Turning Stone Casino Resort

Plain-English summary

Turning Stone Casino, owned and operated by the Oneida Indian Nation, moved to dismiss OSHA citations on tribal-sovereignty, treaty, and consultation grounds. The Commission applied the rule that generally applicable federal statutes cover tribal enterprises unless a recognized exception applies. It found that the commercial casino's largely non-Indian workforce and interstate activity were not purely intramural tribal matters. It also held that the relevant treaties provided only a general right of exclusion, not a specific right that OSHA enforcement would abrogate, and that the cited executive order created no privately enforceable rights. The Commission reversed the jurisdictional dismissal, held that the OSH Act applied to Turning Stone on these facts, and remanded for proceedings on the citations.

Decision snapshot

• Cited standard(s): None specified in this jurisdictional decision.
• Outcome: The dismissal was reversed and the case was remanded for consideration of the OSHA citations.
• Key point: A generally applicable federal workplace-safety law applied to the tribal casino because no sovereignty, treaty, congressional-intent, or executive-order exception barred enforcement.

Full text (OSHRC public release)

Turning Stone Casino Resort, Docket No. 04-1000

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 04-1000

TURNING STONE CASINO RESORT,

Respondent.

DECISION AND REMAND

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

BY THE COMMISSION:

After the Occupational Safety and Health Administration (“OSHA”) inspected a
kitchen at Turning Stone Casino Resort (“Turning Stone”), the Secretary issued a citation
for two serious violations of hand-protection standards, and one other-than-serious
documentation violation. Turning Stone contested the citation, and after the Secretary
filed a complaint, moved to dismiss the complaint for lack of subject matter jurisdiction.
Administrative Law Judge Marvin Bober granted the dismissal motion, holding that
applying the Occupational Safety and Health Act, 29 U.S.C. §§ 651-678 (“the Act”) to
Turning Stone would violate three treaties between the Oneida Indian Nation (“the
Nation”) and the United States. For the reasons that follow, we reverse the judge and
remand for further proceedings.

Background

Turning Stone is a casino wholly owned and operated by the Nation, that is
located in New York on the Nation’s reservation. More than 85% of its 3,000 employees
are non-Indian, and the casino is a major tourist attraction in New York. It is legally
operated pursuant to the Indian Gaming Regulatory Act (“IGRA”), which provides a
statutory basis for Indian gaming in order to promote tribal economic development and
self-sufficiency. 25 U.S.C. § 2702. All of Turning Stone’s revenues go to fund the
Nation’s government and programs.

In support of dismissal, Turning Stone argued: (1) Congress intended that the Act
not apply to Indian tribes; (2) treaties between the Nation and the United States precluded
applying the Act; (3) applying the Act to the Nation would “touch upon exclusive rights
of self-governance in purely intramural matters”; and (4) Executive Order No. 13,175, 65
Fed. Reg. 67,249 (Nov. 9, 2000), required the Secretary to engage in government-to-government consultation, before or in place of adversarial enforcement. The judge
rejected all but one of Turning Stone’s arguments, and granted the dismissal motion based
on his finding that applying the Act to Turning Stone would abrogate various treaties.
Both parties have petitioned the Commission for review of the judge’s findings.

Discussion

In concluding that the Act did not apply to Turning Stone, the judge followed the
analysis set out in Federal Power Commission v. Tuscarora Indian Nation (Tuscarora) ,
362 U.S. 99 (1960) and Donovan v. Coeur d’Alene Tribal Farm (Coeur d’Alene) , 751
F.2d 1113 (9th Cir. 1985). In Tuscarora the Supreme Court stated the principle that
federal statutes of general applicability apply to “Indians and their property interests.”
Tuscarora , 362 U.S. at 116. Courts have since referred to this statement as the
“ Tuscarora presumption” or “ Tuscarora rule.” See, e.g. , NLRB v. Chapa De Indian
Health Program, 316 F.3d 995, 998-99 (9th Cir. 2003) (“ Tuscarora rule”) ; NLRB v.
Pueblo of San Juan , 276 F.3d 1186, 1203 (10th Cir. 2002) (“ Tuscarora presumption”).
The rule was adopted by the Second Circuit in Reich v. Mashantucket Sand & Gravel
(Mashantucket) , 95 F.3d 174 (2d Cir. 1996).

