Mt. Adams Furniture Co.

Plain-English summary

Mt. Adams Furniture was an enterprise of the Yakima Indian tribe located on the Yakima reservation. An administrative law judge dismissed OSHA's citations because he concluded that applying the Occupational Safety and Health Act would interfere with treaty rights allowing the tribe to exclude non-Indians. The Commission reversed under controlling Ninth Circuit precedent, which held that a similar treaty right did not bar OSHA from enforcing the Act against a tribal commercial enterprise. Because the case had been dismissed before an answer or evidentiary hearing, the Commission remanded it for proceedings on the alleged violations.

Decision snapshot

• Cited standard(s): None specified in the decision.
• Outcome: The dismissal was reversed and the case was remanded for proceedings on the merits.
• Key point: In the Ninth Circuit, a tribe's general treaty right to exclude non-Indians does not prevent OSHA from enforcing the Act against a tribal commercial enterprise.

Full text (OSHRC public release)

Docket No. 88-2239

SECRETARY OF LABOR,

Complainant,

v.

MT. ADAMS FURNITURE CO.,

Respondent.

OSHRC Docket No. 88-2239

DECISION AND REMAND ORDER

BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA,
Commissioners.

BY THE COMMISSION:

The employer in this case, Mt. Adams Furniture
Co. ("Mt. Adams"), is an enterprise of the Yakima Indian tribe and is located on
the Yakima Indian reservation.  It was cited by the Secretary for a number of alleged
violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. �� 651-78
("the Act").  Administrative Law Judge Benjamin R. Loye vacated the
citations on the ground that application of the Act to Mt. Adams would abrogate rights
granted to the Yakima Indians by treaty.  We reverse the judge's decision because it
is contrary to precedent in the Court of Appeals for the Ninth Circuit, where this case
arises.

Judge Loye observed that in Coeur d'Alene Tribal
Farm, 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 have
jurisdiction over a commercial enterprise of the Coeur d'Alene Indian tribe located on the
tribe's reservation land. While noting that the Ninth Circuit had reversed the
Commission's decision in Coeur d'Alene, the judge reasoned that Coeur d'Alene was
distinguishable because the tribe in that case did not have a formal treaty with the
United States Government.

Subsequent to the judge's decision, the Ninth
Circuit decided Department of Labor v. OSHRC (Warm Springs Forest Prods. Indus.), 935 F.2d
182 (9th Cir. 1991).  That case held that the general right of the Confederated
Tribes of Warm Springs conferred by treaty to exclude non-Indians from the Warm Springs
Reservation did not bar application of the Act to a sawmill owned and operated by the
tribes.   The court noted that the Act provides only for a limited entry necessary
for investigations to enforce the Act and reasoned that "were we to construe the
Treaty right of exclusion broadly to bar application of the Act, the enforcement of nearly
all generally applicable federal laws would be nullified." Id. at 187.  The
court also reiterated the holding it had previously reached in Coeur d'Alene that, as a
general proposition, application of the Act to Indian enterprises engaging in interstate
commerce with non-Indians does not interfere with the rights of sovereignty granted to
Indian tribes.  Id. at 184 (citing Coeur d'Alene, 751 F.2d at 1116).

The language of the treaty granting the Yakima
tribe authority over the lands granted to them is virtually identical to the language of
the treaty at issue in Warm Springs.  Both treaties grant the Indians
"exclusive" use of the land and provide that non-Indians generally may not enter
reservation lands without permission.[[1]]  Therefore, we conclude that, if
confronted with the issue presented in this case, the Ninth Circuit would reach the same
conclusion as it did in Warm Springs and would hold that the general right of the Yakima
Indians to exclude non-Indians is insufficient to preclude enforcement of the Act against
Mt. Adams.  Since this case arises within the Ninth Circuit, Warm Springs is
dispositive 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.  No evidentiary hearing
has been held, nor, for that matter, has Mt. Adams as yet filed an answer to the
Secretary's complaint.  Accordingly, we reverse and remand for further proceedings on
the merits of the alleged violations.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: November 6, 1991

SECRETARY OF LABOR,

Complainant,

v.

MT. ADAMS FURNITURE COMPANY,

Respondent.

OSHRC DOCKET NO. 88-2239

APPEARANCES:

For the Complainant:

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

For the Respondent:

Tim Weaver, Esq., Cockrill, Weaver & Bjur, Yakima, WA

DECISION AND ORDER

Loye, Judge:

This proceeding arises under the Occupational Safety and Health Act of 1970 (29
U.S.C. Section 651 et seq .; hereafter called the "Act").

