Warm Springs Forest Products Industries, and the Confederated Tribes of the Warm Springs Reservation

Plain-English summary

Warm Springs Forest Products Industries was a sawmill owned and operated by the Confederated Tribes on reservation land. The judge dismissed OSHA's complaint because he concluded that enforcement would interfere with the treaty right to exclude non-Native Americans. The Ninth Circuit reversed, holding that the limited entry needed to enforce the Occupational Safety and Health Act did not sufficiently conflict with the treaty's general exclusion right to bar application of the Act. Following the appellate mandate, the Commission remanded the consolidated cases for reconsideration of the Secretary's complaint.

Decision snapshot

• Cited standard(s): None identified in this jurisdictional order.
• Outcome: The consolidated cases were remanded for reconsideration under the Ninth Circuit's ruling.
• Key point: A general treaty right to exclude non-Native Americans did not prevent OSHA from enforcing the Act at a tribal commercial enterprise.

Full text (OSHRC public release)

Docket No. 89-0162_89-0163

SECRETARY OF LABOR,

Complainant,

v.

WARM SPRINGS FOREST PRODUCTS

INDUSTRIES, and THE CONFEDERATED

TRIBES OF THE WARM SPRINGS

RESERVATION,

Respondents.

OSHRC Docket Nos. 89-0162 and 89-0163

ORDER

These cases are before us at the direction of the United States
Court of Appeals for the Ninth Circuit. U.S. Department of Labor v. OSHRC , Docket
No. 90-70082 (9th Cir. June 7, 1991), rev'g, Warm Springs Forest Products
Industries , 14 BNA OSHC 1420, 1987-90 CCH OSHD � 28,771 (No. 89-162, 1989). In
accordance with the Ninth Circuit's decision and mandate, we remand the cases to
Administrative Law Judge Benjamin R. Loye to reconsider the Secretary's complaint.

Warm Springs Forest Products Industries ("Warms
Springs") is a sawmill owned and operated by Respondent, The Confederated Tribes of
the Warm Springs Reservation ("Tribes"). After a compliance officer from the
Occupational Safety and Health Administration ("OSHA") conducted an inspection
at 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 of
those lands guaranteed the Tribes under the Treaty with the Tribes of Middle Oregon of
June 25, 1855, 12 Stat. 963 ("Treaty").

The Secretary filed a petition for discretionary review with
the Commission, but the case was not directed for review. However, the Ninth Circuit
granted 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 statute
in terms applying to all persons includes Indians and their property right
interests", FPC v. Tuscarora Indian Nation , 362 U.S. 99,116 (1960), to hold
that the Act applied to a commercial enterprise wholly owned and operated by a Native
American tribe. It also noted, however, that it recognized certain exceptions to the
general principle, one of which is central to this case -- a federal statute of general
applicability 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 rights
guaranteed by Indian treaties.

The court interpreted the treaty provision "mark[ing]
out" the reservation for the "exclusive use" of Native Americans and
prohibiting non-Native Americans from residing there without the permission of the agent
and superintendent to set forth a general right of exclusion. Docket No. 90-70082, slip
op. at 7153. The court concluded that the conflict between the general right of exclusion
and the limited entry necessary to enforce the OSH Act was not sufficient to bar
application of the Act to the Warm Springs mill. The court remanded the case to the
Commission for us to "reconsider the Secretary's complaint," Docket No.
90-70082, slip op. at 7156.

Accordingly, we remand the case to Judge Loye for
reconsideration consistent with the decision of the Ninth Circuit.

Edwin G Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman 

Commissioner

Dated: July 31, 1991

SECRETARY OF LABOR,

Complainant,

v.

WARM SPRINGS FOREST PRODUCTS

INDUSTRIES, and THE CONFEDERATED

TRIBES OF THE WARM SPRINGS

RESERVATION,

Respondent.

OSHRC DOCKET NOS. 89-0162 and 89-0163

APPEARANCES:

For the Complainant:

Matthew L. Vadnal, Esq., Office of the
Solicitor, U.S. Department of Labor, Seattle, WA

For the Respondent: 

James D. Noteboom, Esq., Marceau, Karnopp, 

Petersen, Noteboom &
Hubel, Bend, OR

DECISION AND ORDER

Loye, 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 captioned
actions, alleging that it is a federally recognized Indian tribe and that, 1) it is not an
employer 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 respondent
would impermissibly infringe upon the tribe's treaty rights and (3) the instant action is
barred 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 that
enforcement of the Act would infringe upon the tribe's treaty rights. Respondent's motion
is, 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 from
their reservations is a "fundamental sovereign attribute" of Indian tribes, and
as such is not overridden by a statute of general applicability such as the Occupational
Safety and Health Act of 1970 (29 U.S.C. �651 et seq.), which contains no indication of
any congressional intent to limit tribal self government. Id. at 1708-1709. The Commission
agreed with the respondent that inspections of its worksites by the Occupational Safety
and Health Administration infringed on its inherent tribal 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 plenary power to limit
the inherent sovereignty of Indian tribes unless it expressly excludes the tribes from
operation of the statute. Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113, 12
BNA OSHC 1169 (9th Cir. 1985). The Ninth Circuit Court, however, noted a number of
limitations on its own decision. The court there stated that such a federal statute of
general applicability which is silent on the subject of Indian tribes is unenforceable,
inter alia, where its provisions operate in derogation of rights guaranteed by Indian
treaties. Id.

Unlike Coeur d'Alene Tribal Farm , this case involves a
treaty between the Tribes of Middle Oregon and the United States government. The Treaty
sets apart a tract of land for the confederated bands of Indians: "[a]ll of which
tract shall be set apart, and, so far as necessary, surveyed and marked out for their
exclusive use, nor shall any white person be permitted to reside upon the same without the
concurrent permission of the agent and superintendent." (Exhibit A, Article 1, p.
41).

The Secretary's argument that the cited Treaty provision was
intended only to prohibit whites from residing on reservation lands without the permission
of the agent and superintendent and placed no restrictions on the exercise of governmental
powers is rejected as inconsistent with both the treaty language and the history of the
U.S. Government's dealings with the Indian tribes.

It is the opinion of this Judge that, the treaty evidences an
intent of the parties to exclude the white man from reservation lands for any and all
purposes except as therein enumerated.[[1]] Enforcement of the Act on reservation lands
would, therefore, infringe upon the exclusive use guaranteed under the Treaty without
explicit Congressional authorization.

So ORDERED.

Benjamin R. Loye

Judge, OSHRC

Dated: November 6, 1989

FOOTNOTES:

[[1]] Article 9. The said confederated bands agree that
whensoever, in the opinion of the President of the United States, the public interest may
require it, that all roads, highways, and railroads shall have the right of way through
the reservation herein designated, or which may at any time here after be set apart as a
reservation for said Indians.