Circuit courts have identified the following exceptions to application of the
Tuscarora rule:

(1) the law [of general applicability] 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.”

Coeur d’Alene , 751 F.2d at 1116 (quoting United States v. Farris , 624 F.2d 890, 893-94
(9th Cir. 1980)); Mashantucket , 95 F.3d at 177; Fla. Paraplegic Ass’n, Inc. v. Miccosukee
Tribe of Indians , 166 F.3d 1126, 1129 (11th Cir. 1999); Smart v. State Farm Ins. Co., 868
F.2d 929, 932-33 (7th Cir. 1989). It is undisputed that the Act does not directly address
Indian tribes.

At the outset, Turning Stone argues that despite courts’ recognition of the
Tuscarora rule, the correct rule is that tribal sovereignty with respect to conduct on
reservations may be divested only by express language in a treaty or statute, and never by
a statute that is silent as to Indians. We cannot agree. A majority of the circuits,
including the Second Circuit, apply the Tuscarora rule unless one of the exceptions
applies. We see no basis for rejecting that approach here. We now turn to whether any
of the Tuscarora rule exceptions applied in this case.

I. The “purely intramural matters” exception

The judge concluded that Turning Stone’s operations were not “purely intramural
matters,” described by the court in Mashantucket as generally involving “tribal
membership, inheritance rules, and domestic relations.” 95 F.3d at 179. The judge relied
on his findings that Turning Stone is in the business of operating a casino; its activities
are commercial and service-oriented, not governmental; 85% of its 3,000 employees are
non-Indian; and, as a major tourist attraction in New York, its activities clearly affect
interstate commerce. Turning Stone argues that applying the Act to it would infringe on
purely intramural matters because tribal gaming is essentially governmental. Specifically,
Turning Stone argues that (1) tribal gaming exists to promote tribal development and self-sufficiency, and is an “expression of retained tribal sovereignty”; (2) the Nation relies on
casino revenues to fund its government and programs, and all revenues are used toward
those ends; and (3) without the casino revenues, government programs would suffer.

We are not persuaded by Turning Stone’s argument that the operation of casinos is
“governmental” merely because gaming is illegal in most non-Indian areas. Cf .
Mashantucket , 95 F.3d at 181 (doing construction work on casino weighed against
finding enterprise’s activities intramural because of casino’s direct effect on interstate
commerce). Also, the fact that Turning Stone’s revenues largely fund the tribal
government is not dispositive. See United States Dep’t of Labor v. OSHRC (Warm
Springs Forest Prods. Indus., hereinafter “Warm Springs”) , 935 F.2d 182, 183-84 (9th
Cir. 1991) (although stumpage payments from tribally owned and operated sawmill
constituted largest source of income for tribal government, application of Act did not
touch on tribe’s exclusive rights of self-governance in purely intramural matters).

Finally, as the judge found, although Turning Stone is wholly owned and operated
by the tribe, it hires Indian and non-Indian employees, its activities are commercial and
service-oriented, and its activities affect interstate commerce. After considering these
same factors, the court in Mashantucket concluded that the respondent’s activities did not
affect rights of self-governance in purely intramural matters. See Mashantucket , 95 F.3d
at 175 (construction business wholly owned and operated by tribe, that hired Indian and
non-Indians, conducted commercial and service-oriented activities, and performed work
on a casino that affected interstate commerce). See also Coeur d’Alene , 751 F.2d at
1114-16 (farm was wholly owned and operated by tribe, it hired Indian and non-Indian
employees, and it was essentially normal commercial farming enterprise). Accordingly,
we affirm the judge’s ruling that this exception to the Tuscarora rule did not apply.

II. The treaty rights exception

The judge agreed with Turning Stone that applying the Act to it would abrogate
three treaties to which it is undisputed the Nation was a party. In particular, the Treaty of
Canandaigua provides, in relevant part, as follows:

Art. II.

