Akwesasne Mohawk Casino

Plain-English summary

OSHA inspected the tribal casino and a nearby warehouse and issued two citations. The judge dismissed them on the theory that applying the OSH Act would violate treaties covering the Six Nations. The Commission held that the St. Regis Indians and their reservation were governed by different treaties and were not parties to the treaties relied on by the judge. The treaties that clearly applied contained no right that OSHA enforcement would abrogate. The Commission reversed the dismissal and remanded the case for further proceedings.

Decision snapshot

• Cited standard(s): None specified in this jurisdictional ruling.
• Outcome: The dismissal of both citations was reversed, and the case was remanded.
• Key point: OSHA jurisdiction did not abrogate treaty rights because the treaties relied on below did not apply to the St. Regis Indians, and the applicable treaties guaranteed no conflicting right.

Full text (OSHRC public release)

Akwesasne Mowhawk Casino, Docket No. 01-1424

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 01-1424

AKWESASNE MOHAWK CASINO,

Respondent.

DECISION AND REMAND

Before: RAILTON, Chairman; STEPHENS and ROGERS, Commissioners.

BY THE COMMISSION:

Akwesasne Mohawk Casino ("AMC") is located in Hogansburg, New York, on
the St. Regis Indian Reservation. The St. Regis Reservation straddles the St. Lawrence
River and includes land in northern New York and in the Canadian provinces of Ontario
and Quebec. AMC employs approximately 170 people, about half of whom are American
Indian. Pursuant to a warrant approved by the United States District Court for the
Northern District of New York, the Occupational Safety and Health Administration
(“OSHA”) inspected AMC and a warehouse used by AMC on March 26, 2001. As a
result of the inspection, the Secretary of Labor (“the Secretary”) issued two citations to
AMC. AMC timely contested the citations, and on August 9, 2001 the Secretary filed a
complaint with the Commission. On September 4, 2001, AMC filed a motion to dismiss
the citations and complaint, alleging that OSHA lacks subject matter jurisdiction over its
operations.

Before us on review is an order of Commission Administrative Law Judge
Michael Schoenfeld in which he granted AMC's motion to dismiss the citations. The
judge based his order on a finding that application of the Occupational Safety and Health
Act, 29 U.S.C. § § 651-678 ("OSH Act"), to the working conditions at AMC would
abrogate rights guaranteed by treaties between the United States and Indian tribes,
concluding that AMC qualified for an exception to the rule that "...a general statute in
terms applying to all persons includes Indians and their property interests." Federal
Power Commission v. Tuscarora Indian Nation , 362 U.S. 99, 116 (1960).

The judge relied
on two treaties cited by AMC: the Fort Stanwix Treaty of 1784, 7 Stat. 15, and the Canandaigua
Treaty of 1794, 7 Stat. 44. Because we find those two treaties do not apply to the St. Regis
Indians or the land upon which AMC is located, we remand this case for further proceedings.

I. Treaties

The treaties relied on by the judge were among a series of treaties the United
States entered into with the Six Nations of the Iroquois Confederacy beginning in 1784.
At that time the Six Nations was comprised of the Mohawk, Onondaga, Seneca, Oneida,
Cayuga, and Tuscarora tribes. Onondaga Nation v. Thacher , 189 U.S. 306 (1903). The
Fort Stanwix Treaty of 1784 established western and southern boundaries for the lands of
the Six Nations, and provided that the Six Nations “shall be secured in the peaceful
possession of the lands” they inhabited east and north of those boundaries. The Fort
Harmar Treaty of 1789, 7 Stat. 33, “renew[ed] and confirm[ed] all the engagements and
stipulations entered into at the...treaty at Fort Stanwix,” and extended the Fort Stanwix
Treaty’s protections to the Onondagas, Senecas, and Cayugas, three nations that had not
signed that treaty in 1784. The Canandaigua Treaty of 1794 “acknowledge[d] the lands
reserved to the Oneida, Onondaga and Cayuga Nations, in their respective treaties with
the state of New York,”

and established a reservation for the Seneca Nation. That treaty also
stated:

The United States having thus described and acknowledged what lands
belong to the Oneidas, Onondagas, Cayugas and Senekas, and engaged
never to claim the same, nor to disturb them, or any of the Six Nations, or
their Indian friends residing thereon and united with them, in the free use
and enjoyment thereof: Now, the Six Nations, and each of them, hereby
engage that they will never claim any other lands within the boundaries of
the United States; nor ever disturb the people of the United States in the free
use and enjoyment thereof.

