United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, D.C. 20036-3457

SECRETARY OF LABOR,

Complainant, 

v. Docket No. 18-0934 

RED LAKE NATION FISHERIES, INC.,

Respondent. 

APPEARANCES: 

For the Complainant: 

Brooke E. Worden, Esq. 

Office of the Solicitor

U.S. Department of Labor 

Chicago, Illinois

For the Respondent: 

Joseph Plumer, Esq. 

Plumer Law Office

Bemidji, Minnesota 

BEFORE: William S. Coleman

Administrative Law Judge

DECISION AND ORDER OF DISMISSAL

The Respondent, Red Lake Nation Fisheries, Inc., is a commercial enterprise 

owned and operated by a federally recognized Indian tribe known as the Red Lake Band 

of Chippewa Indians. The Respondent is in the business of harvesting wild-caught fish

from waters on the tribe’s reservation, and then processing the fish and selling fish 

products to the general public. The Respondent operates within the boundaries of the 

tribe’s reservation and employs only members of the tribe. 
2 

Following the drowning deaths of two of the Respondent’s employees in Lower 

Red Lake in northern Minnesota in November 2017, the Occupational Safety and Health 

Administration (OSHA) cited the Respondent for two alleged violations of rules that had 

been promulgated pursuant to the Occupational Safety and Health Act of 1970 (the OSH 

Act, or Williams-Steiger Act). 

The Respondent timely contested the citations and has now filed a motion to have 

the citations dismissed. The undersigned has treated this motion as a motion for 

summary judgment. For the reasons described below, the motion is granted on the 

grounds that the OSH Act does not give the Secretary of Labor the authority (1) to 

regulate the conditions of workplace health and safety at the Respondent’s workplace, or 

(2) to enter the tribe’s reservation to inspect the Respondent’s workplace. 

If this order becomes a final order pursuant to section 12(j) of the OSH Act, the 

United States Court of Appeals for the Eighth Circuit is the court to which the Secretary 

may file a petition for review pursuant to section 11(b) of the Act. 29 U.S.C. §§ 661(j) & 

660(b). As discussed below, the outcome here is the outcome that the Eighth Circuit 

would most likely reach if it were to adjudicate the issues presented. 

Background 

Based on the record developed on the Respondent’s motion, there is no genuine 

dispute of fact respecting the following matters. 

The Respondent is a business enterprise named Red Lake Nation Fisheries, Inc. 

The Respondent is a subsidiary company of Red Lake, Inc. Red Lake, Inc. is wholly 

owned and operated by a federally recognized Indian tribe that is known as the Red Lake 

Band of Chippewa Indians (Red Lake Band). See Indian Entities Recognized and 
3 

Eligible to Receive Services from the United States Bureau of Indian Affairs, 83 Fed. 

Reg. 34863, 34865 (July 23, 2018). Both the Respondent and Red Lake, Inc. are

corporations that were formed and organized under Red Lake Band tribal law. 

(Declaration of S. Strong). 

Red Lake, Inc. is a governmental instrumentality of the Red Lake Band. All 

shares of Red Lake, Inc. are owned by the Red Lake Tribal Council for the benefit of the 

Red Lake Band and its recognized members. The officers and employees of Red Lake, 

Inc. are charged with carrying out economic advancement functions of the Red Lake 

Band and its members. The board of directors for Red Lake, Inc. manages its businesses 

and affairs, which includes the business of the Respondent. The members of the board 

are appointed by the Red Lake Band’s Tribal Council, and all are enrolled members of 

the Red Lake Band. (Declaration of S. Strong). 

The Respondent’s business address is 19050 Minnesota Highway 1 East, Redby, 

Minnesota 56670, which is located on the Red Lake Indian Reservation. The Respondent 

was established to provide employment opportunities for members of the Red Lake Band 

and to promote the social, economic, and educational goals of the Red Lake Band Tribal 

Council. The Respondent engages in the commercial practice of harvesting wild-caught 

fish from waters on the reservation and processing the fish into fish products that it sells 

to the general public throughout the United States. The Respondent’s operations of fish 

harvesting and processing fish products for commercial sale occur exclusively within the 

boundaries of the Red Lake Indian Reservation. The Respondent employs only enrolled 

members of the Red Lake Band. (Declaration of S. Strong). 

The Respondent sells fish products directly to the general public through a public 
4 

website and by telephone. According to the Respondent’s public website, the 

Respondent ships its fish products for next day delivery to locations “all over the United 

States” via a well-known commercial delivery service. The Respondent also sells fish 

products directly to the general public from a location on the reservation situated on 

Minnesota Highway 1. The Respondent also distributes its fish products to some retail 

outlets in the State of Minnesota for subsequent re-sale to the general public. (See

Exhibits to Sec’y Response to Motion).

The Respondent maintains a public website from which it markets its fish 

products to the general public. That website contains the following promotional and 

informational representations:

• “Our mission is to sustainably manage, harvest, and prepare 

superior quality wild fish products, inspired by our Native 

American culture, and deliver them directly to your doorstep.” 

• “We only sell what tribal fisherman catch on Red Lake.”

• “We still fish in the traditional ways, using the wisdom of our 

elders that was handed down from generation to generation. Our 

fish are wild-caught by tribal fishermen, employing local 

knowledge and ancestral practices to deliver high quality fish 

products in the most natural way.” 