The United States acknowledge the lands reserved to the Oneida . . .
in their respective treaties with the state of New-York, and called their
reservations, to be their property; and the United States will never claim the
same, nor disturb them . . . 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 chose to sell the same to the
people of the United States, who have the right to purchase.

. . .

Art. IV.

The United States having thus described and acknowledged what
lands belong to the Oneidas . . . and engaged never to claim the same, nor to
disturb them . . . 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.

. . .

Art. V.

. . .

And the Six Nations, and each of them, will forever allow people of
the United States, a free passage through their lands, and the free use of the
harbors and rivers adjoining and within their respective tracts of land, for
the passing and securing of vessels and boats, and liberty to land their
cargoes when necessary for their safety.

. . .

Art. VII.

Lest the firm peace and friendship now established should be interrupted by
the misconduct of individuals, the United States and Six Nations agree, that
for injuries done by individuals on either side, no private revenge or
retaliation shall take place; but instead thereof, complaint shall be made by
the party injured to the other: By the Six Nations or any of them, to the
President of the United States . . . and by the Superintendent . . . to the
principal chiefs of the Six Nations.

7 Stat. 44 (Nov. 11, 1794). Also, in two earlier treaties the United States had affirmed
that the Oneidas were secured in the peaceful possession of their lands. See Treaty of
Fort Stanwix, 7 Stat. 15 (Oct. 22, 1784); Treaty of Fort Harmar, 7 Stat. 33 (Jan. 9, 1789).

In reaching his decision, the judge considered treaty provisions analyzed in two
cases, Warm Springs , 935 F.2d at 184 (“tract shall be set apart . . . 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”), and Donovan v.
Navajo Forest Products Industries (“Navajo Forest Products”) , 692 F.2d 709, 711 (10th
Cir. 1982) (“no persons except those . . . authorized to enter upon Indian reservations in
discharge of duties imposed by law, or the orders of the President, shall ever be permitted
to pass over . . . the territory”). He concluded that the Treaty of Canandaigua was “even
more far reaching” in its promise to leave the Six Nations alone and undisturbed on their
lands than the treaty language in Navajo Forest Products , which the Tenth Circuit had
found sufficient to bar application of the Act to a tribe.

On review, Turning Stone argues that (1) the treaty’s promise of non-disturbance
affirmed the Nation’s right to use its property free of any outside disturbance; (2) the right
to be free of outside disturbance was reinforced by the Nation’s reciprocal promise to not
disturb the people of the United States in their free use and enjoyment of their land; (3)
Article VII showed that even as to serious misconduct the parties would not intrude onto
each other’s lands; and (4) the treaty gave the Nation more rights than the treaty at issue
in Navajo Forest Products , in which the Tenth Circuit held that applying the Act to a
tribal business would abrogate treaty rights. The Secretary argues that the treaty
exception applies only where a specific right would be directly affected, and that the
Canandaigua Treaty contained only a general right of exclusion guaranteeing the Nation’s
right to use its land subject to federal supervision. Given that the Second Circuit has not
addressed the scope of the treaty-rights exception, we agree with the judge that Warm
Springs and Navajo Forest Products are the most relevant cases on this issue. We
disagree with the judge, however, as to the far-reaching nature of the treaty language.

Courts will not presume that Congress intended to abrogate a right guaranteed by a
treaty when it passed a generally applicable law. See, e.g., Warm Springs , 935 F.2d at
184; United States v. Farris , 624 F.2d 890, 893 (9th Cir. 1980); United States v.
Winnebago Tribe of Neb ., 542 F.2d 1002, 1005 (8th Cir. 1976). When interpreting Indian
treaties, courts construe terms according to how Indians would have understood them,
and resolve ambiguities in favor of the Indians. See Washington v. Wash. State
Commercial Passenger Fishing Vessel, 443 U.S. 658, 675-76 (1979) (treaties must be
construed in sense they would naturally be understood by Indians, and not according to
technical meanings assigned by lawyers); Lazore v. Comm’r , 11 F.3d 1180, 1184 (3d Cir.
1993) (ambiguities should be interpreted in favor of tribe).

