SECRETARY OF LABOR,

Complainant,

v.

MT. ADAMS FURNITURE CO.,

Respondent.

OSHRC Docket No. 88-2239

DECISION AND REMAND ORDER

BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

The employer in this case, Mt. Adams Furniture Co. ("Mt. Adams"), is an enterprise of the Yakima Indian tribe and is located on the Yakima Indian reservation.  It was cited by the Secretary for a number of alleged violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-78 ("the Act").  Administrative Law Judge Benjamin R. Loye vacated the citations on the ground that application of the Act to Mt. Adams would abrogate rights granted to the Yakima Indians by treaty.  We reverse the judge's decision because it is contrary to precedent in the Court of Appeals for the Ninth Circuit, where this case arises.

Judge Loye observed that in Coeur d'Alene Tribal Farm, 11 BNA OSHC 1705, 1983-84 CCH OSHD 26,732 (No. 78-6081, 1983) (consolidated), rev'd, 751 F.2d 1113 (9th Cir. 1985), the Commission held that the Secretary did not have jurisdiction over a commercial enterprise of the Coeur d'Alene Indian tribe located on the tribe's reservation land. While noting that the Ninth Circuit had reversed the Commission's decision in Coeur d'Alene, the judge reasoned that Coeur d'Alene was distinguishable because the tribe in that case did not have a formal treaty with the United States Government.

Subsequent to the judge's decision, the Ninth Circuit decided Department of Labor v. OSHRC (Warm Springs Forest Prods. Indus.), 935 F.2d 182 (9th Cir. 1991).  That case held that the general right of the Confederated Tribes of Warm Springs conferred by treaty to exclude non-Indians from the Warm Springs Reservation did not bar application of the Act to a sawmill owned and operated by the tribes.   The court noted that the Act provides only for a limited entry necessary for investigations to enforce the Act and reasoned that "were we to construe the Treaty right of exclusion broadly to bar application of the Act, the enforcement of nearly all generally applicable federal laws would be nullified." Id. at 187.  The court also reiterated the holding it had previously reached in Coeur d'Alene that, as a general proposition, application of the Act to Indian enterprises engaging in interstate commerce with non-Indians does not interfere with the rights of sovereignty granted to Indian tribes.  Id. at 184 (citing Coeur d'Alene, 751 F.2d at 1116).

The language of the treaty granting the Yakima tribe authority over the lands granted to them is virtually identical to the language of the treaty at issue in Warm Springs.  Both treaties grant the Indians "exclusive" use of the land and provide that non-Indians generally may not enter reservation lands without permission.[[1]]  Therefore, we conclude that, if confronted with the issue presented in this case, the Ninth Circuit would reach the same conclusion as it did in Warm Springs and would hold that the general right of the Yakima Indians to exclude non-Indians is insufficient to preclude enforcement of the Act against Mt. Adams.  Since this case arises within the Ninth Circuit, Warm Springs is dispositive of the question before us here.[[2]]

Judge Loye's decision was based on Mt. Adams' motion to dismiss the Secretary's citations and complaint.  No evidentiary hearing has been held, nor, for that matter, has Mt. Adams as yet filed an answer to the Secretary's complaint.  Accordingly, we reverse and remand for further proceedings on the merits of the alleged violations.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: November 6, 1991


SECRETARY OF LABOR,

Complainant,

v.

MT. ADAMS FURNITURE COMPANY,

Respondent.

OSHRC DOCKET NO. 88-2239

APPEARANCES:

For the Complainant:
Matthew Vadnal, Esq., Office of the Solicitor U.S. Department of Labor, Seattle, WA

For the Respondent:
Tim Weaver, Esq., Cockrill, Weaver & Bjur, Yakima, WA

DECISION AND ORDER

Loye, Judge:
This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section 651 et seq.; hereafter called the "Act").

On August 9 and 10, 1988, OSHA conducted an inspection of the respondent's operation located at an inspection site denominated as "Yakima Indian Nation Industrial Site, Jones Road, Wapato, Washington.  (See OSHA Citation) "Upon completion of such inspection, 23 separate citations were issued under 29 C.F.R. 1910 and one citation under 29 C.F.R. 1904 on September 1, 1988.  The case was docketed with the Commission on October 14, 1988, after notice of contest was filed on September 25, 1988, by the respondent.  The complaint was filed with the Commission on October 25, 1988.  By Order of the Administrative Law Judge dated November 7, 1988, the letter of contest of respondent dated September 25, 1988, was treated as a Motion to Dismiss.  The parties thereafter filed briefs directed to the issues herein and oral argument was made by both parties on the motion on February 13, 1989 wherein the Treaty and the Treaty minutes were received as Exhibit A.  Thereafter the parties further briefed issues herein and the matter is now ready for ruling on the Motion to Dismiss.

DISCUSSION

On June 9, 1855, a Treaty was negotiated between the Yakima Indian Nation and the United States (Exhibit A) ceding certain lands to the United States and reserving unto the Yakima's a certain tract of land as defined within such Treaty document partially as follows:

". . . for the exclusive use and benefit of said confederated tribes and bands of Indians, as an Indian reservation; nor shall any white man, excepting those in the employment of the Indian Department, be permitted to reside upon the said reservation without permission of the tribe. . . "

This Treaty did not specifically reserve the right unto the Indians to exclude outsiders.  However, the Treaty minutes, taken contemporaneously with the discussions leading up to the actual signing of the Treaty document, clearly indicates the understanding of the Yakimas as to the import of the Treaty.  It is apparent to the undersigned that such Treaty minutes guarantee to the Yakimas a "tract of land into which no white man could go without their consent." (Treaty minutes p. 8-10) Further, the understanding of the Yakimas as to the intent and purpose of the Treaty was clearly spelled out in the following colloquy on p. 41 of the minutes:

Looking Glass (a Chief of the Yakimas) "I want to know if an Agent will stay up in my Country"?

