SECRETARY OF LABOR
Complainant,

v.

COEUR d'ALENE TRIBAL FARM,
Respondent

OSHRC Docket Nos. 78-6081 & 78-6082


DECISION

Before: ROWLAND, Chairman; CLEARY, Commissioner.
BY THE COMMISSION:

The primary question in this case is whether the Occupational Safety and Health Act (the Act)[[1]] applies to a commercial farm of the Coeur d'Alene Indian tribe located on that tribe's reservation land. Judge Ervin L. Stuler found on remand that the Act did apply and granted the Secretary of Labor's (Secretary) summary judgement motion, affirming two citations issued to the Coeur d'Alene Tribal Farm (the Farm) and assessing $185 in penalties. We find that the Act does not apply and therefore reverse the judge and vacate the citations.

I

The Coeur d'Alene Tribal Farm in a commercial enterprise of the Coeur d'Alene Indian tribe. The Farm produces grains and lentils exclusively for sale on the open market. It lies within the boundaries of the tribe's reservation on land either owned by the tribe or leased from Indian owners and includes grain storage facilities at Tensed and Worley Idaho.

The Secretary conducted inspections of the Tensed and Worley grain storage facilities on October 5 and 6, 1978. Following those inspections, an eleven-item citation with a total proposed penalty of $185 was issued pertinent to the Tensed facilities (OSHRC Docket No. 78-6081) and a two-item citation, with no proposed penalties was issued pertinent to the facilities at Worley (OSHRC Docket No. 78-6082). The Farm contested both citations and the case was assigned to Judge Stuller. The parties agreed to waive a hearing and proceed on a joint statement of facts with appended exhibits.[[2]]

The parties subsequently filed cross summary judgment motions stating that all factual and legal issues necessary to affirm the citations had been resolved with the exception of the legal issues of whether the Secretary had jurisdiction over the Farm as an entity of the Coeur d'Alene Indian tribe and whether the inspections of the Farm facilities, conducted without a warrant, were lawful.

On May 20, 1980, Judge Erwin L. Stuller issued his first decision in the case. He granted the Secretary's summary judgment motion, denied the Farm's summary judgment motion, and affirmed the citations and proposed $185 penalty. In determining that the Secretary had jurisdiction over the Farm and its grain storage facilities, the judge relied on the principle enunciated in Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99 (1960) (Tuscarora), that a federal statute of general applicability is applicable to Indians even though they are not expressly mentioned. The judge also found that the totality of circumstances surrounding the Secretary's inspection indicated that the Maria voluntarily consented to the inspection.

The Farm petitioned for review and review was directed on whether the judge erred in ruling that the Farm was subject to the Act and an whether the Act to applicable to a business enterprise of an Indian tribal government that employs non-Indian employees.

In the Commission's first decision in this case, [[3/]] the Commission noted that it had recently decided similar issues in Navajo Forest Products Industries, 80 OSAHRC 98/A2, 8 BNA OSHC 2094, 1980 CCH OSHD 24,822 (No. 76-5013, 1980) (NFPI) . in that case the Commission determined that the Act could not be applied in a manner inconsistent with the treaty rights of an Indian tribe and found that Navajo Forest Products Industries (NM), an enterprise of the Navajo tribal government, was not subject to the Act because the Navajo tribe's treaty with the United States reserved to the tribe the general right of or self- government. This general right was reinforced by a specific right granted in the treaty to exclude outsiders from the reservation.

Because the Commission observed factual differences between NFPI and the instant case, however, the Commission did not issue a final decision. Instead, it remanded the case, granting the parties the opportunity to argue the significance of the factual distinctions and permitting the judge to reopen the record for the presentation of additional evidence in light of NFPI. The Commission ordered the judge to reconsider the case in light of NFPI and any new arguments and evidence. On remand, the parties filed a supplement to the initial statement of facts, additional briefs, and renewed their summary judgment motions.

By decision of February 16,1982, the judge reaffirmed his earlier decision. He stated that the Farm admitted there were factual differences between this cause and NFPI. In NFPI, the Navajo tribe had entered into a treaty with the United States which contained a specific provision for the exclusion of non-Indiana from the Navajo reservations. In this case, the Coeur d'Alene tribe has no treaty with the United States and has no specific agreement with the United States granting the tribe the right to exclude non- Indians from its reservation. Judge Stuller found these factual differences "fatal to the Respondent's case."