The Tenth Circuit has indicated that in its view treaty language granting a tribe a
right of exclusion is sufficient to bar OSHA inspection, relying heavily on the inherent
sovereignty and right of self-government possessed by Indians. Navajo Forest Products,
692 F.2d at 711-13 (treaty recognized “principles of tribal sovereignty and self-government” that Navajos had not voluntarily relinquished). The Ninth Circuit rejected
Navajo Forest Products in Coeur d’Alene , to the extent the Tenth Circuit relied on
principles of sovereignty and self-government not in a treaty, see 751 F.2d at 1117 n.3,
and also in Warm Springs , to the extent it relied on a general right of exclusion in the
treaty, see 935 F.2d at 185-86. The Ninth Circuit indicated that the rule against applying
generally applicable federal statutes in derogation of treaty rights applies only where a
treaty specifically covers a subject, and that general language granting a tribe “exclusive
use” of their land is not sufficient to bar OSHA from entering reservation land to conduct
inspections. Warm Springs , 935 F.2d at 184-87 (refusing to give general exclusion
provision a “broad effect”).

In Warm Springs, the treaty at issue stated that the land “shall be set apart . . .
surveyed and marked out for their exclusive use . . . [and no] white person [shall] be
permitted to reside upon the same without the concurrent permission of the agent and
superintendent.” 935 F.2d at 184. After interpreting the treaty in accordance with
customary canons of construction applicable to Indian treaties, the court found that the
treaty granted only a general right of exclusion. Id . at 185. The court viewed this general
right of exclusion as essentially identical to the “inherent sovereign right” of exclusion
that all Indians possess independent of treaties. Given that this inherent right was
insufficient to bar application of the Act in Coeur d’Alene , the court concluded the
“identical right” should not change the outcome simply because it was contained in a
treaty. Id . at 186. We are persuaded by the Ninth Circuit’s reasoning. We believe the
Tenth Circuit’s analysis fails to take into account the extent to which Indian tribal
sovereignty is dependent on and subordinate to the federal government. See
Mashantucket , 95 F.3d at 178-79 (tribes’ inherent sovereignty is dependent and
subordinate to federal government and may be limited by statutes that are silent as to
Indians).

The Treaty of Canandaigua directs that the United States will not “disturb” the
Indians in their “free use and enjoyment” of their reservation. The treaty does not contain
any specific right against regulation by OSHA or any other entity, or even against non-Indian entry onto the reservation. We find that the Treaty of Canandaigua afforded
Respondent no more than a general right of exclusion that under the reasoning of Warm
Springs did not prohibit applying the Act to Turning Stone. 935 F.2d at 186.

We note that Turning Stone provided no evidence suggesting a particular purpose
behind the treaty, or a unique understanding of the language on the part of the Nation, that
would affect our construction of the plain language of the treaty. Further, we do not find
that other parts of the Treaty of Canandaigua, or the Fort Stanwix and Fort Harmar
treaties, evidence a stronger right to exclude on the part of the Nation. Thus, we conclude
that OSHA’s entry onto the reservation would not abrogate these treaties, and we reverse
the judge’s decision on this issue.

III. The congressional intent exception

The Commerce Clause grants Congress the authority to “regulate Commerce with
foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const.
art. I, § 8, cl. 3. Similarly, the Act states that Congress exercised “its powers to regulate
commerce among the several States and with foreign nations and to provide for the
general welfare.” 29 U.S.C. § 651(b). Turning Stone argued below that by leaving out
the language “and with the Indian Tribes” in invoking its constitutional powers, Congress
manifested its intent that the Act not apply to Indian tribes. The judge disagreed, as do
we. Both the Second and Ninth Circuits have considered the issue and concluded that
there is no indication that Congress intended to exclude Indian tribes from the Act’s
applicability, see Mashantucket , 95 F.3d at 177 (Second Circuit); Coeur d’Alene, 751
F.2d at 1118 (Ninth Circuit), and no circuit has held to the contrary.

Accordingly, we
affirm the judge’s finding that this exception to the Tuscarora rule did not apply.

