 441 and 463 to R.S. 2058, defining the general duties of the Indian agents and to R.S. 2149 as to removal of persons from Indian reservations, and said (p. 838): No other statute imposes any limitation applicable here upon the exercise of the authority so given to the Commissioner, and upon this record it cannot reasonably be doubted that the [C]ommissioner, in giving to the superintendent the direction before named, acted with the approval of the Secretary of the Interior. *** [Citations omitted] In our opinion the very general language of the statutes makes it quite plain that the authority conferred upon the Commissioner of Indian Affairs was intended to be sufficiently comprehensive to enable him, agreeably to the laws of Congress and to the supervision of the President and the Secretary of the Interior, to manage all Indian affairs, and all matters arising out of the Indian relations, with a just regard, not merely to the rights and welfare of the public, but also to the rights and welfare of the Indians, and to the duty of care and protection owing to them by reason of their state of dependency and tutelage. Illustrative of the same approach is United States v. Birdsall, 233 U.S. 223 (1914), holding that, despite the absence of written rule or regulations authorizing the Commissioner to make recommendations concerning sentences for convictions of violation of the laws covering liquor traffic with the Indians, bribery to influence action in the making of such recommendations was a violation of the statute punishing bribery to influence official action. And in Parker, Supt. Five OF THE MUCKLESHOOT RESERVATION Civilized Tribes v. Richard et al., (p. *** In the absence of some provision to the contrary the supervision naturally falls to the Secretary of the Interior. Rev. Stat. §§ 441, 463. See also United States ex rel West v. Hitchcock, 205 U.S. 80, 85 (1907); cf. Catholic Bishop of Nesqually v. Gibbon, 158 U.S. 155, 166 (1895); United States v. Barnsdall Oil Co., 127 F.2d 1019, 1021 (C.A. 10, 1942). In Rainbow, supra, Justice Van Devanter had quoted from United States v. Macdaniel, 10 U.S. (7 Pet. 1) 376, 380 (1833), that (pp. 14-15): A practical knowledge of the action of any one of the great departments of the government, must convince every person that the head of a department, in the distribution of its duties and responsibilities, is often compelled to exercise his discretion. He is limited in the exercise of his powers by the law; but it does not follow that he must show a statutory provision for every thing he does. No government could be administered on such principles. To attempt to regulate by law the minute movements of every part of the complicated machinery of government, would evince a most unpardonable ignorance on the subject. Whilst the great outlines of its movements may be marked out, and limitations imposed on the exercise of its powers there are numberless things which must be done, that can neither be anticipated nor defined, and which are essential to the proper action of the government. In Federal Indian Law (1958 Ed.), these basic principles are summarized as follows: (p. 49) "Federal administrative power over Indian affairs, vested in the Secretary of the Interior, is virtually allinclusive." (pp. 51-52) "*** Discretionary power to act in situations not specifically provided for, often is lodged in the Secretary." In conclusion, we advise you that the issuance of 25 CFR 256.3 was an authorized exercise of the Secretary's duties and obligations of Federal guardianship of Indians and management of Indian affairs, and that the authorization for issuance of treaty fishing identification cards to members of the Muckleshoot Indian Tribe is obligatory under such regulations because that tribe has fishing rights secured by the Treaties of Point Elliott and Medicine Creek. WILLIAM A. GERSHUNY, Associate Solicitor. U.S. GOVERNMENT PRINTING OFFICE: 1973 March 19, 1973 AFFINITY MINING COMPANY 2 IBMA 57 Decided March 19, 1973 Appeal from a decision of Chief Administrative Law Judge Hom, dated October 4, 1972, dismissing a civil penalty assessment proceeding (Docket No. HOPE 72-200-P) initiated against Affinity Mining Company by the Bureau of Mines pursuant to section 109 (a) (1) of the Federal Coal Mine Health and Safety Act of 1969. Affirmed as modified. Federal Coal Mine Health and Safety Act of 1969: Penalties: Penalty Against Operator More than one person may fall within the Act's definition of "operator," but the proper party to be held liable for penalties is the operator responsible for the violations and liable for the health and safety of its employees even though such operator is an independent contractor. Federal Coal Mine Health and Safety Act of 1969: Penalties: Penalty Against Operator The Bureau of Mines has the initial dis-cretion in serving orders and notices; however, since the question of the responsible operator is a factual determination, the Bureau's discretion must be subject to and withstand the scrutiny of administrative review. APPEARANCES: Robert W. Long, Associate Solicitor, J. Philip Smith, Assistant Solicitor, Madison McCulloch, Trial Attorney, in behalf of the appellant, U.S. Bureau of Mines; Thomas E. Boettger, Esquire, in behalf of appellee, Affinity Mining Company; Lynn D. Poole, Esquire, in behalf of amicus curiae, Bituminous Coal Operators' Association. OPINION BY THE BOARD INTERIOR BOARD OF MINE OPERATIONS APPEALS On February 3, 1972, a civil penalty proceeding was initiated by the Bureau of Mines (hereinafter Bureau) pursuant to the provisions of section 109 of the Federal Coal Mine Health and Safety Act of 1969 (hereinafter the Act). The procedural and factual background is adequately set forth in the decision of the Administrative Law Judge at 2 IBMA 63. An appeal to that decision was filed by the Bureau on October 24, 1972. On November 9, 1972, Bituminous Coal Operators" Association (hereinafter BCOA) petitioned for leave to participate as amicus curiae which was granted by Order of the Board dated November 15, 1972. Timely briefs were filed by all of the parties, including Affinity Mining Company (hereinafter Affinity), and upon the Board's own motion oral argument was ordered on January 9, 1973, and held January 26, 1973. Contentions of the Parties The Bureau contends (1) that Affinity is the proper party to the proceedings as the one and only operator of the coal mine; and (2) in 1 P.L. 91-173, 83 Stat. 742-804, 30 U.S.C. §§ 801-960 (1970). The Judge's decision follows at 2 IBMA 63, SO. I.D. 231.... 80 I.D. No. 3 |