• “It is our goal to bring you the quality fish products that you would 

expect from a world class fishery. Red Lake Industries have been 

featured in quality restaurants and grocery stores throughout the 

nation. Although we are not as well known as some larger 

established fisheries, our product remains the freshest and most 

delicious that can be found on the market. Our fish is handharvested, hand-processed and fresh shipped every day.... Our 

world class products stand in the forefront of the aquatic food 

industry.” 

• “We are FDA approved and under regulations we are not allowed 

to take back fish that has been out of our control.” 

(Exhibits to Sec’y Response to Motion). 
5 

On November 6, 2017, a boat operated by the Respondent’s employees capsized 

while on Lower Red Lake on the Red Lake Indian Reservation, resulting in the drowning 

deaths of two employees who had been working on board. Their deaths were not 

confirmed until their bodies were recovered in March 2018. On March 23, 2018, an

official from the OSHA area office located in Eau Claire, Wisconsin, conducted OSHA 

inspection number 1303745 at the Respondent’s location in Redby, Minnesota, on the 

Red Lake Indian Reservation. 

1

As a result of that inspection, on April 26, 2018, the OSHA area office issued to 

the Respondent a one-item serious citation and a one-item “other than serious” citation, 

with proposed monetary penalties for each alleged violation. 

The serious citation alleged that on or about November 6, 2017 the Respondent 

had violated a safety standard regarding personal protective equipment that is codified at

29 C.F.R. § 1910.132(a) when the Respondent did not require employees to wear, and 

employees did not wear, personal flotation devices “while performing tasks associated 

with gillnetting from a boat, such as but not limited to a 20 ft. Hewescraft Open 

Fisherman.” The citation directed the Respondent to abate the violation by a specified 

date. 

The “other than serious” citation alleged that the Respondent had failed to timely 

report the deaths of employees in a work-related incident in violation of the reporting 

1 Minnesota has a federally approved “state plan” for the regulation of workplace 

health and safety, but the state plan excepts “[a]ny establishment owned or operated by 

an Indian tribe ... within an Indian reservation.” See 29 C.F.R. § 1952.8 (referring to 

www.osha.gov/dcsp/osp/stateprogs/minnesota.html for “several notable exceptions” to 

the Minnesota state plan).
6 

regulation codified at 29 C.F.R. § 1904.39(a)(1). The citation states that this violation 

was corrected during the inspection on March 23, 2018. 

Discussion

The Respondent timely contested the citations and proposed penalties, thereby 

invoking the jurisdiction of the independent Occupational Safety and Health Review 

Commission (Commission) pursuant to section 10(c) of the OSH Act. 29 U.S.C. 

§ 659(c). The Secretary then filed a formal complaint pursuant to the Commission’s 

rules of procedure, wherein the Secretary re-asserted the violations and proposed 

penalties that had been alleged in the original citations. The Respondent then filed its

answer to the complaint, wherein it denied the alleged violations. The Respondent also 

filed a motion to dismiss the citations on the ground that the Secretary “lacks authority 

under the [OSH Act] to assert jurisdiction over the [Respondent], which is a government 

enterprise wholly owned and operated by the Red Lake Band of Chippewa Indians,” 

which “is a federally recognized Indian tribe.” 

The Respondent’s memorandum in support of the motion presents three 

independent arguments for granting the motion, the first two of which are meritorious. 

The first argument is grounded in the Red Lake Band’s right of self-governance with 

respect to regulation of the conditions of workplace health and safety, and the second 

argument is grounded in the Red Lake Band’s inherent right to exclude non-members 

from its reservation. 2

 

2The Respondent’s third argument in support of dismissal is that Congress 

intended to exempt tribal governments from coverage under the OSH Act just as 

Congress had exempted state governments from coverage by defining the term 

“employer” as used in the Act not to “include ... any State.” 29 U.S.C § 652(5). Nothing 
7 

Standard of Review 

The Respondent’s motion to dismiss identifies rule 12(b)(1), Fed. R. Civ. P., as 

providing grounds for dismissal because of “lack of subject-matter jurisdiction.” 3

 But 

the motion does not actually present an issue of “subject-matter jurisdiction” as that term 

is used in Rule 12(b)(1). Subject matter jurisdiction pertains to a tribunal’s “statutory or 

constitutional power to adjudicate the case.” Steel Co. v. Citizens for a Better Env’t, 523 

U.S. 83, 89 (1998); see also Carlisle v. United States, 517 U.S. 416, 434–35 (1996)

(Ginsburg, J. concurring) (defining “subject matter jurisdiction” as the “authority [of the 

court] to adjudicate the type of controversy involved in the action,” quoting Restatement 

(Second) of Judgments § 11 (1982) ). 

The Respondent has not argued that the Commission lacks subject matter 

jurisdiction to adjudicate this case, which necessarily involves adjudicating whether the 

OSH Act applies to the Respondent. The Commission itself appears to have concluded 

that the OSH Act gives it the authority to adjudicate a contested citation that the 

Secretary has issued to a tribal employer. The Commission has vacated citations issued 

to tribal enterprises when it has concluded that the OSH Act did not apply, and it has 

adjudicated the merits of such citations when it has concluded that the OSH Act did

in the text of section 652(5) reflects any congressional intent that tribal governments be 

exempted from coverage of the OSH Act along with state governments. The third 

argument asserted in support of the motion to dismiss lacks merit and is denied without 

further elaboration. 