IV. Executive Order

Finally, Turning Stone has preserved its argument that the Secretary was required
to comply with Executive Order No. 13175. We agree with the judge that the Executive
Order created no enforceable rights. Executive orders are generally not privately
enforceable, see Zhang v. Slattery , 55 F.3d 732, 747 (2d Cir. 1995) (superseded by statute
on other grounds, see Chen v. United States , 195 F.3d 198, 201 (4th Cir. 1999)), and
Order No. 13175 explicitly states that it is not enforceable, see Fed. Reg. at 67252 (Sec.
10).

Conclusion

We affirm the judge’s decision regarding congressional intent, whether application
of the Act would interfere with purely intramural matters, and the effect of the Executive
Order. We reverse the judge’s findings as to the effect of the three treaties, and the
Treaty of Canandaigua in particular, because we conclude that they did not grant the
Nation a sufficiently specific right that would be abrogated by OSHA’s entry onto the
reservation to inspect Turning Stone’s kitchens. Accordingly, we find that on the facts of
this case the Act applies to Turning Stone, and we remand the case to the judge for further
proceedings.

/s/_____

W. Scott Railton

Chairman

/s/______

James M. Stephens

Commissioner

__/s/____

Thomasina V. Rogers

Commissioner

Dated: April 18, 2005             

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 04-1000

TURNING STONE CASINO RESORT,

Respondent.

Appearances:                Evanthia Voreadis, Esquire                  Peter D. Carmen, Esquire

U.S. Department of Labor                    Mackenzie Hughes LLP

New York, New York              Syracuse, New York

For the Complainant.                            For the Respondent.

Before:                          G. Marvin Bober

Administrative Law Judge

DECISION AND ORDER

This matter is before the Occupational Safety and Health Review Commission (“the Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq . (“the Act”), for the purpose of determining whether Respondent’s motion to
dismiss the Secretary’s citation and complaint for lack of subject matter jurisdiction should be
granted. Respondent contends that, because Turning Stone Casino Resort (“Turning Stone”) is
wholly owned and operated by the Oneida Indian Nation (“the Nation”), the Act does not apply
to Turning Stone.

The Occupational Safety and Health Administration (“OSHA”) conducted an inspection
of

Turning Stone, located in central New York, on December 8, 2003. As a result of the inspection,
OSHA issued the subject citation to Respondent on May 4, 2004. Respondent contested the citation, and the Secretary filed her complaint. On July 30, 2004, Respondent filed its motion to dismiss, and on September 30, 2004, the Secretary filed an opposition to the motion.

Discussion

As indicated above, Respondent contends that OSHA has no jurisdiction in this matter
because Turning Stone is wholly owned and operated by the Nation. Respondent offers four specific reasons for its position. These are set out below along with my findings as to each.

I. Congress intended that the Act not apply to Indian tribes .

The Commerce Clause of the Constitution empowers Congress “[t]o regulate Commerce
with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art.
I, § 8. The Act, on the other hand, states as follows:

The Congress declares it to be its purpose and policy, through the exercise of its
powers to regulate commerce among the several States and with foreign nations
and to provide for the general welfare, to assure so far as possible every working
man and woman in the Nation safe and healthful working conditions and to preserve our human resources....

29 U.S.C. § 651(b).

Respondent asserts that the fact that the phrase “and with the Indian Tribes” was left out
of the Act establishes that Congress intended the Act to not apply to Indian tribes. The relevant
case law does not support Respondent’s assertion.

The issue of the applicability of statutes that do not address Indian tribes specifically was
decided by the Supreme Court almost 45 years ago. In 1960, the Court held that a statute of general applicability applies to Indians and their property interests. Federal Power Comm. v. Tuscarora Indian Nation , 362 U.S. 99, 116 (1960). Courts of Appeals have followed this rule and have
found general federal laws applicable to Indian tribes. See, e.g., Reich v. Mashantucket Sand &
Gravel , 95 F.3d 174, 176-77 (2d Cir. 1996); United States v. Funmaker , 10 F.3d 1327, 1330-31
(7 th Cir. 1993); Smart v. State Farm Ins. Co. , 868 F.2d 929, 932-34 (7 th Cir. 1989); Donovan v.
Coeur d’Alene Tribal Farm , 751 F.2d 1113, 1116 (9 th Cir. 1985). These Courts have also found
that a statute of general applicability that is silent as to whether it applies to Indian tribes will not
apply 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 .

