“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 anenterprise of the Yakima Indian tribe and is located on the YakimaIndian reservation. It was cited by the Secretary for a number ofalleged violations of the Occupational Safety and Health Act of 1970, 29U.S.C. ?? 651-78 (\”the Act\”). Administrative Law Judge Benjamin R. Loyevacated the citations on the ground that application of the Act to Mt.Adams would abrogate rights granted to the Yakima Indians by treaty. Wereverse the judge’s decision because it is contrary to precedent in theCourt 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, 751F.2d 1113 (9th Cir. 1985), the Commission held that the Secretary didnot have jurisdiction over a commercial enterprise of the Coeur d’AleneIndian tribe located on the tribe’s reservation land. While noting thatthe Ninth Circuit had reversed the Commission’s decision in Coeurd’Alene, the judge reasoned that Coeur d’Alene was distinguishablebecause the tribe in that case did not have a formal treaty with theUnited States Government.Subsequent to the judge’s decision, the Ninth Circuit decided Departmentof Labor v. OSHRC (Warm Springs Forest Prods. Indus.), 935 F.2d 182 (9thCir. 1991). That case held that the general right of the ConfederatedTribes of Warm Springs conferred by treaty to exclude non-Indians fromthe Warm Springs Reservation did not bar application of the Act to asawmill owned and operated by the tribes. The court noted that the Actprovides only for a limited entry necessary for investigations toenforce the Act and reasoned that \”were we to construe the Treaty rightof exclusion broadly to bar application of the Act, the enforcement ofnearly all generally applicable federal laws would be nullified.\” Id. at187. The court also reiterated the holding it had previously reached inCoeur d’Alene that, as a general proposition, application of the Act toIndian enterprises engaging in interstate commerce with non-Indians doesnot 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 thelands granted to them is virtually identical to the language of thetreaty at issue in Warm Springs. Both treaties grant the Indians\”exclusive\” use of the land and provide that non-Indians generally maynot enter reservation lands without permission.[[1]] Therefore, weconclude that, if confronted with the issue presented in this case, theNinth Circuit would reach the same conclusion as it did in Warm Springsand would hold that the general right of the Yakima Indians to excludenon-Indians is insufficient to preclude enforcement of the Act againstMt. Adams. Since this case arises within the Ninth Circuit, WarmSprings is dispositive of the question before us here.[[2]]Judge Loye’s decision was based on Mt. Adams’ motion to dismiss theSecretary’s citations and complaint. No evidentiary hearing has beenheld, nor, for that matter, has Mt. Adams as yet filed an answer to theSecretary’s complaint. Accordingly, we reverse and remand for furtherproceedings on the merits of the alleged violations.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: November 6, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.MT. ADAMS FURNITURE COMPANY,Respondent.OSHRC DOCKET NO. 88-2239APPEARANCES:For the Complainant:Matthew Vadnal, Esq., Office of the Solicitor U.S. Department of Labor,Seattle, WAFor 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 of1970 (29 U.S.C. Section 651 _et seq_.; hereafter called the \”Act\”).On August 9 and 10, 1988, OSHA conducted an inspection of therespondent’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 separatecitations were issued under 29 C.F.R. 1910 and one citation under 29C.F.R. 1904 on September 1, 1988. The case was docketed with theCommission on October 14, 1988, after notice of contest was filed onSeptember 25, 1988, by the respondent. The complaint was filed with theCommission on October 25, 1988. By Order of the Administrative LawJudge dated November 7, 1988, the letter of contest of respondent datedSeptember 25, 1988, was treated as a Motion to Dismiss. The partiesthereafter filed briefs directed to the issues herein and oral argumentwas made by both parties on the motion on February 13, 1989 wherein theTreaty and the Treaty minutes were received as Exhibit A. Thereafterthe parties further briefed issues herein and the matter is now readyfor ruling on the Motion to Dismiss._DISCUSSION_On June 9, 1855, a Treaty was negotiated between the Yakima IndianNation and the United States (Exhibit A) ceding certain lands to theUnited States and reserving unto the Yakima’s a certain tract of land asdefined within such Treaty document partially as follows:\”. . . for the exclusive use and benefit of said confederated tribes andbands of Indians, as an Indian reservation; nor shall any white man,excepting those in the employment of the Indian Department, be permittedto reside upon the said reservation without permission of the tribe. . . \”This Treaty did not specifically reserve the right unto the Indians toexclude outsiders. However, the Treaty minutes, taken contemporaneouslywith the discussions leading up to the actual signing of the Treatydocument, clearly indicates the understanding of the Yakimas as to theimport of the Treaty. It is apparent to the undersigned that suchTreaty minutes guarantee to the Yakimas a \”tract of land into which nowhite man could go without their consent.