“Docket No. 89-0162_89-0163 SECRETARY OF LABOR,Complainant,v.WARM SPRINGS FOREST PRODUCTSINDUSTRIES, and THE CONFEDERATEDTRIBES OF THE WARM SPRINGSRESERVATION,Respondents.OSHRC Docket Nos. 89-0162 and 89-0163ORDER These cases are before us at the direction of the United StatesCourt of Appeals for the Ninth Circuit. U.S. Department of Labor v. OSHRC, DocketNo. 90-70082 (9th Cir. June 7, 1991), rev’g, Warm Springs Forest ProductsIndustries, 14 BNA OSHC 1420, 1987-90 CCH OSHD ? 28,771 (No. 89-162, 1989). Inaccordance with the Ninth Circuit’s decision and mandate, we remand the cases toAdministrative Law Judge Benjamin R. Loye to reconsider the Secretary’s complaint.Warm Springs Forest Products Industries (\”WarmsSprings\”) is a sawmill owned and operated by Respondent, The Confederated Tribes ofthe Warm Springs Reservation (\”Tribes\”). After a compliance officer from theOccupational Safety and Health Administration (\”OSHA\”) conducted an inspectionat the sawmill and OSHA issued a citation, the Secretary of Labor (\”Secretary\”)filed a complaint. Judge Loye then granted Respondents’ motion to dismiss these cases.The judge ruled that enforcement of the Occupational Safety and Health Act (the\”Act\”), 29 U.S.C. ?? 651-678, at the sawmill on tribal reservation lands –without explicit Congressional authorization — would infringe upon the exclusive use ofthose lands guaranteed the Tribes under the Treaty with the Tribes of Middle Oregon ofJune 25, 1855, 12 Stat. 963 (\”Treaty\”).The Secretary filed a petition for discretionary review withthe Commission, but the case was not directed for review. However, the Ninth Circuitgranted the petition for review filed with it by the Secretary.In Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113(9th Cir. 1985), the court employed the established principle that \”a general statutein terms applying to all persons includes Indians and their property rightinterests\”, FPC v. Tuscarora Indian Nation, 362 U.S. 99,116 (1960), to holdthat the Act applied to a commercial enterprise wholly owned and operated by a NativeAmerican tribe. It also noted, however, that it recognized certain exceptions to thegeneral principle, one of which is central to this case — a federal statute of generalapplicability that is silent on the issue of applicability to Indian tribes, like the Act,does not apply to them if the application of the law to the tribe would abrogate rightsguaranteed by Indian treaties.The court interpreted the treaty provision \”mark[ing]out\” the reservation for the \”exclusive use\” of Native Americans andprohibiting non-Native Americans from residing there without the permission of the agentand superintendent to set forth a general right of exclusion. Docket No. 90-70082, slipop. at 7153. The court concluded that the conflict between the general right of exclusionand the limited entry necessary to enforce the OSH Act was not sufficient to barapplication of the Act to the Warm Springs mill. The court remanded the case to theCommission for us to \”reconsider the Secretary’s complaint,\” Docket No.90-70082, slip op. at 7156.Accordingly, we remand the case to Judge Loye forreconsideration consistent with the decision of the Ninth Circuit.Edwin G Foulke, Jr.ChairmanVelma Montoya CommissionerDonald G. Wiseman\u00a0 CommissionerDated: July 31, 1991SECRETARY OF LABOR,Complainant,v.WARM SPRINGS FOREST PRODUCTSINDUSTRIES, and THE CONFEDERATEDTRIBES OF THE WARM SPRINGSRESERVATION,Respondent.OSHRC DOCKET NOS. 89-0162 and 89-0163APPEARANCES: For the Complainant:Matthew L. Vadnal, Esq., Office of theSolicitor, U.S. Department of Labor, Seattle, WAFor the Respondent:\u00a0 James D. Noteboom, Esq., Marceau, Karnopp,\u00a0 Petersen, Noteboom &Hubel, Bend, ORDECISION AND ORDERLoye, Judge:This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.Section 651 et seg.; hereafter called the \”Act\”).Respondent has filed a Motion to Dismiss in the above captionedactions, alleging that it is a federally recognized Indian tribe and that, 1) it is not anemployer covered by the Occupational Safety and Health Act, 29 U.S.C. ?651 et seq.(hereafter referred to as \”the Act\”); (2) application of the Act to respondentwould impermissibly infringe upon the tribe’s treaty rights and (3) the instant action isbarred by the respondent’s sovereign immunity.On July 24, 1989, a hearing on the motion was held in Eugene,Oregon. Both parties have submitted briefs.For the reasons discussed below, this Judge finds thatenforcement of the Act would infringe upon the tribe’s treaty rights. Respondent’s motionis, therefore, granted and the above docketed cases are DISMISSED.In Coeur d’Alene Tribal Farm, 114. BNA OSHC 1703 (No.78-6081, 78-6082, 1983), the Commission held that the right to exclude outsiders fromtheir reservations is a \”fundamental sovereign attribute\” of Indian tribes, andas such is not overridden by a statute of general applicability such as the OccupationalSafety and Health Act of 1970 (29 U.S.C. ?651 et seq.), which contains no indication ofany congressional intent to limit tribal self government. Id. at 1708-1709. The Commissionagreed with the respondent that inspections of its worksites by the Occupational Safetyand Health Administration infringed on its inherent tribal rights and vacated theSecretary’s citation.The Ninth Circuit overruled the Commission, holding that inenacting a statute of general applicability, Congress invokes its plenary power to limitthe inherent sovereignty of Indian tribes unless it expressly excludes the tribes fromoperation of the statute. Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113, 12BNA OSHC 1169 (9th Cir. 1985). The Ninth Circuit Court, however, noted a number oflimitations on its own decision. The court there stated that such a federal statute ofgeneral applicability which is silent on the subject of Indian tribes is unenforceable,inter alia, where its provisions operate in derogation of rights guaranteed by Indiantreaties. Id.Unlike Coeur d’Alene Tribal Farm, this case involves atreaty between the Tribes of Middle Oregon and the United States government. The Treatysets apart a tract of land for the confederated bands of Indians: \”[a]ll of whichtract shall be set apart, and, so far as necessary, surveyed and marked out for theirexclusive use, nor shall any white person be permitted to reside upon the same without theconcurrent permission of the agent and superintendent.\” (Exhibit A, Article 1, p.41).The Secretary’s argument that the cited Treaty provision wasintended only to prohibit whites from residing on reservation lands without the permissionof the agent and superintendent and placed no restrictions on the exercise of governmentalpowers is rejected as inconsistent with both the treaty language and the history of theU.S. Government’s dealings with the Indian tribes.It is the opinion of this Judge that, the treaty evidences anintent of the parties to exclude the white man from reservation lands for any and allpurposes except as therein enumerated.[[1]] Enforcement of the Act on reservation landswould, therefore, infringe upon the exclusive use guaranteed under the Treaty withoutexplicit Congressional authorization.So ORDERED.Benjamin R. Loye Judge, OSHRCDated: November 6, 1989FOOTNOTES:[[1]] Article 9. The said confederated bands agree thatwhensoever, in the opinion of the President of the United States, the public interest mayrequire it, that all roads, highways, and railroads shall have the right of way throughthe reservation herein designated, or which may at any time here after be set apart as areservation for said Indians.”