7 Stat. 44, Article 4.

Subsequent to the Canandaigua Treaty, the United States entered into two treaties
that addressed the St. Regis Indians specifically. The St. Regis Reservation itself was
established by a 1796 treaty with the Seven Nations of Canada (“Seven Nations Treaty”),
7 Stat. 55, which reserved a “tract equal to six miles square...to be applied to the use of
the Indians of the village of St. Regis.” An 1838 treaty with the New York Indians (“New
York Indians Treaty”), 7 Stat. 550, provided for payment to the St. Regis and other
Indians if the tribes moved to the Territory of Wisconsin. Article 4 of the treaty
guaranteed that in their “new homes” the Indians would have “the right to administer their
own laws[] subject...to the legislation of the Congress of the United States[] regulating
trade and intercourse with the Indians.” That treaty did not provide the same guaranty
with respect to the Indians’ present homes, however.

II. Discussion

The question whether the St. Regis Indians and their reservation are covered by
the Fort Stanwix and Canandaigua treaties was addressed at length by the Court for
Franklin County, New York in People v. Boots , 434 N.Y.S.2d 850 (Franklin Co. Ct.
1980). The St. Regis Indians are residents of, and their reservation is located in, Franklin
County. In Boots , the court considered an argument by a Mohawk resident of the St.
Regis Reservation that pursuant to the terms of the Canandaigua Treaty the courts of New
York lack criminal jurisdiction over the reservation and its residents. The court found it
was the settled law of the state that the Seven Nations Treaty of 1796 and not the
Canandaigua Treaty governed the rights of Indians on the St. Regis Reservation. The
court relied on historical evidence for its conclusion that, although most of the St. Regis
Indians are ethnically Mohawk, historically the St. Regis Tribe was part of the Seven
Nations of Canada, not the Six Nations of the Iroquois Confederacy. The court further
found that, although in 1888 the Six Nations adopted the St. Regis Indians as “keepers of
the eastern door” after the Mohawks lost that status by moving to Ontario, the “symbolic
actions of the Iroquois Grand Council” were insufficient to bring the St. Regis Indians
within the Canandaigua Treaty. Id. For these reasons, the court rejected the defendant’s
arguments, finding that the 1796 treaty, not the 1794 Canandaigua Treaty with the Six
Nations, applied to the St. Regis Reservation. Although the court did not address the 1784
Fort Stanwix Treaty specifically, its conclusions regarding the St. Regis Indians' historical
status as members of the Seven Nations of Canada, rather than the Six Nations of the
Iroquois Confederacy, strongly supports a finding that the St. Regis Indians were not
parties to that treaty either. The reasoning and careful analysis used by the Franklin
County Court are very persuasive, and we find ourselves in agreement.

AMC claims, however, that Boots is based on a misreading of the New York Court
of Appeals’ decision in St. Regis Tribe of Mohawk Indians v. State of New York , 5 N.Y.2d
24 (1958), cert denied , 359 U.S. 910, where the court found the 1796 Seven Nations
Treaty applicable to the St. Regis Indians but did not discuss the Fort Stanwix and
Canandaigua treaties or find those treaties inapplicable. We disagree. The court in Boots
did not rely solely on St. Regis for its finding that the Canandaigua Treaty does not apply
to the St. Regis Indians. Boots contains an extensive review of the historical evidence
relating to the St. Regis Indians and their relationship with the Six Nations. Thus, AMC is
wrong to the extent it argues Boots rests on a misreading of St. Regis .

