SECRETARY OF LABOR, Complainant, v. WARM SPRINGS FOREST PRODUCTS INDUSTRIES, and THE CONFEDERATED TRIBES OF THE WARM SPRINGS RESERVATION, Respondents. OSHRC Docket Nos. 89-0162 and 89-0163 _ORDER _ These cases are before us at the direction of the United States Court of Appeals for the Ninth Circuit. _U.S. Department of Labor v. OSHRC_, Docket No. 90-70082 (9th Cir. June 7, 1991),_rev'g,_ _Warm Springs Forest Products Industries_, 14 BNA OSHC 1420, 1987-90 CCH OSHD ¶ 28,771 (No. 89-162, 1989). In accordance with the Ninth Circuit's decision and mandate, we remand the cases to Administrative Law Judge Benjamin R. Loye to reconsider the Secretary's complaint. Warm Springs Forest Products Industries ("Warms Springs") is a sawmill owned and operated by Respondent, The Confederated Tribes of the Warm Springs Reservation ("Tribes"). After a compliance officer from the Occupational Safety and Health Administration ("OSHA") conducted an inspection at the sawmill and OSHA issued a citation, the Secretary of Labor ("Secretary") filed a complaint. Judge Loye then granted Respondents' motion to dismiss these cases. The judge ruled that enforcement of the Occupational Safety and Health Act (the "Act"), 29 U.S.C. §§ 651-678, at the sawmill on tribal reservation lands -- without explicit Congressional authorization -- would infringe upon the exclusive use of those lands guaranteed the Tribes under the Treaty with the Tribes of Middle Oregon of June 25, 1855, 12 Stat. 963 ("Treaty"). The Secretary filed a petition for discretionary review with the Commission, but the case was not directed for review. However, the Ninth Circuit granted the petition for review filed with it by the Secretary. In _Donovan v. Coeur d'Alene Tribal Farm,_ 751 F.2d 1113 (9th Cir. 1985), the court employed the established principle that "a general statute in terms applying to all persons includes Indians and their property right interests", _FPC v. Tuscarora Indian Nation_, 362 U.S. 99,116 (1960), to hold that the Act applied to a commercial enterprise wholly owned and operated by a Native American tribe. It also noted, however, that it recognized certain exceptions to the general principle, one of which is central to this case -- a federal statute of general applicability that is silent on the issue of applicability to Indian tribes, like the Act, does not apply to them if the application of the law to the tribe would abrogate rights guaranteed by Indian treaties. The court interpreted the treaty provision "mark[ing] out" the reservation for the "exclusive use" of Native Americans and prohibiting non-Native Americans from residing there without the permission of the agent and superintendent to set forth a general right of exclusion. Docket No. 90-70082, slip op. at 7153. The court concluded that the conflict between the general right of exclusion and the limited entry necessary to enforce the OSH Act was not sufficient to bar application of the Act to the Warm Springs mill. The court remanded the case to the Commission for us to "reconsider the Secretary's complaint," Docket No. 90-70082, slip op. at 7156. Accordingly, we remand the case to Judge Loye for reconsideration consistent with the decision of the Ninth Circuit. Edwin G Foulke, Jr. Chairman Velma Montoya Commissioner Donald G. Wiseman Commissioner Dated: July 31, 1991 ------------------------------------------------------------------------ SECRETARY OF LABOR, Complainant, v. WARM SPRINGS FOREST PRODUCTS INDUSTRIES, and THE CONFEDERATED TRIBES OF THE WARM SPRINGS RESERVATION, Respondent. OSHRC DOCKET NOS. 89-0162 and 89-0163 APPEARANCES: For the Complainant: Matthew L. Vadnal, Esq., Office of the Solicitor, U.S. Department of Labor, Seattle, WA For the Respondent: James D. Noteboom, Esq., Marceau, Karnopp, Petersen, Noteboom & Hubel, Bend, OR _DECISION AND ORDER_ Loye, Judge: This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section 651 _et seg_.; hereafter called the "Act"). Respondent has filed a Motion to Dismiss in the above captioned actions, alleging that it is a federally recognized Indian tribe and that, 1) it is not an employer covered by the Occupational Safety and Health Act, 29 U.S.C. §651 et seq. (hereafter referred to as "the Act"); (2) application of the Act to respondent would impermissibly infringe upon the tribe's treaty rights and (3) the instant action is barred by the respondent's sovereign immunity. On July 24, 1989, a hearing on the motion was held in Eugene, Oregon. Both parties have submitted briefs. For the reasons discussed below, this Judge finds that enforcement of the Act would infringe upon the tribe's treaty rights. Respondent's motion is, therefore, granted and the above docketed cases are DISMISSED. In _Coeur d'Alene Tribal Farm,_ 114. BNA OSHC 1703 (No. 78-6081, 78-6082, 1983), the Commission held that the right to exclude outsiders from their reservations 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 on 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. Coeur d'Alene Tribal Farm, _751 F.2d 1113, 12 BNA OSHC 1169 (9th Cir. 1985). The Ninth Circuit Court, however, noted a number of limitations on its own decision. The court there stated that such a federal statute of general applicability which is silent on the subject of Indian tribes is unenforceable, inter alia, where its provisions operate in derogation of rights guaranteed by Indian treaties. Id. Unlike _Coeur d'Alene Tribal Farm_, this case involves a treaty between the Tribes of Middle Oregon and the United States government. The Treaty sets apart a tract of land for the confederated bands of Indians: "[a]ll 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." (Exhibit A, Article 1, p. 41). The Secretary's argument that the cited Treaty provision was intended only to prohibit whites from residing on reservation lands without the permission of the agent and superintendent and placed no restrictions on the exercise of governmental powers is rejected as inconsistent with both the treaty language and the history of the U.S. Government's dealings with the Indian tribes. It is the opinion of this Judge that, the treaty evidences an intent of the parties to exclude the white man from reservation lands for any and all purposes except as therein enumerated.[[1]] Enforcement of the Act on reservation lands would, therefore, infringe upon the exclusive use guaranteed under the Treaty without explicit Congressional authorization. So ORDERED. Benjamin R. Loye Judge, OSHRC Dated: November 6, 1989 ------------------------------------------------------------------------ FOOTNOTES: [[1]] Article 9. The said confederated bands agree that whensoever, in the opinion of the President of the United States, the public interest may require it, that all roads, highways, and railroads shall have the right of way through the reservation herein designated, or which may at any time here after be set apart as a reservation for said Indians.