“Docket No. 78-6081 78-6062 SECRETARY OF LABORComplainant,v.COEUR d’ALENE TRIBAL FARM,RespondentOSHRC Docket Nos. 78-6081 & 78-6082DECISION Before: ROWLAND, Chairman; CLEARY, Commissioner.BY THE COMMISSION:The primary question in this case is whether the Occupational Safety and Health Act (theAct)[[1]] applies to a commercial farm of the Coeur d’Alene Indian tribe located on thattribe’s reservation land. Judge Ervin L. Stuler found on remand that the Act did apply andgranted the Secretary of Labor’s (Secretary) summary judgement motion, affirming twocitations issued to the Coeur d’Alene Tribal Farm (the Farm) and assessing $185 inpenalties. We find that the Act does not apply and therefore reverse the judge and vacatethe citations.I The Coeur d’Alene Tribal Farm in a commercial enterprise of the Coeur d’Alene Indiantribe. The Farm produces grains and lentils exclusively for sale on the open market. Itlies within the boundaries of the tribe’s reservation on land either owned by the tribe orleased from Indian owners and includes grain storage facilities at Tensed and WorleyIdaho.The Secretary conducted inspections of the Tensed and Worley grain storage facilities onOctober 5 and 6, 1978. Following those inspections, an eleven-item citation with a totalproposed 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 thefacilities at Worley (OSHRC Docket No. 78-6082). The Farm contested both citations and thecase was assigned to Judge Stuller. The parties agreed to waive a hearing and proceed on ajoint statement of facts with appended exhibits.[[2]]The parties subsequently filed cross summary judgment motions stating that all factual andlegal issues necessary to affirm the citations had been resolved with the exception of thelegal issues of whether the Secretary had jurisdiction over the Farm as an entity of theCoeur d’Alene Indian tribe and whether the inspections of the Farm facilities, conductedwithout a warrant, were lawful. On May 20, 1980, Judge Erwin L. Stuller issued his first decision in the case. He grantedthe Secretary’s summary judgment motion, denied the Farm’s summary judgment motion, andaffirmed the citations and proposed $185 penalty. In determining that the Secretary hadjurisdiction over the Farm and its grain storage facilities, the judge relied on theprinciple enunciated in Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99(1960) (Tuscarora), that a federal statute of general applicability is applicable toIndians even though they are not expressly mentioned. The judge also found that thetotality of circumstances surrounding the Secretary’s inspection indicated that the Mariavoluntarily consented to the inspection.The Farm petitioned for review and review was directed on whether the judge erred inruling that the Farm was subject to the Act and an whether the Act to applicable to abusiness 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 hadrecently decided similar issues in Navajo Forest Products Industries, 80 OSAHRC 98\/A2, 8BNA OSHC 2094, 1980 CCH OSHD ? 24,822 (No. 76-5013, 1980) (NFPI) . in that case theCommission determined that the Act could not be applied in a manner inconsistent with thetreaty rights of an Indian tribe and found that Navajo Forest Products Industries (NM), anenterprise of the Navajo tribal government, was not subject to the Act because the Navajotribe’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 toexclude 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 distinctionsand permitting the judge to reopen the record for the presentation of additional evidencein light of NFPI. The Commission ordered the judge to reconsider the case in light of NFPIand any new arguments and evidence. On remand, the parties filed a supplement to theinitial 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 thatthe Farm admitted there were factual differences between this cause and NFPI. In NFPI, theNavajo tribe had entered into a treaty with the United States which contained a specificprovision for the exclusion of non-Indiana from the Navajo reservations. In this case, theCoeur d’Alene tribe has no treaty with the United States and has no specific agreementwith the United States granting the tribe the right to exclude non- Indians from itsreservation. Judge Stuller found these factual differences \”fatal to the Respondent’scase.\” The Farm again petitioned for review and review was directed on whether the judge erred ingranting the Secretary’s summary judgment motion and in distinguishing this case from NFPIon the bases that (1) a treaty relation does not exist between the United States and theCoeur d’Alene tribe, and (2) the agreement between the tribe and United States does notspecifically exclude non-Indians from the tribal reservation. [[4]]IIAThe Farm contends that Indian tribes possess powers of limited sovereignty which areretained until Congress explicitly removes them. It asserts that tribes \”possessthose aspects of sovereignty not withdrawn by treaty or statute, or by implication as anecessary result of their dependent status,\” citing United States v. Wheeler, 435U.S. 313, 323 (1978).The Commission’s decision in NFPI, the Farm argues, recognized that Congress would notabrogate tribal sovereignty without expressing its intent to do so:[W]e conclude that NFPI, as an enterprise established and operated by the tribe within thereservation, represents an exercise of the Navajo tribe’s sovereignty. Because we havealso decided that the Act does not abrogate the tribe’s rights under the Treaty, andtherefore 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 tribalenterprise, representing an exercise of sovereignty by the Coeur d’Alene tribe, and thatinspections 