AMC asserts that the Seven Nations rejoined their Six Nations kin in a 1760
declaration of unity. Even if this is true, it does not alter the fact that the United States
dealt with the Six and Seven Nations separately in the treaties of 1794 and 1796, and that
the St. Regis Indians were clearly considered part of the Seven Nations in 1796. Boots
indicates the St. Regis Indians were eventually adopted by the Six Nations as “keepers of
the eastern door,” but their “adoption” apparently did not take place until 1888.
Moreover, if the St. Regis Indians were adopted to succeed the Mohawks as “keepers of
the eastern door” in 1888, this implies the St. Regis Tribe was not considered part of the
Six Nations prior to that year.

AMC cites several cases in which courts allegedly found the St. Regis Indians are
“Mohawks” for purposes of the Fort Stanwix and Canandaigua treaties, including Lazore
v. C.I.R. , 11 F.3d 1180 (3d Cir. 1993), United States v. Brown , 824 F.Supp. (S.D. Ohio
1993), and Oneida Indian Nation v. New York , 194 F. Supp. 2d 104, 116 (N.D.N.Y.
2002). There is no indication, however, that in any of these cases the court directly
considered that issue. The first two cases, which involve St. Regis or Mohawk Indians,
seem to simply assume the St. Regis Indians are “Mohawks” for purposes of treaties with
the Six Nations; neither case specifically addresses that issue. The last case involves an
Oneida Indian land claim, and simply identifies the St. Regis Indians as members of the
Iroquois Confederacy, without stating when the tribe entered the Confederacy. Because
Boots specifically addressed the St. Regis Indians' status in the context of the
Canandaigua Treaty and reviewed the historical evidence rather extensively, we give
more weight to the court’s finding that the St. Regis Indians are not “Mohawks” for
purposes of that treaty. Although Boots did not address whether the St. Regis Indians are
“Mohawks” for purposes of the Fort Stanwix Treaty, the court’s analysis supports a
negative finding on that issue as well.

We also conclude that, even if the St. Regis Indians could be considered
"Mohawks" for purposes of treaties with the Six Nations, there is insufficient evidence
Mohawks signed either the Fort Stanwix or Canandaigua treaties. The Boots court found
that Mohawks never signed the latter treaty: “[A]lthough unlike the [Fort Harmar] Treaty
of 1789 the [Canandaigua] Treaty of 1794 does not specifically exclude the Mohawks
unless they signed it, the fact remains that they were not present during its negotiation,
despite repeated invitations, and they did not sign it.” 434 N.Y.S. 2d at 856-57 (emphases
in original). The Fort Stanwix Treaty likewise was not signed by the Mohawks at its
inception, as evidenced by language in the Fort Harmar Treaty specifically exempting the
Mohawks unless within six months they declared their assent to the earlier treaty. 7 Stat.
33, Articles 1 and 4.

Nor do we find any indication in William Fenton, The Great Law and the
Longhouse: A Political History of the Iroquois Confederacy 615, 619-20, 630,
701 (1998), which AMC cites to us, that Mohawks signed the Fort Stanwix and
Canandaigua treaties. Although some of the cited pages suggest that Mohawk
representatives attended the negotiations that preceded the Fort Stanwix and Canandaigua
Treaties, they do not show the Mohawks signed or otherwise assented to those treaties.
AMC also cites Lazore and Brown , but the courts in those cases seem to have simply
assumed the treaties applied to the Mohawks; neither case addresses the treaty signing
issue.