The Farm again petitioned for review and review was directed on whether the judge erred in granting the Secretary's summary judgment motion and in distinguishing this case from NFPI on the bases that (1) a treaty relation does not exist between the United States and the Coeur d'Alene tribe, and (2) the agreement between the tribe and United States does not specifically exclude non-Indians from the tribal reservation. [[4]]

II

A

The Farm contends that Indian tribes possess powers of limited sovereignty which are retained until Congress explicitly removes them. It asserts that tribes "possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status," citing United States v. Wheeler, 435 U.S. 313, 323 (1978).

The Commission's decision in NFPI, the Farm argues, recognized that Congress would not abrogate tribal sovereignty without expressing its intent to do so:

[W]e conclude that NFPI, as an enterprise established and operated by the tribe within the reservation, represents an exercise of the Navajo tribe's sovereignty. Because we have also decided that the Act does not abrogate the tribe's rights under the Treaty, and therefore cannot be applied in a manner that would detract from the tribe's sovereignty, we conclude that NFPI is not subject to the Act.

8 BNA OSHC at 2102, 1980 CCH OSHD at p. 30,591. The Farm asserts that it too is a tribal enterprise, representing an exercise of sovereignty by the Coeur d'Alene tribe, and that inspections of its worksites by the Secretary would infringes on the, tribe's sovereignty. The Act should not apply to the Farm, it contends, because the Act does not express an intent to abrogate the sovereignty exercised by Indian tribes.

The Farm argues further that there are no significant factual distinctions between the situation involved in NFPI and the situation here. It states that both the Navajo and Coeur d'Alene are Indian tribes existing and organized unlaw federal law. Both tribes possess, and reside within the boundaries of, Congressionally- approved reservations. Neither the Navajo tribal enterprise nor the Farm are corporations distinct from the two tribes and thus both tribes are the employers of the employees in the enterprises. The objectives of the tribes in forming the enterprises, are identical: improving the economic and social condition of the people of the reservations, with the profit motive being secondary to these purposes. Both tribal enterprises have Indian preference hiring practices, with the Farm employing only four non-Indians, one being the spouse of a tribal amber. Both tribal enterprises are owned by the respective tribes and are located on tribal-owned reservation land.

The farm acknowledges the areas of factual difference between NFPI and this case, but argues that the differences do not call for a different result in the cases. The Farm concedes there is no treaty between the United States and the Coeur d'Alene tribe, but argues that Congressional ratification in 1891 of the 1887 and 1889 Articles of Agreement with the tribe (Exhs. 5, 6) put the Coeur d'Alene reservation on an equal footing with reservation established by treaty, citing Antoine v. Washington, 420 U.S. 194, 203-204 (1975). The sovereignty of the Coeur d'Alene tribe, the Farm contends, exists with equal force as if a treaty existed, and the Act may not be applied to detract from the tribe's sovereignty.

The Farm next argues that the absence from the Congressionally-ratified agreements between the tribe and the United States of a specific clause for the exclusion of non-Indians is not controlling. The power to exclude non-Indians, the Farm emphasizes, is an attribute of sovereignty. The Commission recognized this in NFPI, the Farm contends, when it stated: "The general right of sovereignty is reinforced (emphasis, the Farm's) by the specific right granted by Article II of the Treaty to exclude all outsiders from the Reservation. . . . " 8 BNA OSHC at 2101, 1980 CCH OSHD at p. 30,590.

B

The Secretary submitted a letter on review stating that this case is governed by the Commission's decision in NFPI[[5]] and that the Commission should overrule NFPI and affirm the citations here. The Secretary also submitted to the Commission the briefs he filed with the Tenth Circuit in NFPI stating that the reasons supporting his request for the overruling of NFPI are set forth in those briefs. He contends that for the following reasons the Commission erred in NFPI by holding that the Act could not be enforced against that tribal enterprise:

(1) NFPI is an employer under 29 U.S.C. 652(4) and (5) of the Act in that it constitutes an organized group of persons engaged in a business affecting commerce which employs employees.

(2) Federal laws of general application like the Act apply to Indians on the basis of the Tuscarora case, supra where the U.S. Supreme Court upheld the taking of an Indian tribe's lands by the New York State Power Authority pursuant to a federal statutory scheme implemented by the Federal Power Commission.

