“SECRETARY OF LABORComplainant,v.COEUR d’ALENE TRIBAL FARM,RespondentOSHRC Docket Nos. 78-6081 & 78-6082DECISIONBefore: ROWLAND, Chairman; CLEARY, Commissioner.BY THE COMMISSION:The primary question in this case is whether the Occupational Safety andHealth Act (the Act)[[1]] applies to a commercial farm of the Coeurd’Alene Indian tribe located on that tribe’s reservation land. JudgeErvin L. Stuler found on remand that the Act did apply and granted theSecretary of Labor’s (Secretary) summary judgement motion, affirming twocitations issued to the Coeur d’Alene Tribal Farm (the Farm) andassessing $185 in penalties. We find that the Act does not apply andtherefore reverse the judge and vacate the citations.IThe Coeur d’Alene Tribal Farm in a commercial enterprise of the Coeurd’Alene Indian tribe. The Farm produces grains and lentils exclusivelyfor sale on the open market. It lies within the boundaries of thetribe’s reservation on land either owned by the tribe or leased fromIndian owners and includes grain storage facilities at Tensed and WorleyIdaho.The Secretary conducted inspections of the Tensed and Worley grainstorage facilities on October 5 and 6, 1978. Following thoseinspections, 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 issuedpertinent to the facilities at Worley (OSHRC Docket No. 78-6082). TheFarm contested both citations and the case was assigned to JudgeStuller. The parties agreed to waive a hearing and proceed on a jointstatement of facts with appended exhibits.[[2]]The parties subsequently filed cross summary judgment motions statingthat all factual and legal issues necessary to affirm the citations hadbeen resolved with the exception of the legal issues of whether theSecretary had jurisdiction over the Farm as an entity of the Coeurd’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 thecase. He granted the Secretary’s summary judgment motion, denied theFarm’s summary judgment motion, and affirmed the citations and proposed$185 penalty. In determining that the Secretary had jurisdiction overthe Farm and its grain storage facilities, the judge relied on theprinciple enunciated in Federal Power Commission v. Tuscarora IndianNation, 362 U.S. 99 (1960) (Tuscarora), that a federal statute ofgeneral applicability is applicable to Indians even though they are notexpressly mentioned. The judge also found that the totality ofcircumstances surrounding the Secretary’s inspection indicated that theMaria voluntarily consented to the inspection.The Farm petitioned for review and review was directed on whether thejudge erred in ruling that the Farm was subject to the Act and anwhether the Act to applicable to a business enterprise of an Indiantribal government that employs non-Indian employees.In the Commission’s first decision in this case, [[3\/]] the Commissionnoted that it had recently decided similar issues in Navajo ForestProducts Industries, 80 OSAHRC 98\/A2, 8 BNA OSHC 2094, 1980 CCH OSHD ?24,822 (No. 76-5013, 1980) (NFPI) . in that case the Commissiondetermined that the Act could not be applied in a manner inconsistentwith the treaty rights of an Indian tribe and found that Navajo ForestProducts Industries (NM), an enterprise of the Navajo tribal government,was not subject to the Act because the Navajo tribe’s treaty with theUnited States reserved to the tribe the general right of or self-government. This general right was reinforced by a specific rightgranted in the treaty to exclude outsiders from the reservation.Because the Commission observed factual differences between NFPI and theinstant case, however, the Commission did not issue a final decision.Instead, it remanded the case, granting the parties the opportunity toargue the significance of the factual distinctions and permitting thejudge to reopen the record for the presentation of additional evidencein light of NFPI. The Commission ordered the judge to reconsider thecase in light of NFPI and any new arguments and evidence. On remand, theparties filed a supplement to the initial statement of facts, additionalbriefs, and renewed their summary judgment motions.By decision of February 16,1982, the judge reaffirmed his earlierdecision. He stated that the Farm admitted there were factualdifferences between this cause and NFPI. In NFPI, the Navajo tribe hadentered into a treaty with the United States which contained a specificprovision for the exclusion of non-Indiana from the Navajo reservations.In this case, the Coeur d’Alene tribe has no treaty with the UnitedStates and has no specific agreement with the United States granting thetribe the right to exclude non- Indians from its reservation. JudgeStuller found these factual differences \”fatal to the Respondent’s case.