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 anintent to abrogate the sovereignty exercised by Indian tribes.The Farm argues further that there are no significant factual distinctions between thesituation involved in NFPI and the situation here. It states that both the Navajo andCoeur d’Alene are Indian tribes existing and organized unlaw federal law. Both tribespossess, and reside within the boundaries of, Congressionally- approved reservations.Neither the Navajo tribal enterprise nor the Farm are corporations distinct from the twotribes and thus both tribes are the employers of the employees in the enterprises. Theobjectives of the tribes in forming the enterprises, are identical: improving the economicand social condition of the people of the reservations, with the profit motive beingsecondary to these purposes. Both tribal enterprises have Indian preference hiringpractices, with the Farm employing only four non-Indians, one being the spouse of a tribalamber. Both tribal enterprises are owned by the respective tribes and are located ontribal-owned reservation land.The farm acknowledges the areas of factual difference between NFPI and this case, butargues that the differences do not call for a different result in the cases. The Farmconcedes there is no treaty between the United States and the Coeur d’Alene tribe, butargues that Congressional ratification in 1891 of the 1887 and 1889 Articles of Agreementwith the tribe (Exhs. 5, 6) put the Coeur d’Alene reservation on an equal footing withreservation 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 equalforce as if a treaty existed, and the Act may not be applied to detract from the tribe’ssovereignty.The Farm next argues that the absence from the Congressionally-ratified agreements betweenthe tribe and the United States of a specific clause for the exclusion of non-Indians isnot controlling. The power to exclude 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 thespecific right granted by Article II of the Treaty to exclude all outsiders from theReservation. . . . \” 8 BNA OSHC at 2101, 1980 CCH OSHD at p. 30,590.BThe Secretary submitted a letter on review stating that this case is governed by theCommission’s decision in NFPI[[5]] and that the Commission should overrule NFPI and affirmthe citations here. The Secretary also submitted to the Commission the briefs he filedwith the Tenth Circuit in NFPI stating that the reasons supporting his request for theoverruling of NFPI are set forth in those briefs. He contends that for the followingreasons the Commission erred in NFPI by holding that the Act could not be enforced againstthat tribal enterprise:(1) NFPI is an employer under 29 U.S.C. ?? 652(4) and (5) of the Act in that itconstitutes an organized group of persons engaged in a business affecting commerce whichemploys employees.(2) Federal laws of general application like the Act apply to Indians on the basis of theTuscarora case, supra where the U.S. Supreme Court upheld the taking of an Indian tribe’slands by the New York State Power Authority pursuant to a federal statutory schemeimplemented by the Federal Power Commission.(3) Application of the Act to NFPI would not interfere with the tribe’s treaty rights. TheSecretary states that the Commission in NFPI properly noted, but incorrectly applied, theimportant exception to the Tuscarora ruler i.e., general federal statutes will not beapplied to Indians if the application would infringe on the treaty rights of Indians. Toinvoke the exception, the Secretary argues, there must be some treaty right which exemptsIndians from the operation of the particular statute in question. In NFPI, however, therewas no exemptory treaty right.Alternatively, if the Commission disagrees that a specific exemption is necessary toinvoke the Tuscarora exception, the Secretary contends that the right of self-governmentis not violated by application of the Act to the tribal enterprise because the right ofself-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 ofself-government. Further, the Secretary argues, the tribal right of self-government has\”largely\” been viewed as a barrier to state, not federal, regulation ofreservation Indians.(4) If the Act is inconsistent with the Navajo treaty, the Act modifies the treaty. TheSecretary argues that the Commission in NFPI should have held that the Act’s broad wordingand pervasive purpose indicate a congressional intent to override any inconsistent Indiantreaty rights. The Secretary relies on United States v. Fryberg, 622 F.2d 1010, 1013 (9thCir. 1980), cert. den., 449 U.S. 1004 (1981), in which the Ninth Circuit upheld theconviction of an Indian for killing a bald eagle under the Bald Eagle Protection Act. Thecourt determined that in enacting that general federal statute Congress impliedly intendedto modify Indian treaty hunting rights so as to prohibit the killing of bald eagleswithout a permit. The Secretary further points out that the broad purposes of the NationalLabor Relations Act (NLRA) were deemed sufficient to override the treaty rights involvedin 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 anational labor policy by enacting NLRA and the NLRA applied to a private employer on aNavajo reservation in spite of the fact that the Navajo tribe had enacted a resolutionprohibiting unionization on the reservation.IIIThe Secretary argues that this case is governed by the Commission’s decision in NFPI andasks that the decision be overruled. The Farm agrees that NFPI governs and contends thatcase provides sufficient basis for a finding that the Act does not apply to the Farm. TheFarm does concede, however, that this case differs factually from NFPI in that the Coeurd’Alene tribe, unlike the Navajo tribe, does not have a treaty with the United Statesreserving to it the right of sovereignty and granting it the right to exclude outsidersfrom its reservation.We agree with the parties that the factual distinctions between this case and NFPI do notcall 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 rightsare established or confirmed, be it by treaty, stipulation, Act of Congress, or ExecutiveOrder.