“SECRETARY OF LABOR,\t Complainant,\t v.\tOSHRC Docket No. 01-1424AKWESASNE MOHAWK CASINO,\t Respondent.\t \/DECISION AND REMAND\/ \/\/Before: RAILTON, Chairman; STEPHENS and ROGERS, Commissioners.BY THE COMMISSION: Akwesasne Mohawk Casino (\”AMC\”) is located in Hogansburg, NewYork, on the St. Regis Indian Reservation. The St. Regis Reservationstraddles the St. Lawrence River and includes land in northern New Yorkand in the Canadian provinces of Ontario and Quebec. AMC employsapproximately 170 people, about half of whom are American Indian.Pursuant to a warrant approved by the United States District Court forthe Northern District of New York, the Occupational Safety and HealthAdministration (\u201cOSHA\u201d) inspected AMC and a warehouse used by AMC onMarch 26, 2001. As a result of the inspection, the Secretary of Labor(\u201cthe Secretary\u201d) issued two citations to AMC. AMC timely contested thecitations, and on August 9, 2001 the Secretary filed a complaint withthe Commission. On September 4, 2001, AMC filed a motion to dismiss thecitations and complaint, alleging that OSHA lacks subject matterjurisdiction over its operations. Before us on review is an order of Commission AdministrativeLaw Judge Michael Schoenfeld in which he granted AMC’s motion to dismissthe citations. The judge based his order on a finding that applicationof the Occupational Safety and Health Act, 29 U.S.C. \u00a7 \u00a7 651-678 (\”OSHAct\”), to the working conditions at AMC would abrogate rights guaranteedby treaties between the United States and Indian tribes, concluding thatAMC qualified for an exception to the rule that \”…a general statute interms applying to all persons includes Indians and their propertyinterests.\” \/Federal Power Commission v. Tuscarora Indian Nation\/, 362U.S. 99, 116 (1960).^Footnote The judge relied ontwo treaties cited by AMC: the Fort Stanwix Treaty of 1784, 7 Stat. 15,and the Canandaigua Treaty of 1794, 7 Stat. 44. Because we find thosetwo treaties do not apply to the St. Regis Indians or the land uponwhich AMC is located, we remand this case for further proceedings.\/I. Treaties\/\/\/ The treaties relied on by the judge were among a series oftreaties the United States entered into with the Six Nations of theIroquois Confederacy beginning in 1784. At that time the Six Nations wascomprised of the Mohawk, Onondaga, Seneca, Oneida, Cayuga, and Tuscaroratribes. \/Onondaga Nation v. Thacher\/, 189 U.S. 306 (1903). The FortStanwix Treaty of 1784 established western and southern boundaries forthe lands of the Six Nations, and provided that the Six Nations \u201cshallbe secured in the peaceful possession of the lands\u201d they inhabited eastand north of those boundaries. The Fort Harmar Treaty of 1789, 7 Stat.33, \u201crenew[ed] and confirm[ed] all the engagements and stipulationsentered into at the…treaty at Fort Stanwix,\u201d and extended the FortStanwix Treaty\u2019s protections to the Onondagas, Senecas, and Cayugas,three nations that had not signed that treaty in 1784. The CanandaiguaTreaty of 1794 \u201cacknowledge[d] the lands reserved to the Oneida,Onondaga and Cayuga Nations, in their respective treaties with the stateof New York,\u201d^Footnote and established areservation for the Seneca Nation. That treaty also stated:The United States having thus described and acknowledged what landsbelong to the Oneidas, Onondagas, Cayugas and Senekas, and engaged neverto claim the same, nor to disturb them, or any of the Six Nations, ortheir Indian friends residing thereon and united with them, in the freeuse and enjoyment thereof: Now, the Six Nations, and each of them,hereby engage that they will never claim any other lands within theboundaries of the United States; nor ever disturb the people of theUnited States in the free use and enjoyment thereof. 7 Stat. 44, Article 4.^Footnote Subsequent to the Canandaigua Treaty, the United Statesentered into two treaties that addressed the St. Regis Indiansspecifically. The St. Regis Reservation itself was established by a 1796treaty with the Seven Nations of Canada (\u201cSeven Nations Treaty\u201d), 7Stat. 55, which reserved a \u201ctract equal to six miles square…to beapplied to the use of the Indians of the village of St. Regis.