\”The Farm again petitioned for review and review was directed on whetherthe judge erred in granting the Secretary’s summary judgment motion andin distinguishing this case from NFPI on the bases that (1) a treatyrelation does not exist between the United States and the Coeur d’Alenetribe, and (2) the agreement between the tribe and United States doesnot specifically exclude non-Indians from the tribal reservation. [[4]]IIAThe Farm contends that Indian tribes possess powers of limitedsovereignty which are retained until Congress explicitly removes them.It asserts that tribes \”possess those aspects of sovereignty notwithdrawn by treaty or statute, or by implication as a necessary resultof their dependent status,\” citing United States v. Wheeler, 435 U.S.313, 323 (1978).The Commission’s decision in NFPI, the Farm argues, recognized thatCongress would not abrogate tribal sovereignty without expressing itsintent to do so:[W]e conclude that NFPI, as an enterprise established and operated bythe tribe within the reservation, represents an exercise of the Navajotribe’s sovereignty. Because we have also decided that the Act does notabrogate the tribe’s rights under the Treaty, and therefore cannot beapplied in a manner that would detract from the tribe’s sovereignty, weconclude that NFPI is not subject to the Act.8 BNA OSHC at 2102, 1980 CCH OSHD at p. 30,591. The Farm asserts that ittoo is a tribal enterprise, representing an exercise of sovereignty bythe Coeur d’Alene tribe, and that inspections of its worksites by theSecretary would infringes on the, tribe’s sovereignty. The Act shouldnot apply to the Farm, it contends, because the Act does not express anintent to abrogate the sovereignty exercised by Indian tribes.The Farm argues further that there are no significant factualdistinctions between the situation involved in NFPI and the situationhere. It states that both the Navajo and Coeur d’Alene are Indian tribesexisting and organized unlaw federal law. Both tribes possess, andreside within the boundaries of, Congressionally- approved reservations.Neither the Navajo tribal enterprise nor the Farm are corporationsdistinct from the two tribes and thus both tribes are the employers ofthe employees in the enterprises. The objectives of the tribes informing the enterprises, are identical: improving the economic andsocial condition of the people of the reservations, with the profitmotive being secondary to these purposes. Both tribal enterprises haveIndian preference hiring practices, with the Farm employing only fournon-Indians, one being the spouse of a tribal amber. Both tribalenterprises are owned by the respective tribes and are located ontribal-owned reservation land.The farm acknowledges the areas of factual difference between NFPI andthis case, but argues that the differences do not call for a differentresult in the cases. The Farm concedes there is no treaty between theUnited States and the Coeur d’Alene tribe, but argues that Congressionalratification in 1891 of the 1887 and 1889 Articles of Agreement with thetribe (Exhs. 5, 6) put the Coeur d’Alene reservation on an equal footingwith reservation established by treaty, citing Antoine v. Washington,420 U.S. 194, 203-204 (1975). The sovereignty of the Coeur d’Alenetribe, the Farm contends, exists with equal force as if a treatyexisted, and the Act may not be applied to detract from the tribe’ssovereignty.The Farm next argues that the absence from the Congressionally-ratifiedagreements between the tribe and the United States of a specific clausefor the exclusion of non-Indians is not controlling. The power toexclude non-Indians, the Farm emphasizes, is an attribute ofsovereignty. 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 ofthe Treaty to exclude all outsiders from the Reservation. . . . \” 8 BNAOSHC at 2101, 1980 CCH OSHD at p. 30,590.BThe Secretary submitted a letter on review stating that this case isgoverned by the Commission’s decision in NFPI[[5]] and that theCommission should overrule NFPI and affirm the citations here. TheSecretary also submitted to the Commission the briefs he filed with theTenth Circuit in NFPI stating that the reasons supporting his requestfor the overruling of NFPI are set forth in those briefs. He contendsthat for the following reasons the Commission erred in NFPI by holdingthat 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 inthat it constitutes an organized group of persons engaged in a businessaffecting commerce which employs employees.