(3) Application of the Act to NFPI would not interfere with the tribe's treaty rights. The Secretary states that the Commission in NFPI properly noted, but incorrectly applied, the important exception to the Tuscarora ruler i.e., general federal statutes will not be applied to Indians if the application would infringe on the treaty rights of Indians. To invoke the exception, the Secretary argues, there must be some treaty right which exempts Indians from the operation of the particular statute in question. In NFPI, however, there was no exemptory treaty right.

Alternatively, if the Commission disagrees that a specific exemption is necessary to invoke the Tuscarora exception, the Secretary contends that the right of self-government is not violated by application of the Act to the tribal enterprise because the right of self-government in subject to complete defeasance when Congress so determines. Therefore, an exercise of Congressional power like the Act cannot be inconsistent with the right of self-government. Further, the Secretary argues, the tribal right of self-government has "largely" been viewed as a barrier to state, not federal, regulation of reservation Indians.

(4) If the Act is inconsistent with the Navajo treaty, the Act modifies the treaty. The Secretary argues that the Commission in NFPI should have held that the Act's broad wording and pervasive purpose indicate a congressional intent to override any inconsistent Indian treaty rights. The Secretary relies on United States v. Fryberg, 622 F.2d 1010, 1013 (9th Cir. 1980), cert. den., 449 U.S. 1004 (1981), in which the Ninth Circuit upheld the conviction of an Indian for killing a bald eagle under the Bald Eagle Protection Act. The court determined that in enacting that general federal statute Congress impliedly intended to modify Indian treaty hunting rights so as to prohibit the killing of bald eagles without a permit. The Secretary further points out that the broad purposes of the National Labor Relations Act (NLRA) were deemed sufficient to override the treaty rights involved in Navajo Tribe v. National Labor Relations Board, 288 F.2d 162 (D.C. Cir. 1961), cert. den., 366 U.S. 928 (1961). In that case the court held that Congress had adopted a national labor policy by enacting NLRA and the NLRA applied to a private employer on a Navajo reservation in spite of the fact that the Navajo tribe had enacted a resolution prohibiting unionization on the reservation.

III

The Secretary argues that this case is governed by the Commission's decision in NFPI and asks that the decision be overruled. The Farm agrees that NFPI governs and contends that case provides sufficient basis for a finding that the Act does not apply to the Farm. The Farm does concede, however, that this case differs factually from NFPI in that the Coeur d'Alene tribe, unlike the Navajo tribe, does not have a treaty with the United States reserving to it the right of sovereignty and granting it the right to exclude outsiders from its reservation.

We agree with the parties that the factual distinctions between this case and NFPI do not call for a different result in the two cases. As the Secretary correctly concedes, treaty-making with Indian tribes was terminated by statute in 1871; there is now "little significance attached to the particular method by which claimed Indian rights are established or confirmed, be it by treaty, stipulation, Act of Congress, or Executive Order." Therefore, it is of no consequence that instead of a treaty the United States has recognized the tribe's sovereignty by (1) an executive order establishing the Coeur d'Alene's 1873 reservation boundaries and (2) a Congressionally-ratified Articles of Agreement of 1887 whereby the Coeur d'Alene tribe ceded territory it formerly possessed to the United States and received from the United States certain monies and the right to hold their reservation land as Indian land forever. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 , 133-34 n. 1 (1982) (Merrion); Antoine v. Washington, supra at 204; Arizona v. California, 373 U.S. 546, 598 (1963).

Further, it is also of no consequence that no treaty or other writing specifically grants the Coeur d'Alene tribe the right to exclude outsiders from its reservation. The right to exclude outsiders from its reservation is a "fundamental sovereign attribute intimately tied to a tribe's ability to protect the integrity and order of its territory and the welfare of its members." F. Cohen, Handbook of Federal Indian Law 252 (1982). Like this case, the Merrion case involved an Indian reservation created by an executive order containing no express language restricting entry on reservation lands. The Court's opinion declared that "a hallmark of Indian sovereignty is the power to exclude non-Indians from Indian lands, . . . " 455 U.S. at 141. The Court also favorably endorsed the following statement from a 1958 treaties, Federal Indian Law, written by the United States Solicitor for the Department of Interior:

[O]ver all the lands of the reservation, whether owned by the tribe, by members thereof, or by outsiders, the tribe has the sovereign power of determining the conditions upon which persons shall be permitted to enter its domain, to reside therein, and to do business, provided only such determination is consistent with applicable Federal laws and does not infringe any vested rights of persons now occupying reservation lands under lawful. authority.