3The Commission’s Rules of Procedure provide that in the absence of a different 

rule in the Commission’s rules, proceedings before the Commission are conducted “in 

accordance with the Federal Rules of Civil Procedure.” 29 C.F.R. § 2200.2(b); 29 U.S.C. 

§ 661(g). There being no specific Commission rule regarding the presentation of certain 

defenses by motion at the pleading stage, Rule 12 of the federal rules provides the 

procedure for the Respondent’s motion. 
8 

apply. See, Navajo Forest Prod. Indus., 8 BNA OSHC 2094 (No. 76-5013, 1980) (OSH 

Act not applicable), aff’d 692 F.2d 709 (10th Cir. 1982); Coeur d'Alene Tribal Farm, 11

BNA OSHC 1705 (No. 78-6081, 1983) (consolidated) (OSH Act not applicable), rev’d, 

751 F.2d 1113 (9th Cir. 1985); Mt. Adams Furniture Co., No. 88-2239, 1991 WL 

232785, at *1 (OSHRC, Nov. 6, 1991) (OSH Act applicable); Mashantucket Sand & 

Gravel, 17 BNA OSHC 1391 (No. 93-1985, 1995) (OSH Act not applicable), rev’d, 95 

F.3d 174 (2d Cir. 1996); Akwesasne Mohawk Casino, 20 BNA OSHC 2091 (No. 01-

1424, 2005) (OSH Act applicable); Turning Stone Casino Resort, 21 BNA OSHC 1059 

(No. 04-1000, 2005) (OSH Act applicable). 

Rather than presenting an issue of the Commission’s subject matter jurisdiction, 

the motion to dismiss presents the issue whether the OSH Act applies to the cited 

activities of a tribal commercial enterprise operating on the tribe’s reservation. See

Mashantucket Sand & Gravel, 17 BNA OSHC at 1391 (defining the issue in terms of 

whether the OSH Act applies to the tribal enterprise at worksites within a reservation).

Thus, although the Respondent’s motion is nominally asserted pursuant to federal 

rule 12(b)(1), the motion is more properly regarded as seeking dismissal under federal 

rule 12(b)(6) for “failure to state a claim upon which relief can be granted.” Rule 

12(b)(6) provides the more appropriate ground for seeking dismissal because if the OSH 

Act does not apply to the Respondent, the citations that OSHA issued to the Respondent 

under the OSH Act would be a nullity, and the allegations of the complaint would fail to 

state claims upon which relief could be granted. 

Because matters outside the pleadings have been presented and considered in 

connection with the deemed Rule 12(b)(6) motion to dismiss, Rule 12(d) of the federal 
9 

rules requires that the motion be treated as a motion for summary judgment under federal 

rule 56. 

The Commission’s rules of procedure expressly provide that motions for 

summary judgment in matters before the Commission are governed by Federal Rule of 

Civil Procedure 56. Commission Rule 40(j), codified at 29 C.F.R. § 2200.40(j). 4

 Rule 

56(a) provides that a party is entitled to summary judgment upon a showing “that there is 

no genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Rule 56 “mandates the entry of summary judgment, after adequate time 

for discovery and upon motion, against a party who fails to make a showing sufficient to 

establish the existence of an element essential to that party’s case, and on which that 

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 

(1986). The Commission summarized the oft-described standard for evaluating a motion 

for summary judgment as follows in Ford Motor Co., 23 BNA OSHC 1593, 1593-94 

(No. 10-1483, 2011): 

In reviewing a motion for summary judgment, a judge is 

not to decide factual disputes. Gallo v. Prudential 

Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). 

Rather, the role of the judge is to determine whether any 

such disputes exist. Id. When determining if there is a 

genuine factual dispute, the fact finder must resolve all 

ambiguities and draw all reasonable inferences in favor of 

4 The Commission’s Rules of Procedure were recently revised with an effective 

date of June 10, 2019. Rules of Procedure, 84 Fed. Reg. 14554 (April 10, 2019) (to be 

codified at 29 C.F.R. pt. 2200). Citations herein to the Commission’s rules in the C.F.R. 

are intended to reflect the ultimate codification of those rules in the 2020 edition of the 

C.F.R. Until such actual codification, the current revised rules are posted on the 

Commission’s website (www.oshrc.gov) and may also be found at 84 Fed. Reg. 14554-

579. 
10 

the non-moving party. United States v. Diebold, Inc., 369 

U.S. 654, 655 (1962); Tufariello v. Long Island R.R. Co., 

458 F.3d 80, 83 (2d Cir. 2006). Thus, not only must there 

be no genuine dispute as to the evidentiary facts, but there 

must also be no controversy as to the inferences to be 

drawn from them. Schwabenbauer v. Bd. of Educ. of City 

Sch. Dist. of City of Olean, 667 F.2d 305, 313 (2d Cir. 

1991). [internal footnotes omitted.] 

Whether the OSH Act applies to the workplace of a tribal employer presents “a 

question of law reviewed de novo.” Dep't of Labor v. OSHRC (Warm Springs Forest 

Prods. Indus.), 935 F.2d 182, 183 (9th Cir. 1991); San Manuel Indian Bingo & Casino v. 