\” Therefore, it is of no consequence that instead of a treaty the United Stateshas recognized the tribe’s sovereignty by (1) an executive order establishing the Coeurd’Alene’s 1873 reservation boundaries and (2) a Congressionally-ratified Articles ofAgreement of 1887 whereby the Coeur d’Alene tribe ceded territory it formerly possessed tothe United States and received from the United States certain monies and the right to holdtheir reservation land as Indian land forever. See Merrion v. Jicarilla Apache Tribe, 455U.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 grantsthe Coeur d’Alene tribe the right to exclude outsiders from its reservation. The right toexclude outsiders from its reservation is a \”fundamental sovereign attributeintimately tied to a tribe’s ability to protect the integrity and order of its territoryand 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 executiveorder containing no express language restricting entry on reservation lands. The Court’sopinion declared that \”a hallmark of Indian sovereignty is the power to excludenon-Indians from Indian lands, . . . \” 455 U.S. at 141. The Court also favorablyendorsed the following statement from a 1958 treaties, Federal Indian Law, written by theUnited 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 uponwhich persons shall be permitted to enter its domain, to reside therein, and to dobusiness, provided only such determination is consistent with applicable Federal laws anddoes not infringe any vested rights of persons now occupying reservation lands underlawful. authority.455 U.S. at 146 n. 12.Having thus concluded that the factual differences between this case and NFPI areinconsequential, we turn to the Secretary’s argument that we should overrule NFPI. As hedid in NFPI, the Secretary relies on Tuscarora for the proposition that statutes ofgeneral applicability apply to Indians even if Indians are not expressly mentioned in thestatute. We concluded in NFPI, however, that this principle did not apply in derogation ofthe right of sovereignty reserved to Indian tribes unless a specific congressional intentto override the right is present; we found no such intent in the Occupational Safety andHealth Act. Our foregoing conclusion is supported by the Supreme Court’s subsequentdecision in Merrion, where the Court stated it must \”tread lightly in the absence ofclear indications of legislative intent,\” when considering arguments that a statuteimpliedly diminishes aspects of tribal sovereignty. 455 U.S. at 149. Similarly, inaffirming our decision in NFPI, the Tenth Circuit stated:Limitations on tribal self-government cannot be implied from a treaty or statute; theymust be expressly stated or otherwise made clear from surrounding circumstances andlegislative 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). 692F.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 thebroad language relied upon by the Secretary contained in Tuscarora that . . . a generalstatute in term applying to all persons includes Indians and their propertyinterests.\” 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 COMMISSIONRAY. A. DARLING, JR.EXECUTIVE SECRETARYDATED: NOV 16 1983The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office Bye-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-Lawsof the Coeur d’Alene tribe; (2) Chapter 21, entitled \”Exclusion, of Non-members fromthe Coeur d’Alene Indian Reservation,\” of the tribe’s Law and Order Code; (3) Map ofthe tribe’s 1873 reservation; (4) President U.S. Grant’sproclamation establishing the 1873 reservation; (5) Articles of Agreement of 1887, asadopted by Congress, in which the tribe formally ceded its land holdings with theexception of the reservation itself to the United States and the United States formallyestablished and recognized the reservation as Indian Land; (6) Articles of Agreement of1889 in which the tribe ceded the northern portion of the reservation to the United Statesand reduced the size of the reservation to its present 350,000 acres; (7) Plan ofOperations 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 NFPIwas upheld by the Tenth Circuit in Donovan v. Navajo Forest Products Industries, 692 F.2d709 (10th Cir. 1982). The court held thatThe Navajo treaty recognizes the Indian sovereignty of the Navajos and their right ofself-government. We agree with the Commission that the application of OSHA to NFPI wouldconstitute 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 dilutethe principles of tribal sovereignty and self-government recognized in the treaty….TheUnited States retains legislative plenary power to divest Indian tribes of any attributesof sovereignty. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). Absent some expression ofsuch legislative intent, however, we shall not permit divestiture of the tribal power tomanage reservation lands so as to exclude non-Indians from entering thereon merely on thepredicate that federal statutes of general application apply to Indians just as they do toall other persons (in this case \”employers\”) unless Indians are expresslyexcepted therefrom….692 F.2d at 721, 714.[[5]]The Secretary’s letter was submitted prior to the issuance of the Tenth Circuit’sdecision in NFPI.”