OSHA inspections at tribal workplaces

March 12, 1998

The Honorable Jay Johnson
U.S. House of Representatives
[Recipient address omitted]
Dear Congressman Johnson:

Thank you for your letter of November 9, 1997, to the Occupational Safety and Health Administration (OSHA) on behalf of your constituent [name withheld]. [Name withheld] works at a casino operated by [company name withheld] and has expressed concerns that her working conditions have resulted in debilitating injuries. I apologize for the delay in this response.

[Name withheld] exercised her ability to file a complaint with OSHA's Appleton, Wisconsin Area Office. The Area Office expressed its concern that the agency was precluded from conducting enforcement activity on tribal lands. The Area Office requested that the OSHA National Office make a jurisdictional determination on the applicability of the Occupational Safety and Health Act of 1970 (OSH Act) to tribal enterprises. We have determined that OSHA, in most instances, may conduct inspections at tribal enterprises.

The OSH Act charges OSHA with the responsibility to assure safe and healthful working conditions for working men and women. OSHA has always considered the OSH Act to be a statute of general applicability. Therefore, the OSH Act reaches workplaces located on tribal lands and operated by tribal employers. The position is consistent with the Supreme Court's decision in FPC v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960), which declares that "a general statute in terms applying to all persons includes Indians and their property interests."

The courts have, however, established some limited exceptions to the general applicability of the OSH Act to tribal enterprises. The OSH Act would apply to a tribal enterprise unless its application touched upon purely intramural matters (such as tribal membership, domestic relations and inheritance) or violated a treaty or unless the legislative history of the Federal statute or surrounding circumstances in its enactment indicated that the statute was not to apply. In light of President Clinton's April 29, 1994 Memorandum, "Government-to-Government Relations With Native American Tribal Governments," we strive to assure that the agency's actions do not interfere in governmental functions which are integral to tribal sovereignty. Since the tribal enterprise in question (a casino) does not appear to involve purely intramural matters, OSHA has the authority to respond to complaints about corresponding working conditions.

We hope that the above discussion has clearly delineated OSHA's enforcement policy as it applies to tribal enterprises. The complaint filed by [name withheld] will be returned to our Appleton, Wisconsin Area Office for further action consistent with this letter.

Sincerely,

John B. Miles
Director
Directorate of Compliance Programs