NLRB, 475 F.3d 1306, 1312 (D.C. Cir. 2007) (considering de novo whether the National 

Labor Relations Act [NLRA] applies to a tribal enterprise, and noting that because the 

NLRB’s “expertise and delegated authority does not relate to federal Indian law, we need 

not defer to the Board’s” interpretation of the NLRA); Soaring Eagle Casino & Resort v. 

NLRB, 791 F.3d 648, 655 (6th Cir. 2015) (analyzing de novo whether a tribe’s inherent 

sovereignty rights prevent application of the NLRA to a tribal commercial enterprise); 

NLRB v. Little River Band of Ottawa Indians Tribal Gov't (Little River Band), 788 F.3d 

537, 543 (6th Cir. 2015) (ruling that “federal Indian law and policy are areas over which 

the [agency] has no particular expertise, and so we need not defer to the [agency’s]

conclusions with respect to them”). 

The Commission likewise considers this question of law de novo, without any 

deference to the Secretary of Labor’s interpretation of the OSH Act. 5

 Martin v. OSHRC 

5 In 1972 the Secretary promulgated an interpretive regulation, codified at 29 

C.F.R. § 1975.4(b)(3), that declares that tribal employers are subject to the requirements 

of the OSH Act. As authority for that declaration, the regulation cites to the Supreme 
11 

(CF & I Steel Corp.), 499 U.S. 144, 154 (1991) (concluding “that Congress intended to 

delegate to the Commission the type of nonpolicymaking adjudicatory powers typically 

exercised by a court in the agency-review context”). 

Applicable Circuit Court of Appeals Precedent

In adjudicating whether the OSH Act applies to a tribal enterprise, the 

Commission applies the precedent of the court of appeals for the circuit in which it is 

highly probable that a petition for review would be filed. Mt. Adams Furniture Co., No. 

88-2239, 1991 WL 232785, at *1 (OSHRC, Nov. 6, 1991) (applying dispositive Ninth 

Court’s decision in Federal Power Commission v. Tuscarora Indian Nation (Tuscarora), 

362 U.S. 99, 116 (1960), where the Court stated “that a general statute in terms applying 

to all persons includes Indians and their property interests.” Section 1975.4(b)(3) 

provides: 

(3) Indians. The Williams-Steiger Act contains no 

special provisions with respect to different treatment in the 

case of Indians. It is well settled that under statutes of 

general application, such as the Williams-Steiger Act, 

Indians are treated as any other person, unless Congress 

expressly provided for special treatment. “FPC v. 

Tuscarora Indian Nation,” 362 U.S. 99, 115–118 (1960); 

“Navajo Tribe v. N.L.R.B.,” 288 F.2d 162, 164–165 (D.C. 

Cir. 1961), cert. den. 366 U.S. 928 (1961). Therefore, 

provided they otherwise come within the definition of the 

term ‘employer’ as interpreted in this part, Indians and 

Indian tribes, whether on or off reservations, and nonIndians on reservations, will be treated as employers 

subject to the requirements of the Act.

The Commission in Navajo Forest Products Industries, 8 BNA OSHC 2094, 2098 (No. 

76-5013, 1980), aff’d, 692 F.2d 709 (10th Cir. 1982), considered this interpretive 

regulation and noted that it “simply reiterates the Tuscarora rule,” and “provides no 

additional guidance in resolving the issues presented in this case.” This assessment of the 

regulation’s import is consistent with the Commission’s duty to address the issue de 

novo. See also Little River Band, 788 F.3d at 543 (ruling that a “reviewing court does not 

owe Chevron deference to an agency construction if the agency adopts the construction 

on the basis of a judicial opinion and not on the basis of policy considerations regarding 

the statute it administers”).
12 

Circuit precedent on issue of whether the OSH Act applied to a tribal enterprise, while

noting extant Commission and judicial precedent that was contrary to that dispositive 

Ninth Circuit precedent); see also Dana Container, Inc., 25 BNA OSHC 1776, 1792 n.10 

(No. 09-1184, 2015), aff’d, 847 F.3d 495 (7th Cir. 2017) (noting that the Commission 

generally applies the precedent of the circuit court of appeals to which it is “highly 

probable” that the matter will be appealed, even though that precedent may differ from 

the Commission's precedent); Hensel Phelps Constr. Co., 26 BNA OSHC 1773, 1778 

(No. 15-1638, 2017) (ALJ) (vacating a citation upon applying controlling Fifth Circuit 

precedent that was contrary to Commission precedent), rev’d, 909 F.3d 723 (5th Cir. 

2018) (determining that the 37-year-old controlling Fifth Circuit precedent on which the 

ALJ had relied in vacating the citation was in conflict with subsequent case law, resulting 

in the court disregarding that precedent and reversing and remanding the matter to the 

Commission), on remand, 2019 WL 1500063 (O.S.H.R.C.A.L.J., Feb. 20, 2019) 

(affirming the citation that the ALJ had originally vacated). 

Section 11(b) of the OSH Act permits the Secretary to “obtain review ... of any 

final order of the Commission ... in the court of appeals for the circuit in which the 

alleged violation occurred or in which the employer has its principal office.” 29 U.S.C. 

