“Docket No. 88-2239 SECRETARY OF LABOR,Complainant, v. MT. ADAMS FURNITURE CO.,Respondent.OSHRC Docket No. 88-2239DECISION AND REMAND ORDERBEFORE: FOULKE, Chairman; WISEMAN and MONTOYA,Commissioners. BY THE COMMISSION:The employer in this case, Mt. Adams FurnitureCo. (\”Mt. Adams\”), is an enterprise of the Yakima Indian tribe and is located onthe Yakima Indian reservation.\u00a0 It was cited by the Secretary for a number of allegedviolations of the Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-78(\”the Act\”).\u00a0 Administrative Law Judge Benjamin R. Loye vacated thecitations on the ground that application of the Act to Mt. Adams would abrogate rightsgranted to the Yakima Indians by treaty.\u00a0 We reverse the judge’s decision because itis contrary to precedent in the Court of Appeals for the Ninth Circuit, where this casearises.Judge Loye observed that in Coeur d’Alene TribalFarm, 11 BNA OSHC 1705, 1983-84 CCH OSHD ? 26,732 (No. 78-6081, 1983) (consolidated),rev’d, 751 F.2d 1113 (9th Cir. 1985), the Commission held that the Secretary did not havejurisdiction over a commercial enterprise of the Coeur d’Alene Indian tribe located on thetribe’s reservation land. While noting that the Ninth Circuit had reversed theCommission’s decision in Coeur d’Alene, the judge reasoned that Coeur d’Alene wasdistinguishable because the tribe in that case did not have a formal treaty with theUnited States Government.Subsequent to the judge’s decision, the NinthCircuit decided Department of Labor v. OSHRC (Warm Springs Forest Prods. Indus.), 935 F.2d182 (9th Cir. 1991).\u00a0 That case held that the general right of the ConfederatedTribes of Warm Springs conferred by treaty to exclude non-Indians from the Warm SpringsReservation did not bar application of the Act to a sawmill owned and operated by thetribes. \u00a0 The court noted that the Act provides only for a limited entry necessaryfor investigations to enforce the Act and reasoned that \”were we to construe theTreaty right of exclusion broadly to bar application of the Act, the enforcement of nearlyall generally applicable federal laws would be nullified.\” Id. at 187.\u00a0 Thecourt also reiterated the holding it had previously reached in Coeur d’Alene that, as ageneral proposition, application of the Act to Indian enterprises engaging in interstatecommerce with non-Indians does not interfere with the rights of sovereignty granted toIndian tribes.\u00a0 Id. at 184 (citing Coeur d’Alene, 751 F.2d at 1116).The language of the treaty granting the Yakimatribe authority over the lands granted to them is virtually identical to the language ofthe treaty at issue in Warm Springs.\u00a0 Both treaties grant the Indians\”exclusive\” use of the land and provide that non-Indians generally may not enterreservation lands without permission.[[1]]\u00a0 Therefore, we conclude that, ifconfronted with the issue presented in this case, the Ninth Circuit would reach the sameconclusion as it did in Warm Springs and would hold that the general right of the YakimaIndians to exclude non-Indians is insufficient to preclude enforcement of the Act againstMt. Adams.\u00a0 Since this case arises within the Ninth Circuit, Warm Springs isdispositive of the question before us here.[[2]]Judge Loye’s decision was based on Mt. Adams’motion to dismiss the Secretary’s citations and complaint.\u00a0 No evidentiary hearinghas been held, nor, for that matter, has Mt. Adams as yet filed an answer to theSecretary’s complaint.\u00a0 Accordingly, we reverse and remand for further proceedings onthe merits of the alleged violations.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: November 6, 1991SECRETARY 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, WADECISION AND ORDERLoye, Judge:This proceeding arises under the Occupational Safety and Health Act of 1970 (29U.S.C. Section 651 et seq.; hereafter called the \”Act\”).On August 9 and 10, 1988, OSHA conducted aninspection of the respondent’s operation located at an inspection site denominated as\”Yakima Indian Nation Industrial Site, Jones Road, Wapato, Washington.\u00a0 (SeeOSHA Citation) \”Upon completion of such inspection, 23 separate citations were issuedunder 29 C.F.R. 1910 and one citation under 29 C.F.R. 1904 on September 1, 1988.\u00a0 Thecase was docketed with the Commission on October 14, 1988, after notice of contest wasfiled on September 25, 1988, by the respondent.\u00a0 The complaint was filed with theCommission on October 25, 1988.\u00a0 By Order of the Administrative Law Judge datedNovember 7, 1988, the letter of contest of respondent dated September 25, 1988, wastreated as a Motion to Dismiss.\u00a0 The parties thereafter filed briefs directed to theissues herein and oral argument was made by both parties on the motion on February 13,1989 wherein the Treaty and the Treaty minutes were received as Exhibit A.\u00a0Thereafter the parties further briefed issues herein and the matter is now ready forruling on the Motion to Dismiss. DISCUSSIONOn June 9, 1855, a Treaty was negotiated betweenthe Yakima Indian Nation and the United States (Exhibit A) ceding certain lands to theUnited States and reserving unto the Yakima’s a certain tract of land as defined withinsuch Treaty document partially as follows:\”. . . for the exclusive use and benefit ofsaid confederated tribes and bands of Indians, as an Indian reservation; nor shall anywhite man, excepting those in the employment of the Indian Department, be permitted toreside upon the said reservation without permission of the tribe. . . \”This Treaty did not specifically reserve theright unto the Indians to exclude outsiders.