The Ninth Circuit, in the Coeur d’Alene decision noted above, addressed whether the Act
applied to Indian tribes. The Court found the Act was a statute of general applicability and that it
was silent as to whether it applied to Indian tribes. Coeur d’Alene , 751 F.2d at 1115-16 (9 th Cir.
1985). The Court then addressed the three exceptions set out supra and found that none of them
was met. The Court noted there was no treaty involved, and it found that the operation of the
tribal farm was not an aspect of tribal self-government having to do with purely intramural matters; it also found, in regard to the third exception, that there was no indication in the legislative
history of the Act of “any congressional desire to exclude tribal enterprises from the scope of its
coverage.” Id . at 1116-18. See also U.S. DOL v. OSHRC , 935 F.2d 182, 187 (9 th Cir. 1991). The
Second Circuit, in the Mashantucket decision noted above, also addressed whether the Act applied to Indian tribes. It adopted the reasoning and analysis used in Coeur d’Alene and found that
none of the three exceptions was met in the case before it. The Court noted there was no treaty
involved and that the Act was silent as to Indian tribes, eliminating the second and third exceptions; as to the first, the Court found that application of the Act would not “interfere with tribal
self-governance over purely intramural matters.” Mashantucket , 95 F.3d at 177, 182 (2d Cir.
1996). Mashantucket was decided in the Second Circuit, where this case arose, and it is therefore
controlling here.

Respondent’s first assertion is rejected.

II. Applying the Act to the Nation is precluded by specific treaties between the Nation
and the United States .

Respondent asserts that it meets the second exception set out in the Coeur d’Alene and
Mashantucket decisions, in that the application of the Act in the circumstances of this case would
abrogate rights guaranteed by Indian treaties.

Respondent points out that the Oneida Indian Nation, a federally-recognized tribe that resides on lands in Oneida and Madison Counties in central New York, is one of the six nations of
the Haudenosaunee or Iroquois Confederacy (hereinafter, “the Six Nations”). Respondent also
points out that following the Revolutionary War, the United States entered into three treaties with
the Six Nations, which, as noted above, included the Oneida Indian Nation.

County of Oneida v.
Oneida Indian Nation , 470 U.S. 226, 230-31 (1985).

The Treaty of Fort Stanwix, 7 Stat. 15 (Oct. 22, 1784), after setting out the boundaries of
the lands of the Six Nations, promised that the Six Nations “shall be secured in the peaceful possession of the lands they inhabit.” Id . at Art. 3. The Treaty of Fort Harmar, 7 Stat. 33 (Jan. 9,
1789), reaffirmed this promise. Id . at Art. 1. The Treaty of Canandaigua, 7 Stat. 44 (Nov. 11,
1794), once more affirmed the promise of the United States, and stated, in Article 2, as follows:

The United States acknowledges the lands reserved to the Oneida, Onondaga and
Cayuga Nations, in their respective treaties with the State of New York, and called
their reservations, to be their property; and the 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, who have the right to purchase.

The Treaty of Fort Stanwix promises the Six Nations the “peaceful possession” of their
lands, while the Treaty of Canandaigua, besides giving up any future claims against the land, also
promises to not disturb the Six Nations in the “free use and enjoyment” of their lands. I find the
language of these treaties compelling, and especially that of the Treaty of Canandaigua, for the
following reasons.

Two Circuit Courts have considered treaty provisions in cases addressing the applicability
of the Act to Indian enterprises on reservation lands. See DOL v. OSHRC and Warm Springs Forest Prod. , 935 F.2d 182 (9 th Cir. 1991) (“ Warm Springs ”); Donovan v. Navajo Forest Prod.
Indus. , 692 F.2d 709 (10 th Cir. 1982) (“ Navajo Forest ”).

In Warm Springs , the Ninth Circuit considered the following treaty provision to determine
whether applying the Act would abrogate rights guaranteed by Indian treaties:

All 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.

935 F.2d at 184. The Court concluded that the foregoing provided a right of general exclusion
that was insufficient to bar application of the Act; in so finding, the Court stated that the “conflict
must be more direct to bar the enforcement of statutes of general applicability.” Id . at 186-87.