§ 660(b). The alleged violations occurred in the state of Minnesota, and the 

Respondent’s office is in Minnesota. Minnesota is in the geographic region of the United 

States Court of Appeals for the Eighth Circuit, so under section 11(b) the Secretary may

file a petition for review of a final order of the Commission in this matter only in that 

court. The role of the Commission is thus to adjudicate the issues here in a manner 

consistent with controlling precedent of the Eighth Circuit. Mt. Adams Furniture Co., 
13 

1991 WL 232785.

Impermissible Infringement on 

Right of Tribal Self-Governance 

The Eighth Circuit’s decision in EEOC v. Fond du Lac Heavy Equipment & 

Construction Co. (Fond du Lac), 986 F.2d 246 (8th Cir. 1993), is dispositive on the issue 

whether the application of the OSH Act to the Respondent would impermissibly infringe 

on the Red Lake Band’s right of self-governance. The court in Fond du Lac held that the 

Age Discrimination in Employment Act (ADEA) impermissibly affected a tribe’s right to 

self-governance with respect to a tribe member who was alleging that a tribe-owned

equipment and construction company that was located on the reservation and that 

occasionally did work off the reservation had denied him employment because of his age. 

Applying the principles of Fond du Lac leads to the conclusions here that (1) 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, (2) for a statute of general 

application such as the OSH Act to affect that right of tribal self-government requires 

evidence of a clear and plain congressional intent to do so, and (3) because there is no 

affirmative evidence of any such clear and plain congressional intent, the Eighth Circuit 

would likely hold that the OSH Act does not apply to the Respondent’s workplace. 

The court in Fond du Lac commenced its analysis with the general observations 

that Indian tribes “possess inherent powers of a limited sovereignty,” id. at 248 (quoting 

United States v. Wheeler, 435 U.S. 313, 322 (1978)), and remain a “separate people, with 

the power of regulating their internal and social relations,” id. (quoting Santa Clara 

Pueblo v. Martinez, 436 U.S. 49, 55 (1978) ), but that “Congress has plenary authority to 
14 

limit, modify or eliminate the powers of local self-government which the tribes otherwise 

possess.” Id. (quoting Santa Clara Pueblo, 436 U.S at 56). The court then described the 

principles it would apply for determining whether Congress has exercised its plenary

authority to affect a tribe’s inherent powers of local self-government. The court’s

description included recognition of the general rule stated by the Supreme Court in 

Tuscarora: 

The Supreme Court has stated that “general acts of 

Congress apply to Indians as well as to all others in the 

absence of a clear expression to the contrary.” Federal 

Power Commission v. Tuscarora Indian Nation, 362 U.S. 

99, 120 (1960). This general rule in Tuscarora, however, 

does not apply when the interest sought to be affected is a 

specific right reserved to the Indians. United States v. 

Winnebago Tribe of Nebraska, 542 F.2d 1002, 1005 (8th 

Cir.1976). Specific Indian rights will not be deemed to 

have been abrogated or limited absent a “clear and plain” 

congressional intent. United States v. Dion, 476 U.S. 734, 

738 (1986) (citations omitted); Winnebago Tribe, 542 F.2d 

at 1005 (citations omitted). A clear and plain intent may be 

demonstrated by an “express declaration” in the statute, by 

the “legislative history,” and by “surrounding 

circumstances.” Dion, 476 U.S. at 739. 

Id.

The court in Fond du Lac stated that “consideration of a tribe member’s age by a 

tribal employer should be allowed to be restricted (or not restricted) by the tribe in 

accordance with its culture and traditions,” and that “[f]ederal regulation of the tribal 

employer’s consideration of age in determining whether to hire the member of the tribe to 

work at the business located on the reservation interferes with an intramural matter that 

has traditionally been left to the tribe’s self-government.” Fond du Lac, 986 F.2d at 249. 
15 

The Eighth Circuit concluded that “the tribe’s specific right of self-government would be 

affected,” by “[s]ubjecting an employment relationship between the tribal member and 

his tribe to federal control and supervision,” so that the Tuscarora presumption of general 

applicability did not apply. Id. Since the Tuscarora presumption did not apply, the 

Eighth Circuit searched for “clear and plain” congressional intent to apply the ADEA to 

the Indian tribes. Finding no such intent in either the text of the ADEA or in its 

legislative history, the court concluded that Congress did not intend the ADEA to apply 

to the tribal employer. 

The OSH Act, like the ADEA at issue in Fond du Lac, is a statute of general 

applicability that is silent on its applicability to Indian tribes, and thus is subject to the 

Tuscarora presumption of applicability unless an exception to the application of that 

presumption applies. Donovan v. Coeur d’Alene Tribal Farm (Coeur d’Alene), 751 F.2d 

1113, 1115 (9th Cir. 1985). 

The Ninth Circuit’s application of the Tuscarora rule in Coeur d’Alene is in 

contradistinction to the Eighth Circuit’s application of Tuscarora in Fond du Lac. 