(2) Federal laws of general application like the Act apply to Indians onthe basis of the Tuscarora case, supra where the U.S. Supreme Courtupheld the taking of an Indian tribe’s lands by the New York State PowerAuthority pursuant to a federal statutory scheme implemented by theFederal Power Commission.(3) Application of the Act to NFPI would not interfere with the tribe’streaty rights. The Secretary states that the Commission in NFPI properlynoted, but incorrectly applied, the important exception to the Tuscaroraruler i.e., general federal statutes will not be applied to Indians ifthe application would infringe on the treaty rights of Indians. Toinvoke the exception, the Secretary argues, there must be some treatyright which exempts Indians from the operation of the particular statutein question. In NFPI, however, there was no exemptory treaty right.Alternatively, if the Commission disagrees that a specific exemption isnecessary to invoke the Tuscarora exception, the Secretary contends thatthe right of self-government is not violated by application of the Actto the tribal enterprise because the right of self-government in subjectto complete defeasance when Congress so determines. Therefore, anexercise of Congressional power like the Act cannot be inconsistent withthe right of self-government. Further, the Secretary argues, the tribalright of self-government has \”largely\” been viewed as a barrier tostate, not federal, regulation of reservation Indians.(4) If the Act is inconsistent with the Navajo treaty, the Act modifiesthe treaty. The Secretary argues that the Commission in NFPI should haveheld that the Act’s broad wording and pervasive purpose indicate acongressional 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 NinthCircuit upheld the conviction of an Indian for killing a bald eagleunder the Bald Eagle Protection Act. The court determined that inenacting that general federal statute Congress impliedly intended tomodify Indian treaty hunting rights so as to prohibit the killing ofbald eagles without a permit. The Secretary further points out that thebroad purposes of the National Labor Relations Act (NLRA) were deemedsufficient 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 hadadopted a national labor policy by enacting NLRA and the NLRA applied toa private employer on a Navajo reservation in spite of the fact that theNavajo tribe had enacted a resolution prohibiting unionization on thereservation.IIIThe Secretary argues that this case is governed by the Commission’sdecision in NFPI and asks that the decision be overruled. The Farmagrees that NFPI governs and contends that case provides sufficientbasis for a finding that the Act does not apply to the Farm. The Farmdoes concede, however, that this case differs factually from NFPI inthat the Coeur d’Alene tribe, unlike the Navajo tribe, does not have atreaty with the United States reserving to it the right of sovereigntyand granting it the right to exclude outsiders from its reservation.We agree with the parties that the factual distinctions between thiscase and NFPI do not call for a different result in the two cases. Asthe Secretary correctly concedes, treaty-making with Indian tribes wasterminated by statute in 1871; there is now \”little significanceattached to the particular method by which claimed Indian rights areestablished or confirmed, be it by treaty, stipulation, Act of Congress,or Executive Order.\” Therefore, it is of no consequence that instead ofa treaty the United States has recognized the tribe’s sovereignty by (1)an executive order establishing the Coeur d’Alene’s 1873 reservationboundaries and (2) a Congressionally-ratified Articles of Agreement of1887 whereby the Coeur d’Alene tribe ceded territory it formerlypossessed to the United States and received from the United Statescertain monies and the right to hold their reservation land as Indianland 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 writingspecifically grants the Coeur d’Alene tribe the right to excludeoutsiders from its reservation. The right to exclude outsiders from itsreservation is a \”fundamental sovereign attribute intimately tied to atribe’s ability to protect the integrity and order of its territory andthe welfare of its members.