In Navajo Forest , the Tenth Circuit considered the treaty passage set out below to decide
if application of the Act would abrogate rights guaranteed by Indian treaties:

[T]he United States agrees that no persons except those herein so authorized to do,
and except such officers, soldiers, agents and employees of the government, or of
the Indians, as may be authorized to enter upon Indian reservations in discharge of
duties imposed by law, or the orders of the President, shall ever be permitted to
pass over, settle upon, or reside in the territory described in this article.

692 F.2d at 711. The Court stated that the above language made it clear that “the United States
Government agreed to leave the Navajos alone on their reservation to conduct their own affairs
with a minimum of interference from non-Indians, and then only by those expressly authorized to
enter upon the reservation.” Id . at 711-12 (emphasis in original).The Court then stated that “[t]hat,
in our view, is the plain, unambiguous meaning of the Navajo treaty language contained in Article
II, supra .” Id . at 12. The Court went on to conclude that applying the Act to the subject Indian
enterprise “would constitute abrogation of Article II of the Navajo Treaty.” Id .

I agree with the Ninth Circuit’s decision that the treaty language in that case set out a right
of general exclusion that was not sufficient to bar the application of the Act. However, I also
agree with the Tenth Circuit’s decision that applying the Act in that case would have abrogated
the treaty provision that promised “to leave the Navajos alone on their reservation to conduct
their own affairs with a minimum of interference from non-Indians, and then only by those expressly authorized to enter upon the reservation.”

As I read it, the language in the Treaty of Canandaigua is even more far reaching than the
treaty language involved in Navajo Products ; in essence, the Treaty of Canandaigua promised to
leave the Six Nations alone on their lands and to not disturb them in their activities on those
lands. I have considered the Secretary’s arguments to the contrary and her assertion that Navajo
Products was wrongly decided. Regardless, I agree with Respondent, and I find that the application of the Act under the circumstances of this case would abrogate the rights set out in the three
treaties involved, and, in particular, the rights specified in the Treaty of Canandaigua.

III. Applying the Act to the Nation would touch upon exclusive rights of self-governance
in purely intramural matters .

Respondent notes that the Nation relies mainly on its casino revenues for its governmental
funding and programs and that the income from the casino’s gaming activities is utilized to operate the government and its programs. Respondent also notes that the Nation has used this income
to fund health care, housing, cultural, employment and land reacquisition programs and that without this income very few tribal government programs would be possible. Respondent asserts that
utilizing the Act to supplant the Nation’s own regulatory process is a clear interference with the
authority of the Nation to govern in intramural matters.

The facts of this case are similar to those in Reich v. Mashantucket Sand & Gravel , 95
F.3d 174 (2d Cir. 1996), discussed supra. There, Mashantucket Sand & Gravel (“MSG”), a construction business wholly owned and operated by a federally-recognized Indian tribe called the
Mashantucket Pequot (“the Tribe”), was inspected and cited by OSHA. The Tribe contested the
citation, and the issue before the Second Circuit was whether MSG’s activities were governmental activities of a purely intramural nature such that they met the first exception to the application
of a general federal statute, as set out in Coeur d’Alene , 751 F.2d at 1115-16 (9 th Cir. 1985).

In deciding Mashantucket , the Court noted that “purely intramural matters” generally involve matters such as tribal membership, inheritance rules, and domestic relations. 95 F.3d at

179. The Court also noted that MSG employed about 100 people, both Indian and non-Indian, that
     it worked as an “arm” of the Tribe, and only on construction projects on the reservation, and that
     the Tribe’s governing body decided the priority of MSG’s projects. MSG excavated building
     sites, assisted in building roads and tribal homes, and performed work related to the continuing
     expansion of the Foxwoods Casino, located on the reservation and the principal source of income
     for the Tribe.