\u201d An 1838treaty with the New York Indians (\u201cNew York Indians Treaty\u201d), 7 Stat.550, provided for payment to the St. Regis and other Indians if thetribes moved to the Territory of Wisconsin. Article 4 of the treatyguaranteed that in their \u201cnew homes\u201d the Indians would have \u201cthe rightto administer their own laws[] subject…to the legislation of theCongress of the United States[] regulating trade and intercourse withthe Indians.\u201d That treaty did not provide the same guaranty with respectto the Indians\u2019 present homes, however.\/II. Discussion \/\/\/ The question whether the St. Regis Indians and theirreservation are covered by the Fort Stanwix and Canandaigua treaties wasaddressed at length by the Court for Franklin County, New York in\/People v. Boots\/, 434 N.Y.S.2d 850 (Franklin Co. Ct. 1980). The St.Regis Indians are residents of, and their reservation is located in,Franklin County. In \/Boots\/, the court considered an argument by aMohawk resident of the St. Regis Reservation that pursuant to the termsof the Canandaigua Treaty the courts of New York lack criminaljurisdiction over the reservation and its residents. The court found itwas the settled law of the state that the Seven Nations Treaty of 1796and not the Canandaigua Treaty governed the rights of Indians on the St.Regis Reservation. The court relied on historical evidence for itsconclusion that, although most of the St. Regis Indians are ethnicallyMohawk, historically the St. Regis Tribe was part of the Seven Nationsof Canada, not the Six Nations of the Iroquois Confederacy. The courtfurther found that, although in 1888 the Six Nations adopted the St.Regis Indians as \u201ckeepers of the eastern door\u201d after the Mohawks lostthat status by moving to Ontario, the \u201csymbolic actions of the IroquoisGrand Council\u201d were insufficient to bring the St. Regis Indians withinthe Canandaigua Treaty. \/Id.\/ For these reasons, the court rejected thedefendant\u2019s arguments, finding that the 1796 treaty, not the 1794Canandaigua Treaty with the Six Nations, applied to the St. RegisReservation. Although the court did not address the 1784 Fort StanwixTreaty specifically, its conclusions regarding the St. Regis Indians’historical status as members of the Seven Nations of Canada, rather thanthe Six Nations of the Iroquois Confederacy, strongly supports a findingthat the St. Regis Indians were not parties to that treaty either. Thereasoning and careful analysis used by the Franklin County Court arevery persuasive, and we find ourselves in agreement. AMC claims, however, that \/Boots\/ is based on a misreading ofthe New York Court of Appeals\u2019 decision in \/St. Regis Tribe of MohawkIndians v. State of New York\/, 5 N.Y.2d 24 (1958), \/cert denied\/, 359U.S. 910, where the court found the 1796 Seven Nations Treaty applicableto the St. Regis Indians but did not discuss the Fort Stanwix andCanandaigua treaties or find those treaties inapplicable. We disagree.The court in \/Boots\/ did not rely solely on \/St. Regis\/ for its findingthat the Canandaigua Treaty does not apply to the St. Regis Indians.\/Boots\/ contains an extensive review of the historical evidence relatingto the St. Regis Indians and their relationship with the Six Nations.Thus, AMC is wrong to the extent it argues \/Boots\/ rests on a misreadingof \/St. Regis\/. AMC asserts that the Seven Nations rejoined their Six Nationskin in a 1760 declaration of unity. Even if this is true, it does notalter the fact that the United States dealt with the Six and SevenNations separately in the treaties of 1794 and 1796, and that the St.Regis Indians were clearly considered part of the Seven Nations in 1796.\/Boots\/ indicates the St. Regis Indians were eventually adopted by theSix Nations as \u201ckeepers of the eastern door,\u201d but their \u201cadoption\u201dapparently did not take place until 1888. Moreover, if the St. RegisIndians were adopted to \/succeed\/ the Mohawks as \u201ckeepers of the easterndoor\u201d in 1888, this implies the St. Regis Tribe was not considered partof the Six Nations prior to that year. AMC cites several cases in which courts allegedly found theSt. Regis Indians are \u201cMohawks\u201d for purposes of the Fort Stanwix andCanandaigua treaties, including \/Lazore v. C.I.R.