Although the Ninth Circuit in Coeur d’Alene ultimately concluded that the OSH Act 

applied to the tribal commercial farm involved there, the court acknowledged at the 

outset that an Indian tribe “has the inherent sovereign right to regulate the health and 

safety of workers in tribal enterprises.” Id. Nevertheless, the Ninth Circuit held that the 

tribe’s “operation of a farm that sells produce on the open market and in interstate 

commerce is not an aspect of tribal self-government,” so that the application of the OSH 

Act to the tribal farm did not touch on a tribe’s “exclusive rights of self-governance in 

purely intramural matters,” and thus the OSH Act was not excepted from the Tuscarora
16 

rule. Id. at 1116. 

The Ninth Circuit in Coeur d’Alene applied circuit precedent that described three 

exceptions to the Tuscarora rule, the first of which the court branded as “aspects of tribal 

self-government” exception. In the Ninth Circuit, the self-government exception to 

Tuscarora applies to a statute that “touches ‘exclusive rights of self-governance in purely 

intramural matters.’ ” Id. (quoting United States v. Farris, 624 F.2d 890, 893 (9th Cir.

1980) ). The Ninth Circuit stated that this exception was “designed to except purely 

intramural matters such as conditions of tribal membership, inheritance rules, and 

domestic relations.” In holding that the OSH Act applied to the tribal commercial farm, 

the Ninth Circuit stated that the operation of the farm “free of federal health and safety 

regulations is ‘neither profoundly intramural ... nor essential to self-government.’ ” Id., 

quoting Farris at 893. 

The Eighth Circuit would likely agree with the Ninth Circuit that Indian tribes 

have “the inherent sovereign right to regulate the health and safety of workers in tribal 

enterprises,” Coeur d’Alene, 751 F.2d at 1115, but would likely disagree with the Ninth 

Circuit’s conclusion that application of the OSH Act to a commercial tribal enterprise 

that operates on a reservation and employs only members of the tribe does not touch upon 

a tribe’s “exclusive rights of self-government in purely intramural matters.” Id. at 1116. 

Indeed, the Eighth Circuit in Fond du Lac cited Coeur d’Alene as being “contra” to its

conclusion that the Tuscarora presumption did not operate to make the ADEA applicable 

to the tribal enterprise there “[b]ecause the tribe’s specific right of self-government would 

be affected” thereby. Fond du Lac, 986 F.2d at 249 (emphasis added). 

The self-government exception to the Tuscarora rule employed by the Ninth 
17 

Circuit in Coeur d’Alene is narrower than the Eighth Circuit’s corresponding 

“sovereignty” or “self-government” exception applied in Fond du Lac, and therein lies a 

critical difference in how the Eighth and Ninth circuits apply the Tuscarora presumption 

with respect to the self-government exception. The analytical framework that the Eighth 

Circuit employed in Fond du Lac requires simply that a tribe’s right of self-government 

be “affected” by federal regulation. Fond du Lac, 986 F.2d at 249. In contrast, the Ninth 

Circuit’s “tribal self-government” exception applied in Coeur d’Alene excepts only

“purely intramural matters such as conditions of tribal membership, inheritance rules, and 

domestic relations from the general rule” of Tuscarora. Coeur d’Alene, 751 F.2d at 

1116; accord, Smart v. State Farm Ins. Co., 868 F.2d 929, 935 (7th Cir. 1989) (stating 

that “[a] statute of general application will not be applied to an Indian Tribe when the 

statute threatens the Tribe's ability to govern its intramural affairs, but not simply 

whenever it merely affects self-governance as broadly conceived”); Reich v. 

Mashantucket Sand & Gravel, 95 F.3d 174, 178 (2d Cir. 1996) (stating that the “tribes' 

retained sovereignty reaches only that power ‘needed to control ... internal relations[,] ... 

preserve their own unique customs and social order[, and] .... prescribe and enforce rules 

of conduct for [their] own members,’ ” quoting Duro v. Reina, 495 U.S. 676, 685–86 

(1990) ); cf. San Manuel Indian Bingo & Casino v. N.L.R.B., 475 F.3d 1306, 1311-15 

(D.C. Cir. 2007) (applying an analytical framework that differs from the frameworks 

employed in either Coeur d’Alene or in Fond du Lac for determining whether the 

Tuscarora presumption applies). 

So, since the Eighth Circuit would likely agree with the Ninth Circuit that Indian 

tribes have “the inherent sovereign right to regulate the health and safety of workers in 
18 

tribal enterprises,” Coeur d’Alene, 751 F.2d at 1115, the Eighth Circuit would apply its 

broad self-government exception to the Tuscarora presumption, and consequently likely 

conclude that the Tuscarora presumption does not apply because application of the OSH 

Act to the Respondent, like the application of the ADEA in Fond du Lac, would “dilute” 

that aspect of the Red Lake Band’s sovereignty and would “affect” that “specific right of 

self-government.” Fond du Lac, 986 F.2d at 249. 

Upon concluding that Tuscarora’s general rule of applicability does not apply, the 

Eighth Circuit would conclude that the OSH Act applied only upon finding “a clear and 

plain congressional intent” to make the OSH Act apply to the Indian tribes. Id. That 

inquiry requires “some affirmative evidence of congressional intent, either in the 

language of the statute or its legislative history.” Id. 986 F.2d at 250, citing United States 

v. Dion, 476 U.S. 734, 739–40 (1986). Absent such affirmative evidence of 

congressional intent, the Eighth Circuit would determine that the OSH Act does not apply 

to the Respondent. 