Further, we find no basis for concluding the “free use and enjoyment” rights
guaranteed by Articles 2, 3 and 4 of the Canandaigua Treaty attach to Mohawk lands.
Quite simply, Articles 2, 3 and 4 refer to “lands [that] belong to the Oneidas, Onondagas,
Cayugas and Senekas,” and only to those lands. We find nothing in the treaty language
suggesting these articles also refer to Mohawk lands. AMC is essentially asking the
Commission to insert the word “Mohawks” in Articles 2 through 4. However, courts are
bound by the unambiguous words of a treaty, and cannot rewrite them. Oregon Dept. of
Fish & Wildlife v. Klamath Indian Tribe , 473 U.S. 753, 774 (1985). AMC suggests the
United States would not have intended for different rights to attach to lands of different
members of the Six Nations, but the historical record indicates the United States
sometimes dealt with members differently, if only because at times certain nations were
considered “friendly” and others “hostile” to federal and state interests. See Oneida , 860
F.2d at 1165-66. Another reason the Canandaigua Treaty does not contain any reference
to Mohawk lands is suggested in Boots , 434 N.Y.S.2d at 857, which notes that the
Mohawks appear to have physically abandoned New York State between the American
Revolution and 1794, with many tribal members moving to Ontario.

There are two treaties that clearly apply to the St. Regis Indians, the 1796 Seven
Nations Treaty and the 1838 New York Indians Treaty. We are unable to find any
language in the Seven Nations Treaty or the New York Indians Treaty guaranteeing rights
that would be abrogated by application of the OSH Act to AMC. See Oregon Dept. of
Fish & Wildlife v. Klamath Indian Tribe, supra . The former treaty reserved land “to be
applied to the use of the Indians of the village of St. Regis,” but did not guarantee any
specific rights in connection with the land. The latter treaty guaranteed the St. Regis and
other New York Indians certain rights in the “new homes” to which they were expected to
move, but did not offer that same guaranty with respect to the Indians’ present homes.

III. Conclusion

We find that application of the OSH Act to the working conditions at AMC would
not abrogate rights guaranteed by any treaty that applies to the St. Regis Indians or their
reservation. Accordingly, we remand for further proceedings consistent with this order.

SO ORDERED.

/s/_______

W. Scott Railton

Chairman

/s/_________

James M. Stepens

Commissioner

/s/_________

Thomasina V. Rogers

Commissioner

Dated: January 6, 2005

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET No. 01-1424

AKWESASNE MOHAWK CASINO,

Respondent.

ORDER

The issue in this case, one of first impression before the Commission, is whether the
application of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651, et seq. (the Act) ,
to Respondent’s casino operations would “abrogate rights guaranteed” by treaties between the St.
Regis Mohawk Tribe (the Tribe) and the United States. Having concluded that it would,
Respondent’s motion must be granted.

Pursuant to a warrant approved by the United States District Court for the Northern
District of New York, investigators from the Occupational Safety and Health Administration
(OSHA) of the U.S. Department of Labor conducted a safety and health inspection at the
Akwesasne Mohawk Casino (the Casino) and a warehouse three miles away used by the Casino.
Both are on reservation lands and are owned and operated by the Tribe.

As a result of the
inspection, OSHA issued citations and a notification of proposed penalty to Respondent.
Respondent timely contested. On August 9, 2001, the Secretary filed a complaint with the
Commission seeking an order affirming the citation and proposed penalties. Respondent replied
by filing a motion to dismiss the citation and complaint alleging a lack of subject matter
jurisdiction. The Secretary opposed the motion and Respondent filed a reply to the Secretary’s
opposition.

Respondent moves to dismiss the citation and complaint on the grounds that the Act does
not apply to Indian tribes where ‘the application of the law to the tribe would abrogate rights
guaranteed by Indian treaties....” Respondent relies on the holding in Reich v. Mashantucket
Sand & Gravel, 95 F.3d 174 (2d Cir. 1996) ( Mashantucket ), as a framework for analysis of the
facts of this case The court in that case concluded that:

A federal statute of general applicability that is silent on the issue of
applicability to Indian tribes [such as the Act] will not apply to
them if: (1) the law touches exclusive rights of self-governance in
purely intramural matters; (2) the application of the law to the tribe
would abrogate rights guaranteed by Indian treaties; or (3) there is
proof by legislative history or some other means that Congress
intended [the law] not to apply to Indians on their reservations.

Id. at 177, citing Donovan v. Coeur d’Alene Tribal Farm , 751 F.2d 1113, 1116 (9 th Cir. 1985).