455 U.S. at 146 n. 12.

Having thus concluded that the factual differences between this case and NFPI are inconsequential, we turn to the Secretary's argument that we should overrule NFPI. As he did in NFPI, the Secretary relies on Tuscarora for the proposition that statutes of general applicability apply to Indians even if Indians are not expressly mentioned in the statute. We concluded in NFPI, however, that this principle did not apply in derogation of the right of sovereignty reserved to Indian tribes unless a specific congressional intent to override the right is present; we found no such intent in the Occupational Safety and Health Act. Our foregoing conclusion is supported by the Supreme Court's subsequent decision in Merrion, where the Court stated it must "tread lightly in the absence of clear indications of legislative intent," when considering arguments that a statute impliedly diminishes aspects of tribal sovereignty. 455 U.S. at 149. Similarly, in affirming our decision in NFPI, the Tenth Circuit stated:

Limitations on tribal self-government cannot be implied from a treaty or statute; they must be expressly stated or otherwise made clear from surrounding circumstances and legislative history. Bryan v. Itasca County, Minnesota, 426 U.S. 373, . . . (1976); Morton, Secretary of the. Interior, et al. v. Mancari, 417 U.S. 535. . . . (1974). 692 F.2d at 712. The Tenth Circuit concluded that the Supreme Court's decision in Merrion "limits or, by implication, overrules Tuscarora, . . . at least to the extent of the broad language relied upon by the Secretary contained in Tuscarora that . . . a general statute in term applying to all persons includes Indians and their property interests." 692 F.2d at 713.

Accordingly, we reject the Secretary's invitation, based an Tuscarora, to overrule NFPI. Having concluded that there is no material factual distinction between NFPI and this case, we vacate the Secretary's citations and proposed penalties.


FOR THE COMMISSION

RAY. A. DARLING, JR.
EXECUTIVE SECRETARY

DATED: NOV 16 1983


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FOOTNOTES:

[[1]] 29 U.S.C. 651-678.

[[2]] The exhibits are numbered and identified as follows: (1) Constitution, and By-Laws of the Coeur d'Alene tribe; (2) Chapter 21, entitled "Exclusion, of Non-members from the Coeur d'Alene Indian Reservation," of the tribe's Law and Order Code; (3) Map of the tribe's 1873 reservation; (4) President U.S. Grant's
proclamation establishing the 1873 reservation; (5) Articles of Agreement of 1887, as adopted by Congress, in which the tribe formally ceded its land holdings with the exception of the reservation itself to the United States and the United States formally established and recognized the reservation as Indian Land; (6) Articles of Agreement of 1889 in which the tribe ceded the northern portion of the reservation to the United States and reduced the size of the reservation to its present 350,000 acres; (7) Plan of Operations of the Coeur d'Alene Tribal Farm.

[[3/]] 80 OSAHRC 116/A13, 9 BNA OSHC 1080, 1980 CCH OSHD 24,962.

[[4]] Subsequent to the direction for review in this case, the Commission decision in NFPI was upheld by the Tenth Circuit in Donovan v. Navajo Forest Products Industries, 692 F.2d 709 (10th Cir. 1982). The court held that

The Navajo treaty recognizes the Indian sovereignty of the Navajos and their right of self-government. We agree with the Commission that the application of OSHA to NFPI would constitute abrogation of Article II in the Navajo treaty relating to the exclusion of non- Indians not authorized to enter upon the Navajo Reservation. Furthermore, it would dilute the principles of tribal sovereignty and self-government recognized in the treaty....The United States retains legislative plenary power to divest Indian tribes of any attributes of sovereignty. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). Absent some expression of such legislative intent, however, we shall not permit divestiture of the tribal power to manage reservation lands so as to exclude non-Indians from entering thereon merely on the predicate that federal statutes of general application apply to Indians just as they do to all other persons (in this case "employers") unless Indians are expressly excepted therefrom.
...

692 F.2d at 721, 714.

[[5]]The Secretary's letter was submitted prior to the issuance of the Tenth Circuit's decision in NFPI.