On August 9 and 10, 1988, OSHA conducted an
inspection of the respondent's operation located at an inspection site denominated as
"Yakima Indian Nation Industrial Site, Jones Road, Wapato, Washington.  (See
OSHA Citation) "Upon completion of such inspection, 23 separate citations were issued
under 29 C.F.R. 1910 and one citation under 29 C.F.R. 1904 on September 1, 1988.  The
case was docketed with the Commission on October 14, 1988, after notice of contest was
filed on September 25, 1988, by the respondent.  The complaint was filed with the
Commission on October 25, 1988.  By Order of the Administrative Law Judge dated
November 7, 1988, the letter of contest of respondent dated September 25, 1988, was
treated as a Motion to Dismiss.  The parties thereafter filed briefs directed to the
issues 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. 
Thereafter the parties further briefed issues herein and the matter is now ready for
ruling on the Motion to Dismiss.

DISCUSSION

On June 9, 1855, a Treaty was negotiated between
the Yakima Indian Nation and the United States (Exhibit A) ceding certain lands to the
United States and reserving unto the Yakima's a certain tract of land as defined within
such Treaty document partially as follows:

". . . for the exclusive use and benefit of
said confederated tribes and bands of Indians, as an Indian reservation; nor shall any
white man, excepting those in the employment of the Indian Department, be permitted to
reside upon the said reservation without permission of the tribe. . . "

This Treaty did not specifically reserve the
right unto the Indians to exclude outsiders.  However, the Treaty minutes, taken
contemporaneously with the discussions leading up to the actual signing of the Treaty
document, clearly indicates the understanding of the Yakimas as to the import of the
Treaty.  It is apparent to the undersigned that such Treaty minutes guarantee to the
Yakimas a "tract of land into which no white man could go without their
consent." (Treaty minutes p. 8-10) Further, the understanding of the Yakimas as to
the intent and purpose of the Treaty was clearly spelled out in the following colloquy on
p. 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 be
there that long to keep the whites from pushing into our Country"?

Gen. Palmer "Certainly."

Looking Glass "Will you mark the
piece of Country I have marked and say the Agent shall keep the whites out"?

Gen. Palmer "None will be permitted
to go there but the Agent and persons employed, without your consent."

This is most persuasive; construing a Treaty in
the sense in which it was understood by the Indians has been the consistent historic
hallmark of the ruling of the Courts.  This understanding must be derived not only
from the express language of the Treaty and the minutes, but from all circumstances
surrounding its execution.  United States v. Winans , 198 U.S. 371 (1905); Washington
Passenger Fishing Vessel Association , 443 U.S. 685 (1979).  Such
interpretation 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.  United
States 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).  A reading of the Treaty and the minutes, together, paint a
clear picture of the understanding of the Indians as to the import of the Treaty upon
their rights.

In Coeur d'Alene Tribal Farm , 11 BNA OSHC
1705 (No. 78-6081, 78-6082, 1983), the Commission held that the right to exclude outsiders
from their reservation 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 upon 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. Couer d'Alene Tribal Farm ,
751 F.2d 1113, 12 BNA OSHC 1169 (9th Cir. 1985) The Court stated, however, that a federal
statute of general applicability that is silent on the subject of Indian tribes will not
be applied in derogation of rights guaranteed by Indian Treaties.  Unlike the Coeur
d'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 exclusive
use.  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 land
reserved unto the Indians.   The Coeur d'Alene case above is clearly
distinguishable from the instant case by the existence of the Yakima Treaty and its
provisions, the Treaty minutes and the circumstances of ultimate understanding thereof by
the Indians, all made remarkably clear by a reading of both documents.

DECISION :

Based upon the foregoing, the undersigned finds
that the application of the Occupational Safety and Health Act would infringe upon the
rights guaranteed to the Indians by the Yakima Treaty.  The citation in the above
captioned action is, therefore, DISMISSED.

It is SO ORDERED.

Benjamin R. Loye

Judge, OSHRC

Dated: May 17, 1989

FOOTNOTES:

[[1]] The treaty at issue before the court in
Warm Springs provided as follows:

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 (quoting Treaty, Art. 1, para.
3).

The court rejected the argument that the term
"reside" should be construed narrowly to prohibit non-Indians only from
occupying reservation land.  The court concluded that "[r]ead within the context
of the entire Treaty and in light of the history of Native American relations, the
provision sets forth a general right of exclusion [of non-Indians]." Id. at 185.

Similarly, the treaty creating the Yakima Indian
reservation states:

All of which tract shall be set apart and, so
far 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 the
employment of the Indian Department, be permitted to reside upon the said reservation
without permission of the tribe and the Superintendent and agent.

Treaty with the Yakimas, 1855, Art. II.

[[2]] In Coeur d'Alene the Commission relied on
Navajo 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, and
the Tenth Circuit agreed, that a sawmill operated by the Navajo tribal government is not
subject to the Act.  In reversing the Commission's decision in Coeur d'Alene, the
Ninth Circuit expressed disagreement with the Tenth Circuit's decision in NFPI. 751 F.2d
at 1117 n.3.