There is no such congressional intent expressed in text of the OSH Act, and no 

part of the OSH Act’s legislative history has been identified that reflects a congressional 

intent that the OSH Act apply to the Indian tribes. The absence of affirmative evidence 

of a clear and plain congressional intent that the OSH Act apply to the Indian tribes 

would likely cause the Eighth Circuit to conclude that the Act does not apply to the 

Respondent’s workplace. Therefore, in this case the Eighth Circuit would likely vacate

the citations upon concluding, based on the principles employed in Fond du Lac, that the 

OSH Act does not apply to the cited work operations of the Respondent.

It is not necessary to develop a fuller evidentiary regarding the extent to which the 
19 

federal regulation of the conditions of health and safety at the Respondent’s workplace 

would affect the Red Lake Band’s right of self-government. Cf. Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 255 (1986) (noting that a court should act with caution in 

granting summary judgment and may deny summary judgment “where there is reason to 

believe that the better course would be to proceed to a full trial”). Although the Eighth 

Circuit’s decision in Fond du Lac appears to be grounded in part on tribal culture and 

traditions respecting age, the dissenting judge noted that there was no evidentiary record 

before the court on the impact of the ADEA on tribal culture or traditions. Id. at 251 

(Wollman, J., dissenting) (noting “there is no evidence that Indian tribes have any longstanding cultural practices that favor the employment of younger rather than older 

members of the tribe”). The decision in Fond du Lac thus strongly suggests that the 

Eighth Circuit would not undertake to assess the extent to which federal regulation of the 

conditions of workplace health and safety of a tribal employer would affect a tribe’s right 

to self-government, but would rather conclude that any federal regulation that “affects” 

that area of tribal sovereignty would require affirmative evidence that Congress had a

“clear and plain” intent to limit, modify, or eliminate the tribe’s inherent sovereign right 

to regulate the health and safety of workers in tribal enterprises. While the factual record 

developed on the present motion is scant, it nonetheless compels the conclusion that the 

Respondent is entitled to judgment as a matter of law on the ground that the OSH Act is 

not applicable to the Respondent because the Act “affects” the Red Lake Band’s right of 

self-governance with respect to conditions of workplace health and safety. On the record

established on the Respondent’s motion, therefore, there is no genuine dispute as to any 

material fact (or as to the inferences to be drawn therefrom), and the Respondent is 
20 

entitled to judgment as a matter of law. 6

Impermissible Infringement on 

Right to Exclude Non-Members from the Reservation

The Respondent’s second independent argument in support of its motion is that

application of the OSH Act to its workplace would impermissibly abrogate the Red Lake 

Band’s inherent right to exclude non-members from the Red Lake Indian Reservation. 

(Resp’t Mem. at 20-27). 

The Red Lake Indian Reservation was established by a treaty with the United 

States made in 1863. The 1863 treaty contains a description of the lands that the tribe 

ceded to the United States. The geographic area of the Red Lake Indian Reservation 

became those lands that the Red Lake Band then owned and claimed that the Red Lake 

Band did not through that treaty “cede, sell and convey to the United States all their right, 

title and interest.” 1863 Treaty with the Chippewa—Red Lake and Pembina Bands, art. 2, 

13 Stat. 667 (1863); State of Minnesota v. Hitchcock, 185 U.S. 373, 389 (1902) (noting 

that article 6 of the 1863 treaty refers to the lands that the tribe was not ceding to the 

United States in the treaty as “the reservation,” and that the treaty’s “effect was to leave 

the Indians in a distinct tract reserved for their occupation”); United States v. White, 508 

6 As discussed earlier, the Secretary may file a petition for review of the 

Commission’s final order in this matter only in the Eighth Circuit. 29 U.S.C. § 660(b). If 

a court of appeals other than the Eighth Circuit had been the court in which it were highly 

probable that a petition for review would be filed, then the development of a fuller 

evidentiary record regarding the extent to which the OSH Act would affect the Red Lake 

Band’s right of self-government, or affect its culture and traditions, may have been 

deemed necessary. (See cases from other circuits cited in this part of the Discussion). 

Given the limited evidentiary material that has been filed in connection with the 

Respondent’s motion to dismiss, review by other courts of appeal might have counseled 

against granting summary judgment for the Respondent on the “self-government” 

exception to Tuscarora at this early stage of Commission proceedings. 
21 

F.2d 453, 456–57 (8th Cir. 1974) (noting that “[u]pon a review of the tribal history of the 

Red Lake Band of Chippewa Indians, it is clear that a tract of land was ‘reserved’ in a 

treaty for their occupation; that the occupied lands were thereafter regarded by the United 

States as constituting the Red Lake Reservation; and that the Red Lake bands were 

recognized as the sole owners by right of original Indian occupancy” [internal citations 

and footnotes omitted] ). 

No provisions of the 1863 treaty (or of an 1864 treaty that amended it [13 Stat. 

