Red Lake Nation Fisheries, Inc. is a business owned and operated by the Red Lake Band of Chippewa Indians, a federally recognized Indian tribe located in Minnesota. All shares of the tribal enterprise are owned by the Red Lake Tribal Council for the benefit of the Red Lake Band and its members. Red Lake Nation Fisheries sells wild fish it catches from the waters located within the tribe’s reservation boundaries and only employs members of the Red Lake Band. On November 4th, 2019, the U.S. Secretary of Labor filed a Petition for Review by the U.S. Court of Appeals for the Eighth Circuit of a final order of the Occupational Safety and Health Review Commission (OSHRC). An OSHRC Administrative Law Judge issued an opinion regarding the authority of OSHA over internal tribal matters that the Sec. seeks clarification on.
The Occupational Safety and Health Administration (OSHA) became involved after two of Red Lake Nation Fisheries’ employees drowned in Lower Red Lake in November, 2017. OSHA cited Red Lake Nation Fisheries (RLNF) for two violations pursuant to the Occupational Safety and Health (OSH) Act. The business was cited for violating the safety standard of not requiring employees to wear personal protective equipment and for the employees not wearing personal flotation devices “while performing tasks associated with gillnetting from a boat.” It was also cited for not reporting the deaths of employees in a work-related incident in a timely fashion.
Red Lake Nation Fisheries filed for a motion to dismiss the citations based on the Secretary of Labor’s lack of authority under the OSH Act to assert jurisdiction over it, a government enterprise, owned and operated by a federally recognized Indian tribe. It argued Red Lake Band has the right of self-governance with respect to regulating workplace health and safety. It also stated it has the right to exclude non-members from its reservation.
Contrary to the Red Lake Nation Fisheries' argument, the Commission argued that the OSH Act gives it the authority to adjudicate citations the Secretary issues to tribal employers. It noted the decision in Fed. Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99, 80 S. Ct. 543, 4 L. Ed. 2d 584 (1960), that held “a general statute in terms applying to all persons includes Indians and their property interests.” The Court of Appeals however stated the holding in E.E.O.C. v. Fond du Lac Heavy Equip. & Const. Co., 986 F.2d 246 (8th Cir. 1993), is dispositive on the matter of whether the application of the OSH Act infringed on the Red Lake Band’s right of self-governance. Fond du Lac held the Age Discrimination in Employment Act impermissibly affected a tribe’s right to self-governance. In using the principles of Fond du Lac, the Court of Appeals held the “Red Lake Band has inherent authority to regulate workplace health and safety for a tribal commercial enterprise that operates on the tribe’s reservation”, and the Eight Circuit would likely hold the OSH Act does not apply on the reservation because there is no evidence Congress intended the OSH Act to affect the tribal right of self-governance.
The U.S. Court of Appeals held that applying the OSH Act to the Red Lake Nation Fisheries would infringe on the Red Lake Band’s inherent right to exclude non-members from its reservation. The Court of Appeals stated the Eighth Circuit Court is most likely to follow Part II of the Tenth Circuit’s opinion in Donovan v. Navajo Forest Prod. Indus., 692 F.2d 709 (10th Cir. 1982). Part II of the opinion stated that absence of Congressional intent, the general application of an act like the OSH Act could not abrogate an Indian tribe’s inherent right to exclude non-members from the reservation. The Eight Circuit’s application of Tuscarora suggests it would most likely conclude the OSH Act does not apply to the Red Lake Nation Fisheries and infringes on the Red Lake Band’s inherent right to exclude non-members from its reservation.
Administrative Law Judge Coleman decided in favor of Red Lake Fisheries, Inc. Judge Coleman granted a motion to dismiss to Red Lake Nation Fisheries on account of the OSHA Act not granting the Secretary of Labor authority to regulate conditions of the workplace health and safety in their workplace, nor does it grant OSHA authority to enter the tribe’s reservation to inspect their workplace.
This is an interesting case because it incorporates the uniqueness of Indian Law with the health and safety authority in the United States regulated by OSHA. For more information on Indian Law or Health and Safety contact Whitcomb Selinsky PC at (866) 476-4558.