Gov. Stevens "As long as there are people."

Looking Glass "Will the Agent be there that long to keep the whites from pushing into our Country"?

Gen. Palmer "Certainly."

Looking Glass "Will you mark the piece of Country I have marked and say the Agent shall keep the whites out"?

Gen. Palmer "None will be permitted to go there but the Agent and persons employed, without your consent."

This is most persuasive; construing a Treaty in the sense in which it was understood by the Indians has been the consistent historic hallmark of the ruling of the Courts.  This understanding must be derived not only from the express language of the Treaty and the minutes, but from all circumstances surrounding its execution.  United States v. Winans, 198 U.S. 371 (1905); Washington Passenger Fishing Vessel Association, 443 U.S. 685 (1979).  Such interpretation must be done not only to protect an unlettered people, (i.e., the Indians), but to construe the same as such was understood at the time it was executed.  United States v. Winans, supra, Seufert Bros. Co. v. United States, 249 U.S., 202 (1919); Tulee v. State of Washington, 315 U.S. 862 (1942); Jones v. Meehan, 175 U.S. 1 (1899); Washington v. Washington Passenger Fishing Vessel Association., 443 U.S. 658 (1979).  A reading of the Treaty and the minutes, together, paint a clear picture of the understanding of the Indians as to the import of the Treaty upon their rights.

In Coeur d'Alene Tribal Farm, 11 BNA OSHC 1705 (No. 78-6081, 78-6082, 1983), the Commission held that the right to exclude outsiders from their reservation is a "fundamental sovereign attribute" of Indian tribes, and as such is not overridden by a statute of general applicability such as the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.) which contains no indication of any Congressional intent to limit tribal self government.  Id. at 1708-1709.  The Commission agreed with the respondent that inspections of its worksites by the Occupational Safety and Health Administration infringed upon its inherent tribal rights and vacated the Secretary's citation.

The Ninth Circuit overruled the Commission, holding that in enacting a statute of general applicability, Congress invokes its plenary power to limit the inherent sovereignty of Indian tribes unless it expressly excludes the tribes from operation of the statute.  Donovan v. Couer d'Alene Tribal Farm, 751 F.2d 1113, 12 BNA OSHC 1169 (9th Cir. 1985) The Court stated, however, that a federal statute of general applicability that is silent on the subject of Indian tribes will not be applied in derogation of rights guaranteed by Indian Treaties.  Unlike the Coeur d'Alene tribe in the Ninth Circuit case, the Yakimas have a Treaty with the United States (Exhibit A) which sets apart a tract of land unto the Indians for their exclusive use.  The Treaty, along with the minutes taken at the time of its negotiation, clearly discloses the limitations upon the white man and his activities upon the land reserved unto the Indians.   The Coeur d'Alene case above is clearly distinguishable from the instant case by the existence of the Yakima Treaty and its provisions, the Treaty minutes and the circumstances of ultimate understanding thereof by the Indians, all made remarkably clear by a reading of both documents.

DECISION:

Based upon the foregoing, the undersigned finds that the application of the Occupational Safety and Health Act would infringe upon the rights guaranteed to the Indians by the Yakima Treaty.  The citation in the above captioned action is, therefore, DISMISSED.

It is SO ORDERED.

Benjamin R. Loye
Judge, OSHRC
Dated: May 17, 1989


FOOTNOTES:

[[1]] The treaty at issue before the court in Warm Springs provided as follows:

All of which tract shall be set apart, and, so far as necessary, surveyed and marked out for their exclusive use; nor shall any white person be permitted to reside upon the same without the concurrent permission of the agent and superintendent.

935 F.2d at 184 (quoting Treaty, Art. 1, para. 3).

The court rejected the argument that the term "reside" should be construed narrowly to prohibit non-Indians only from occupying reservation land.  The court concluded that "[r]ead within the context of the entire Treaty and in light of the history of Native American relations, the provision sets forth a general right of exclusion [of non-Indians]." Id. at 185.

Similarly, the treaty creating the Yakima Indian reservation states:

All of which tract shall be set apart and, so far as necessary, surveyed and marked out, for the exclusive use and benefit of said. . . Indians, as an Indian reservation; nor shall any white man, excepting those in the employment of the Indian Department, be permitted to reside upon the said reservation without permission of the tribe and the Superintendent and agent.

Treaty with the Yakimas, 1855, Art. II.

[[2]] In Coeur d'Alene the Commission relied on Navajo Forest Prods. Indus., 8 BNA OSHC 2094, 1980 CCH OSHD 24,822 (No. 76-5013, 1980), aff'd, 692 F.2d 709 (10th Cir. 1982) ("NFPI"), in which the Commission held, and the Tenth Circuit agreed, that a sawmill operated by the Navajo tribal government is not subject to the Act.  In reversing the Commission's decision in Coeur d'Alene, the Ninth Circuit expressed disagreement with the Tenth Circuit's decision in NFPI. 751 F.2d at 1117 n.3.