\/, 11 F.3d 1180 (3dCir. 1993), \/United States v. Brown\/, 824 F.Supp. (S.D. Ohio 1993), and\/Oneida Indian Nation v. New York\/, 194 F. Supp. 2d 104, 116 (N.D.N.Y.2002). There is no indication, however, that in any of these cases thecourt directly considered that issue. The first two cases, which involveSt. Regis or Mohawk Indians, seem to simply assume the St. Regis Indiansare \u201cMohawks\u201d for purposes of treaties with the Six Nations; neithercase specifically addresses that issue. The last case involves an OneidaIndian land claim, and simply identifies the St. Regis Indians asmembers of the Iroquois Confederacy, without stating when the tribeentered the Confederacy. Because \/Boots\/ specifically addressed the St.Regis Indians’ status in the context of the Canandaigua Treaty andreviewed the historical evidence rather extensively, we give more weightto the court\u2019s finding that the St. Regis Indians are not \u201cMohawks\u201d forpurposes of that treaty. Although \/Boots\/ did not address whether theSt. Regis Indians are \u201cMohawks\u201d for purposes of the Fort Stanwix Treaty,the court\u2019s analysis supports a negative finding on that issue as well. We also conclude that, even if the St. Regis Indians could beconsidered \”Mohawks\” for purposes of treaties with the Six Nations,there is insufficient evidence Mohawks signed either the Fort Stanwix orCanandaigua treaties. The \/Boots\/ court found that Mohawks never signedthe latter treaty: \u201c[A]lthough unlike the [Fort Harmar] Treaty of 1789the [Canandaigua] Treaty of 1794 does not specifically exclude theMohawks \/unless\/ they signed it, the fact remains that they were notpresent during its negotiation, despite repeated invitations, and theydid \/not\/ sign it.\u201d 434 N.Y.S. 2d at 856-57 (emphases in original). TheFort Stanwix Treaty likewise was not signed by the Mohawks at itsinception, as evidenced by language in the Fort Harmar Treatyspecifically exempting the Mohawks unless within six months theydeclared their assent to the earlier treaty. 7 Stat. 33, Articles 1 and 4. Nor do we find any indication in William Fenton, The GreatLaw and the Longhouse: A Political History of the IroquoisConfederacy615, 619-20, 630, 701 (1998), which AMC cites to us, thatMohawks signed the Fort Stanwix and Canandaigua treaties. Although someof the cited pages suggest that Mohawk representatives attended thenegotiations that preceded the Fort Stanwix and Canandaigua Treaties,they do not show the Mohawks signed or otherwise assented to thosetreaties. AMC also cites \/Lazore\/ and \/Brown\/, but the courts in thosecases seem to have simply assumed the treaties applied to the Mohawks;neither case addresses the treaty signing issue. Further, we find no basis for concluding the \u201cfree use andenjoyment\u201d rights guaranteed by Articles 2, 3 and 4 of the CanandaiguaTreaty attach to Mohawk lands. Quite simply, Articles 2, 3 and 4 referto \u201clands [that] belong to the Oneidas, Onondagas, Cayugas and Senekas,\u201dand only to those lands. We find nothing in the treaty languagesuggesting these articles also refer to Mohawk lands. AMC is essentiallyasking the Commission to insert the word \u201cMohawks\u201d in Articles 2 through4. However, courts are bound by the unambiguous words of a treaty, andcannot rewrite them. \/Oregon Dept. of Fish & Wildlife v. Klamath IndianTribe\/, 473 U.S. 753, 774 (1985). AMC suggests the United States wouldnot have intended for different rights to attach to lands of differentmembers of the Six Nations, but the historical record indicates theUnited States sometimes dealt with members differently, if only becauseat times certain nations were considered \u201cfriendly\u201d and others \u201chostile\u201dto federal and state interests. \/See Oneida\/, 860 F.2d at 1165-66.Another reason the Canandaigua Treaty does not contain any reference toMohawk lands is suggested in \/Boots\/, 434 N.Y.S.2d at 857, which notesthat the Mohawks appear to have physically