689 (1864) ] ) state expressly that the Red Lake Band has the right to exclude nonmembers from the reservation. 7

 Nevertheless, “a hallmark of Indian sovereignty is the 

power to exclude non-Indians from Indian lands.” Merrion v. Jicarilla Apache Tribe

(Merrion), 455 U.S. 130, 141 (1982). This power to exclude non-members from the 

reservation is an “inherent sovereign right” that is “independent” of any express treaty 

language that stipulates such a power to exclude. Warm Springs Forest Prods. Indus.,

935 F.2d at 186. 

The Ninth Circuit in Coeur d’Alene rejected the tribal employer’s argument that 

the tribe’s inherent right to exclude non-members (including OSHA inspectors) from the 

“reservation is a ‘fundamental aspect’ of tribal sovereignty that cannot be infringed 

7 Had there been such an express treaty provision to exclude non-members, there 

is authority that holds that a statute in derogation of such a treaty right would not be 

deemed to abrogate the treaty provision absent clear and express congressional intent to 

do so. Donovan v. Navajo Forest Prod. Indus., 692 F.2d 709, 712 (10th Cir. 1982); 

contra Dep't of Labor v. OSHRC (Warm Springs Forest Prods. Indus.), 935 F.2d 182, 

186-87 (9th Cir. 1991) (concluding that “the conflict between the Tribe's [treaty] right of

general exclusion and the limited entry necessary to enforce” the OSH Act was not 

sufficient to bar application of the Act to the tribal employer, and that “[w]ere we to 

construe the Treaty right of exclusion broadly to bar application of the [OSH] Act, the 

enforcement of nearly all generally applicable federal laws would be nullified”). 
22 

without a clear expression of congressional intent.” Id. at 1117. The tribal employer in 

Coeur d’Alene argued that the Supreme Court’s decision in Merrion had sub silentio

overruled Tuscarora “at least to the extent that Tuscarora allows Congress to silently or 

implicitly infringe sovereign tribal rights to exclude non-Indians from tribal lands.” Id. 

In rejecting that argument, the Ninth Circuit distinguished Merrion on its facts. Id.

In contrast, the Tenth Circuit in Donovan v. Navajo Forest Prod. Indus. (Navajo 

Forest), 692 F.2d 709, 712 (10th Cir. 1982), reached a contrary conclusion regarding the 

effect of Merrion on Tuscarora’s general rule. In part II of the Navajo Forest opinion, in 

what appears to be an alternative holding, the court ruled that “Merrion, in our view, 

limits or, by implication, overrules Tuscarora ..., at least to the extent of the broad 

language relied upon by the Secretary contained in Tuscarora.” Navajo Forest, 692 F.2d 

at 713. Part II of opinion then concluded that absent some expression of congressional 

intent, a statute of general application such as the OSH Act could not be deemed to 

abrogate an Indian tribe’s inherent right to exclude non-members from the reservation: 

The United States retains legislative plenary power to 

divest Indian tribes of any attributes of sovereignty. Lone 

Wolf v. Hitchcock, 187 U.S. 553 (1903). Absent some 

expression of such legislative intent, however, we shall not 

permit divestiture of the tribal power to manage reservation 

lands so as to exclude non-Indians from entering thereon 

merely on the predicate that federal statutes of general 

application apply to Indians just as they do to all other 

persons (in this case “employers”) unless Indians are 

expressly excepted therefrom. We believe that Merrion ... 

settled that issue in favor of the tribes.

692 F.2d at 714. 

The Eighth Circuit in Fond du Lac cited Navajo Forest with approval, although 
23 

that approval appears to have been related to part I of that opinion (in which the Tenth 

Circuit ruled that the OSH Act was not applicable because its application would be in 

derogation of an express treaty provision limiting the right of entry to the reservation). 

Fond du Lac, 986 F.2d at 249. The Eighth Circuit in Fond du Lac appeared not to 

comment on part II of the Tenth Circuit’s opinion in Navajo Forest. However, the court 

in Fond du Lac endorsed the proposition that in determining whether an exception to the 

Tuscarora rule applies, a tribe’s inherent sovereign right should be regarded no 

differently than if that identical right had been expressly stipulated in a treaty. Fond du 

Lac, 986 F.2d at 249, n.4. Part II of the Tenth Circuit’s opinion in Navajo Forest

employs the same logic.

The Eighth Circuit’s jurisprudence on the application of the Tuscarora rule thus 

appears very similar to the jurisprudence of the Tenth Circuit. That similarity suggests

strongly that the Eighth Circuit is more likely than not to follow part II of the Tenth 

Circuit’s opinion in Navajo Forest. If the Eighth Circuit were to do so, then it would 

conclude that the OSH Act does not apply to the Respondent on the ground that the Act 

impermissibly infringes on the Red Lake Band’s inherent right to exclude non-members 

from its reservation.

For these reasons, there is no genuine dispute as to any material fact, and the 

Respondent is entitled to judgment as a matter of law on the ground that application of 

the OSH Act to the Respondent would impermissibly infringe on the Red Lake Band’s 

inherent right to exclude non-members from its reservation. 
24 

ORDER

For the reasons stated above, the citations as re-alleged in the Secretary’s 

complaint fail to state claims upon which relief can be granted, and the Respondent is 

entitled to judgment as a matter of law. Fed. R. Civ. P. 56. 

The citations and proposed penalties arising out of OSHA inspection number 

1303745 are vacated, and the Secretary’s complaint, which re-alleges those citations and 

proposed penalties, is dismissed. 

 /s/___________________________ 

WILLIAM S. COLEMAN

Administrative Law Judge

DATED: August 6, 2019