\” F. Cohen, Handbook of Federal Indian Law252 (1982). Like this case, the Merrion case involved an Indianreservation created by an executive order containing no express languagerestricting entry on reservation lands. The Court’s opinion declaredthat \”a hallmark of Indian sovereignty is the power to excludenon-Indians from Indian lands, . . . \” 455 U.S. at 141. The Court alsofavorably endorsed the following statement from a 1958 treaties, FederalIndian Law, written by the United States Solicitor for the Department ofInterior:[O]ver all the lands of the reservation, whether owned by the tribe, bymembers thereof, or by outsiders, the tribe has the sovereign power ofdetermining the conditions upon which persons shall be permitted toenter its domain, to reside therein, and to do business, provided onlysuch determination is consistent with applicable Federal laws and doesnot infringe any vested rights of persons now occupying reservationlands under lawful. authority.455 U.S. at 146 n. 12.Having thus concluded that the factual differences between this case andNFPI are inconsequential, we turn to the Secretary’s argument that weshould overrule NFPI. As he did in NFPI, the Secretary relies onTuscarora for the proposition that statutes of general applicabilityapply to Indians even if Indians are not expressly mentioned in thestatute. We concluded in NFPI, however, that this principle did notapply in derogation of the right of sovereignty reserved to Indiantribes unless a specific congressional intent to override the right ispresent; we found no such intent in the Occupational Safety and HealthAct. Our foregoing conclusion is supported by the Supreme Court’ssubsequent decision in Merrion, where the Court stated it must \”treadlightly in the absence of clear indications of legislative intent,\” whenconsidering arguments that a statute impliedly diminishes aspects oftribal sovereignty. 455 U.S. at 149. Similarly, in affirming ourdecision in NFPI, the Tenth Circuit stated:Limitations on tribal self-government cannot be implied from a treaty orstatute; they must be expressly stated or otherwise made clear fromsurrounding circumstances and legislative history. Bryan v. ItascaCounty, Minnesota, 426 U.S. 373, . . . (1976); Morton, Secretary of the.Interior, et al. v. Mancari, 417 U.S. 535. . . . (1974). 692 F.2d at712. The Tenth Circuit concluded that the Supreme Court’s decision inMerrion \”limits or, by implication, overrules Tuscarora, . . . at leastto the extent of the broad language relied upon by the Secretarycontained in Tuscarora that . . . a general statute in term applying toall 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 factualdistinction between NFPI and this case, we vacate the Secretary’scitations and proposed penalties.FOR THE COMMISSIONRAY. A. DARLING, JR.EXECUTIVE SECRETARYDATED: NOV 16 1983————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office By e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).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 IndianReservation,\” of the tribe’s Law and Order Code; (3) Map of the tribe’s1873 reservation; (4) President U.S. Grant’sproclamation establishing the 1873 reservation; (5) Articles ofAgreement of 1887, as adopted by Congress, in which the tribe formallyceded its land holdings with the exception of the reservation itself tothe United States and the United States formally established andrecognized the reservation as Indian Land; (6) Articles of Agreement of1889 in which the tribe ceded the northern portion of the reservation tothe United States and reduced the size of the reservation to its present350,000 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, theCommission decision in NFPI was upheld by the Tenth Circuit in Donovanv. Navajo Forest Products Industries, 692 F.2d 709 (10th Cir. 1982). Thecourt held thatThe Navajo treaty recognizes the Indian sovereignty of the Navajos andtheir right of self-government. We agree with the Commission that theapplication of OSHA to NFPI would constitute abrogation of Article II inthe Navajo treaty relating to the exclusion of non- Indians notauthorized to enter upon the Navajo Reservation. Furthermore, it woulddilute the principles of tribal sovereignty and self-governmentrecognized in the treaty….The United States retains legislativeplenary power to divest Indian tribes of any attributes of sovereignty.Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). Absent some expression ofsuch legislative intent, however, we shall not permit divestiture of thetribal power to manage reservation lands so as to exclude non-Indiansfrom entering thereon merely on the predicate that federal statutes ofgeneral application apply to Indians just as they do to all otherpersons (in this case \”employers\”) unless Indians are expressly exceptedtherefrom….692 F.2d at 721, 714.[[5]]The Secretary’s letter was submitted prior to the issuance of theTenth Circuit’s decision in NFPI.”