\u00a0 However, the Treaty minutes, takencontemporaneously with the discussions leading up to the actual signing of the Treatydocument, clearly indicates the understanding of the Yakimas as to the import of theTreaty.\u00a0 It is apparent to the undersigned that such Treaty minutes guarantee to theYakimas a \”tract of land into which no white man could go without theirconsent.\” (Treaty minutes p. 8-10) Further, the understanding of the Yakimas as tothe intent and purpose of the Treaty was clearly spelled out in the following colloquy onp. 41 of the minutes:Looking Glass (a Chief of the Yakimas)\”I want to know if an Agent will stay up in my Country\”?Gov. Stevens \”As long as there are people.\”Looking Glass \”Will the Agent bethere that long to keep the whites from pushing into our Country\”?Gen. Palmer \”Certainly.\”Looking Glass \”Will you mark thepiece of Country I have marked and say the Agent shall keep the whites out\”?Gen. Palmer \”None will be permittedto go there but the Agent and persons employed, without your consent.\”This is most persuasive; construing a Treaty inthe sense in which it was understood by the Indians has been the consistent historichallmark of the ruling of the Courts.\u00a0 This understanding must be derived not onlyfrom the express language of the Treaty and the minutes, but from all circumstancessurrounding its execution.\u00a0 United States v. Winans, 198 U.S. 371 (1905); WashingtonPassenger Fishing Vessel Association, 443 U.S. 685 (1979).\u00a0 Suchinterpretation must be done not only to protect an unlettered people, (i.e., the Indians),but to construe the same as such was understood at the time it was executed.\u00a0 UnitedStates 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).\u00a0 A reading of the Treaty and the minutes, together, paint aclear picture of the understanding of the Indians as to the import of the Treaty upontheir rights.In Coeur d’Alene Tribal Farm, 11 BNA OSHC1705 (No. 78-6081, 78-6082, 1983), the Commission held that the right to exclude outsidersfrom their reservation is a \”fundamental sovereign attribute\” of Indian tribes,and as such is not overridden by a statute of general applicability such as theOccupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.) which contains noindication of any Congressional intent to limit tribal self government.\u00a0 Id. at1708-1709.\u00a0 The Commission agreed with the respondent that inspections of itsworksites by the Occupational Safety and Health Administration infringed upon its inherenttribal 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 plenarypower to limit the inherent sovereignty of Indian tribes unless it expressly excludes thetribes from operation of the statute.\u00a0 Donovan v. Couer d’Alene Tribal Farm,751 F.2d 1113, 12 BNA OSHC 1169 (9th Cir. 1985) The Court stated, however, that a federalstatute of general applicability that is silent on the subject of Indian tribes will notbe applied in derogation of rights guaranteed by Indian Treaties.\u00a0 Unlike the Coeurd’Alene tribe in the Ninth Circuit case, the Yakimas have a Treaty with the United States(Exhibit A) which sets apart a tract of land unto the Indians for their exclusiveuse.\u00a0 The Treaty, along with the minutes taken at the time of its negotiation,clearly discloses the limitations upon the white man and his activities upon the landreserved unto the Indians. \u00a0 The Coeur d’Alene case above is clearlydistinguishable from the instant case by the existence of the Yakima Treaty and itsprovisions, the Treaty minutes and the circumstances of ultimate understanding thereof bythe Indians, all made remarkably clear by a reading of both documents.DECISION: Based upon the foregoing, the undersigned findsthat the application of the Occupational Safety and Health Act would infringe upon therights guaranteed to the Indians by the Yakima Treaty.\u00a0 The citation in the abovecaptioned action is, therefore, DISMISSED.It is SO ORDERED.Benjamin R. Loye Judge, OSHRCDated: May 17, 1989FOOTNOTES: [[1]] The treaty at issue before the court inWarm Springs provided as follows:All of which tract shall be set apart, and, sofar as necessary, surveyed and marked out for their exclusive use; nor shall any whiteperson be permitted to reside upon the same without the concurrent permission of the agentand superintendent.935 F.2d at 184 (quoting Treaty, Art. 1, para.3).The court rejected the argument that the term\”reside\” should be construed narrowly to prohibit non-Indians only fromoccupying reservation land.\u00a0 The court concluded that \”[r]ead within the contextof the entire Treaty and in light of the history of Native American relations, theprovision sets forth a general right of exclusion [of non-Indians].\” Id. at 185.Similarly, the treaty creating the Yakima Indianreservation states:All of which tract shall be set apart and, sofar as necessary, surveyed and marked out, for the exclusive use and benefit of said. . .Indians, as an Indian reservation; nor shall any white man, excepting those in theemployment of the Indian Department, be permitted to reside upon the said reservationwithout permission of the tribe and the Superintendent and agent. Treaty with the Yakimas, 1855, Art. II.[[2]] In Coeur d’Alene the Commission relied onNavajo 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 Commission held, andthe Tenth Circuit agreed, that a sawmill operated by the Navajo tribal government is notsubject to the Act.\u00a0 In reversing the Commission’s decision in Coeur d’Alene, theNinth Circuit expressed disagreement with the Tenth Circuit’s decision in NFPI. 751 F.2dat 1117 n.3.”