Id . at 175. The Court held against MSG for three reasons. First, it found that despite the taking of orders from the Tribe’s governing body, MSG was in the construction business
and its activities were of a commercial and service character, not a governmental character. Second, the Court found that MSG’s employment of non-Indians weighed heavily against its claim
because, generally speaking, tribal relations with non-Indians fell outside the normal ambit of
tribal self-government. Third, the Court found that MSG’s construction work on the casino had a
direct effect on interstate commerce. Id . at 180-81. The Court concluded that these three factors,
taken together, resulted in a “mosaic that is distinctly inconsistent with the portrait of an Indian
tribe exercising exclusive rights of self-governance in purely intramural matters.”

Id . at 181.

Based on the foregoing, and on the facts of this case, I conclude that applying the Act to
the Nation will not affect exclusive rights of self-governance in purely intramural matters. Turning Stone is in the business of operating a casino, and its activities are of a commercial and service character, not a governmental character. Further, Turning Stone has close to 3,000 employees, 85 percent of which are non-Indians. Finally, Turning Stone, a casino resort that attracts millions of visitors a year and is one of the top tourist attractions in New York State, clearly has a
direct effect on interstate commerce. See Resp. Memo of Law, Exh. 7, pp. 2-6. Respondent’s assertion is rejected.

IV. Executive Order No. 13175 requires government-to-government consultation that
should occur before adversarial enforcement .

Executive Order No. 13175 (“the Order”), 65 Fed. Reg. 67249, signed by President
Clinton on November 6, 2000, is titled “Consultation and Coordination with Indian Tribal Governments.”

The Order sets out the federal government’s commitment “to establish regular and
meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications” and “to strengthen the United States government-to-government relationships with Indian tribes.” The Order states that “[t]he United States recognizes the
right of Indian tribes to self-government and supports tribal sovereignty and self-determination”
and that “[a]gencies shall respect Indian tribal self-government and sovereignty” and “honor
tribal treaty and other rights.” Id . §§ 2(c), 3(a). The Order also states that the Federal Government
shall, as to Federal statutes and regulations administered by Indian tribal governments, “grant Indian tribal governments the maximum administrative discretion possible.” Id . § 3(b). Finally, the
Order states that, when undertaking to formulate and implement policies that have tribal implications, agencies shall: (1) encourage Indian tribes to develop their own policies to achieve program
objectives; (2) where possible, defer to Indian tribes to establish standards; and (3) in determining
whether to establish Federal standards, consult with tribal officials as to the need for Federal standards and any alternatives that would limit the scope of Federal standards or otherwise preserve
the prerogatives and authority of Indian tribes.” Id . § 3(c).

Respondent notes that it has sought intergovernmental cooperation in this matter and has
addressed and resolved the issue that initiated the OSHA inspection. Respondent further notes
that OSHA, rather than following the consultation and collaboration approach required by the
Order, has sought adversarial enforcement of the Act. Respondent asserts that OSHA’s failure to
adhere to the Order requires dismissal of the citation and complaint. I disagree.

First, Section 10 of the Order, entitled “Judicial Review,” clearly states that it (the Order)
provides no right “enforceable at law by a party against the United States, its agencies, or any person.” Second, a Second Circuit decision, Zhang v. Slattery , 55 F.3d 732 (2d Cir. 1995), states that
there is generally no private right of action to enforce obligations imposed on executive branch
officials by executive orders. Even more significant, Zhang goes on to state that “Executive Orders cannot be enforced privately unless they were intended by the executive to create a private
right of action.” Id . at pp. 747-48. As Zhang also points out, “it is not the role of the federal courts
to administer the executive branch.” Id . at p. 748. Given these statements, and the one in the Order itself, I find that OSHA’s failure to follow the Order provides no basis for dismissing the Secretary’s citation and complaint. Moreover, I have considered the cases cited by Respondent, and
they do not persuade me of Respondent’s position in this matter. See Building and Constr. Trades
Dept. v. Allbaugh , 295 F.3d 28 (D.C. Cir. 2002); Western Airlines v. Port Authority , 817 F.2d (2d
Cir. 1987). Respondent’s assertion is accordingly rejected.

ORDER

For the reasons set out in Section II of this decision, Respondent’s motion to dismiss the
Secretary’s citation and complaint for lack of subject matter jurisdiction is GRANTED.

So ORDERED.

/s/

G. MARVIN BOBER

JUDGE, OSHRC

Dated: November 1, 2004

Washington, D.C.