abandoned New York Statebetween the American Revolution and 1794, with many tribal membersmoving to Ontario. There are two treaties that clearly apply to the St. RegisIndians, the 1796 Seven Nations Treaty and the 1838 New York IndiansTreaty. We are unable to find any language in the Seven Nations Treatyor the New York Indians Treaty guaranteeing rights that would beabrogated by application of the OSH Act to AMC. \/See Oregon Dept. ofFish & Wildlife v. Klamath Indian Tribe, supra\/. The former treatyreserved land \u201cto be applied to the use of the Indians of the village ofSt. Regis,\u201d but did not guarantee any specific rights in connection withthe land. The latter treaty guaranteed the St. Regis and other New YorkIndians certain rights in the \u201cnew homes\u201d to which they were expected tomove, but did not offer that same guaranty with respect to the Indians\u2019present homes.\/ \/\/ \/\/ \/\/ \/\/ \/\/III. Conclusion \/ We find that application of the OSH Act to the workingconditions at AMC would not abrogate rights guaranteed by any treatythat applies to the St. Regis Indians or their reservation. Accordingly,we remand for further proceedings consistent with this order. SOORDERED. \/s\/_________________________W. Scott RailtonChairman \/s\/___________________________ JamesM. StepensCommissioner \/s\/___________________________ ThomasinaV. Rogers CommissionerDated: January 6, 2005 ———————————————————————— UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION SECRETARY OF LABOR,\t Complainant,\t v.\tOSHRC DOCKET No. 01-1424AKWESASNE MOHAWK CASINO,\t Respondent.\t \/ORDER\/ The issue in this case, one of first impression before theCommission, is whether the application of the Occupational Safety andHealth Act of 1970, 29 U.S.C. \u00a7 651, \/et seq.\/ (the Act)\/,\/ toRespondent\u2019s casino operations would \u201cabrogate rights guaranteed\u201d bytreaties between the St. Regis Mohawk Tribe (the Tribe) and the UnitedStates. Having concluded that it would, Respondent\u2019s motion must be granted. Pursuant to a warrant approved by the United States DistrictCourt for the Northern District of New York, investigators from theOccupational Safety and Health Administration (OSHA) of the U.S.Department of Labor conducted a safety and health inspection at theAkwesasne Mohawk Casino (the Casino) and a warehouse three miles awayused by the Casino. Both are on reservation lands and are owned andoperated by the Tribe. Footnote As a result of theinspection, OSHA issued citations and a notification of proposed penaltyto Respondent. Respondent timely contested. On August 9, 2001, theSecretary filed a complaint with the Commission seeking an orderaffirming the citation and proposed penalties. Respondent replied byfiling a motion to dismiss the citation and complaint alleging a lack ofsubject matter jurisdiction. The Secretary opposed the motion andRespondent filed a reply to the Secretary\u2019s opposition. Respondent moves to dismiss the citation and complaint onthe grounds that the Act does not apply to Indian tribes where \u2018theapplication of the law to the tribe would abrogate rights guaranteed byIndian treaties….\u201d Respondent relies on the holding in \/Reich v.Mashantucket Sand & Gravel,\/ 95 F.3d 174 (2d Cir. 1996)(\/Mashantucket\/), as a framework for analysis of the facts of this caseThe court in that case concluded that:A federal statute of general applicability that is silent on the issueof applicability to Indian tribes [such as the Act] will not apply tothem if: (1) the law touches exclusive rights of self-governance inpurely intramural matters; (2) the application of the law to the tribewould abrogate rights guaranteed by Indian treaties; or (3) there isproof by legislative history or some other means that Congress intended[the law] not to apply to Indians on their reservations.\/Id.\/ at 177, citing \/Donovan v. Coeur d\u2019Alene Tribal Farm\/, 751 F.2d1113, 1116 (9^th Cir. 1985). Respondent does not claim that the Act, if applied, wouldimpact on any \u201cexclusive rights of self-governance in purely intramuralmatters.