\” (Treaty minutes p. 8-10)Further, the understanding of the Yakimas as to the intent and purposeof the Treaty was clearly spelled out in the following colloquy on p. 41of the minutes:_Looking Glass_ (a Chief of the Yakimas) \”I want to know if an Agentwill 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 whitesfrom pushing into our Country\”?_Gen. Palmer_ \”Certainly.\”_Looking Glass_ \”Will you mark the piece of Country I have marked andsay the Agent shall keep the whites out\”?_Gen. Palmer_ \”None will be permitted to go there but the Agent andpersons employed, without your consent.\”This is most persuasive; construing a Treaty in the sense in which itwas understood by the Indians has been the consistent historic hallmarkof the ruling of the Courts. This understanding must be derived notonly from the express language of the Treaty and the minutes, but fromall circumstances surrounding its execution. _United States v. Winans_,198 U.S. 371 (1905); _Washington_ _Passenger Fishing VesselAssociation_, 443 U.S. 685 (1979). Such interpretation must be done notonly to protect an unlettered people, (i.e., the Indians), but toconstrue 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 pictureof the understanding of the Indians as to the import of the Treaty upontheir 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 fromtheir reservation is a \”fundamental sovereign attribute\” of Indiantribes, and as such is not overridden by a statute of generalapplicability such as the Occupational Safety and Health Act of 1970 (29U.S.C. 651, et seq.) which contains no indication of any Congressionalintent to limit tribal self government. Id. at 1708-1709. TheCommission agreed with the respondent that inspections of its worksitesby the Occupational Safety and Health Administration infringed upon itsinherent tribal rights and vacated the Secretary’s citation.The Ninth Circuit overruled the Commission, holding that in enacting astatute of general applicability, Congress invokes its plenary power tolimit the inherent sovereignty of Indian tribes unless it expresslyexcludes the tribes from operation of the statute. _Donovan v. Couerd’Alene Tribal Farm_, 751 F.2d 1113, 12 BNA OSHC 1169 (9th Cir. 1985)The Court stated, however, that a federal statute of generalapplicability that is silent on the subject of Indian tribes will not beapplied in derogation of rights guaranteed by Indian Treaties. Unlikethe Coeur d’Alene tribe in the Ninth Circuit case, the Yakimas have aTreaty with the United States (Exhibit A) which sets apart a tract ofland unto the Indians for their exclusive use. The Treaty, along withthe minutes taken at the time of its negotiation, clearly discloses thelimitations upon the white man and his activities upon the land reservedunto the Indians. The _Coeur d’Alene_ case above is clearlydistinguishable from the instant case by the existence of the YakimaTreaty and its provisions, the Treaty minutes and the circumstances ofultimate understanding thereof by the Indians, all made remarkably clearby a reading of both documents._DECISION_:Based upon the foregoing, the undersigned finds that the application ofthe Occupational Safety and Health Act would infringe upon the rightsguaranteed to the Indians by the Yakima Treaty. The citation in theabove captioned action is, therefore, DISMISSED.It is SO ORDERED.Benjamin R. LoyeJudge, OSHRCDated: May 17, 1989FOOTNOTES:[[1]] The treaty at issue before the court in Warm Springs provided asfollows:All of which tract shall be set apart, and, so far as necessary,surveyed and marked out for their exclusive use; nor shall any whiteperson be permitted to reside upon the same without the concurrentpermission 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 beconstrued narrowly to prohibit non-Indians only from occupyingreservation land. The court concluded that \”[r]ead within the contextof the entire Treaty and in light of the history of Native Americanrelations, the provision sets forth a general right of exclusion [ofnon-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, surveyedand marked out, for the exclusive use and benefit of said. . . Indians,as an Indian reservation; nor shall any white man, excepting those inthe employment of the Indian Department, be permitted to reside upon thesaid reservation without permission of the tribe and the Superintendentand 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 Commissionheld, and the Tenth Circuit agreed, that a sawmill operated by theNavajo tribal government is not subject to the Act. In reversing theCommission’s decision in Coeur d’Alene, the Ninth Circuit expresseddisagreement with the Tenth Circuit’s decision in NFPI. 751 F.2d at 1117n.3.”