Respondent does not claim that the Act, if applied, would impact on any “exclusive rights
of self-governance in purely intramural matters.” Further, Respondent agrees that there is
nothing in the legislative history of the Act showing “that Congress intended the law not to apply
to Indians on their reservations.” Respondent correctly points out that the Mashantucket decision
is distinguished from this case by the crucial fact that treaties exist between the United States and
the Tribe which owns and operates this casino. Thus, the Mashantucket decision is binding only
to the extent that it sets out the appropriate analytical framework for reaching a decision in this
matter.

Whether the application of the Act “would abrogate rights guaranteed by the Indian
treaties” requires an assessment of the language of the treaties in this case and the application of
precedent teaching how to construe such provisions.

There are two treaties controlling.

The Treaty of Fort Stanwix of 1784, after describing
the geographical boundaries of “the lands of the Six Nations,” provided that the Indians “shall be
secured in the peaceful possession of the lands....” Treaty of Fort Stanwix of 1784, 7 Stat. 15, at
Art. III. (Respondent’s Motion, Ex. 11). The Treaty of Cananadaigua of 1794 restored additional
land to the Six Nations and stated that:

[T]he United States will never claim the same nor disturb them or
either of the Six Nations, nor their Indian friends residing thereon
and united with them in the free use and enjoyment thereof: but the
said reservations shall remain theirs, until they choose to sell the
same to the people of the United States....

Treaty of Canandaigua of 1794, 7 Stat 44, at Art. II. (Respondent’s Motion, Ex.11).

In addition to the renunciation of any future claims or disturbances against the Six
Nations’ interests in the lands or those “residing thereon” by the United States, the rights
guaranteed by the above treaties are those of “peaceful possession of the lands,”and “free use and
enjoyment” until the Six Nations choose to sell to the United States.

Treaty provisions were at issue in both Donovan v. Navajo Forest Products Indus. , 8 BNA
OSHC 2094 (No. 76-5013), aff’d , 692 F.2D 709 (10 th Cir. 1982) ( Navajo Products) and
Department of Labor v. OSHRC (Warm Springs Forest Products Indus.) , 935 F.2d 182 (9 th Cir.
1991) ( Warm Springs ). The courts in those two cases applied the principle that as a general
proposition, application of the Act to an Indian enterprise engaging in a business affecting
interstate commerce (as a casino surely does) does not interfere with the rights of sovereignty
granted to the Indian tribes by virtue of their treaties. The treaties in those cases, however,
provided essentially that the reservation lands would be set apart for the exclusive use of the
Indian tribes therein and that those tribes had the right to exclude non-Indians from those lands.
See, Mt. Adams Furniture Co. , 1991 OSAHRC LEXIS 164, (No. 88-2239, 1991) (Decision and
Remand Order), n. 1. In this case, the express treaty rights conferred upon the Six Nations by the
Treaties of Fort Stanwix of 1784 and Fort Cananadaigua of 1794 are far-reaching in comparison
to those at issue in Navajo Products and Warm Springs , supra. The treaties at issue here go
further than assuring the Six Nations’ interest in their lands but they also promised unbridled
control over how that land is used. In essence, the treaties vowed that the United States would
leave the Six Nations alone regarding their activities on their own lands. In this regard, the fact
that the Casino is a tribal, not an individual, enterprise sways heavily in their favor. The solemn
promises of 1784 and 1794 are paramount to the 1970 goals of the Act.

The argument of the Secretary that the right of self-government, implicit in every Indian
treaty, does not include the right to ignore general federal statues may be well and good. It is not
controlling, however, where, as here, the sought-after application of federal law would serve to
abrogate rights specifically promised by treaty.

Accordingly, Respondent’s Motion to Dismiss the Citation and Complaint for Lack of
Subject Matter Jurisdiction is GRANTED.

/s/

Michael H. Schoenfeld

Judge, OSHRC

Dated: November 26, 2001

Washington, D.C.