\u201d Further, Respondent agrees that there is nothing in thelegislative history of the Act showing \u201cthat Congress intended the lawnot to apply to Indians on their reservations.\u201d Respondent correctlypoints out that the \/Mashantucket \/decision is distinguished from thiscase by the crucial fact that treaties exist between the United Statesand the Tribe which owns and operates this casino. Thus, the\/Mashantucket\/ decision is binding only to the extent that it sets outthe appropriate analytical framework for reaching a decision in thismatter. Footnote Whether the application of the Act \u201cwould abrogate rightsguaranteed by the Indian treaties\u201d requires an assessment of thelanguage of the treaties in this case and the application of precedentteaching how to construe such provisions. Footnote There are two treaties controlling. Footnote The Treaty of FortStanwix of 1784, after describing the geographical boundaries of \u201cthelands of the Six Nations,\u201d provided that the Indians \u201cshall be securedin the peaceful possession of the lands….\u201d Treaty of Fort Stanwix of1784, 7 Stat. 15, at Art. III. (Respondent\u2019s Motion, Ex. 11). The Treatyof Cananadaigua of 1794 restored additional land to the Six Nations andstated that:[T]he United States will never claim the same nor disturb them or eitherof the Six Nations, nor their Indian friends residing thereon and unitedwith them in the free use and enjoyment thereof: but the saidreservations shall remain theirs, until they choose to sell the same tothe people of the United States….Treaty of Canandaigua of 1794, 7 Stat 44, at Art. II. (Respondent\u2019sMotion, Ex.11). In addition to the renunciation of any future claims ordisturbances against the Six Nations\u2019 interests in the lands or those\u201cresiding thereon\u201d by the United States, the rights guaranteed by theabove treaties are those of \u201cpeaceful possession of the lands,\u201dand \u201cfreeuse and enjoyment\u201d until the Six Nations choose to sell to the UnitedStates. Treaty provisions were at issue in both \/Donovan v. NavajoForest Products Indus.\/, 8 BNA OSHC 2094 (No. 76-5013), \/aff\u2019d\/, 692F.2D 709 (10^th Cir. 1982) (\/Navajo Products)\/ and \/Department of Laborv. OSHRC (Warm Springs Forest Products Indus.)\/, 935 F.2d 182 (9^th Cir.1991) (\/Warm Springs\/). The courts in those two cases applied theprinciple that as a general proposition, application of the Act to anIndian enterprise engaging in a business affecting interstate commerce(as a casino surely does) does not interfere with the rights ofsovereignty granted to the Indian tribes by virtue of their treaties.The treaties in those cases, however, provided essentially that thereservation lands would be set apart for the exclusive use of the Indiantribes therein and that those tribes had the right to excludenon-Indians from those lands. See, \/Mt. Adams Furniture Co.\/, 1991OSAHRC LEXIS 164, (No. 88-2239, 1991) (Decision and Remand Order), n. 1.In this case, the express treaty rights conferred upon the Six Nationsby the Treaties of Fort Stanwix of 1784 and Fort Cananadaigua of 1794are far-reaching in comparison to those at issue in \/Navajo Products\/and \/Warm Springs\/, supra. The treaties at issue here go further thanassuring the Six Nations\u2019 interest in their lands but they also promisedunbridled control over how that land is used. In essence, the treatiesvowed that the United States would leave the Six Nations alone regardingtheir activities on their own lands. In this regard, the fact that theCasino is a tribal, not an individual, enterprise sways heavily in theirfavor. The solemn promises of 1784 and 1794 are paramount to the 1970goals of the Act. The argument of the Secretary that the right ofself-government, implicit in every Indian treaty, does not include theright to ignore general federal statues may be well and good. It is notcontrolling, however, where, as here, the sought-after application offederal law would serve to abrogate rights specifically promised by treaty. Accordingly, Respondent\u2019s Motion to Dismiss the Citation andComplaint for Lack of Subject Matter Jurisdiction is GRANTED. \/s\/Michael H. SchoenfeldJudge, OSHRCDated: November 26, 2001Washington, D.C.”