NAVAJO FOREST PRODUCTS INDUSTRIES

OSHRC Docket No. 76-5013

Occupational Safety and Health Review Commission

September 30, 1980

  [*1]  

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Jan T. Chilton, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   A decision of Administrative Law Judge John A. Carlson is before the Commission for review pursuant to section 12(j) of the Act, 29 U.S.C. §   661(i).   The issue is whether Judge Carlson erred in concluding that the Respondent, Navajo Forest Products Industries ("NFPI"), an enterprise operated by the Navajo Indian tribe on the Navajo Indian reservation, is not subject to the Act because application of the Act to NFPI would violate the treaty by which the Navajo reservation was created. n1 For the reasons that follow, we agree with the judge that NFPI is not subject to the Act, and we therefore affirm his decision vacating the citations and proposed penalties issued by the Secretary of Labor ("Secretary") following inspections of NFPI by his authorized agents. n2

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Treaty Between the United States of America and the Navajo Tribe of Indians, June 1, 1868, 15 Stat. 667 ("the Treaty").

n2 NFPI had also argued before the judge that because it is subject to occupational safety and health regulation by the Indian Health Service, an agency of the Public Health Service, it is exempt under 29 U.S.C. §   653(b)(1), which provides that the Act does not apply "to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health." Judge Carlson rejected the argument, finding that the Indian Health Service had not been shown either to prescribe or enforce occupational safety or health standards within the meaning of §   653(b)(1).

Additionally NFPI contended before the judge that the inspections which resulted in these proceedings were conducted without search warrants and without the voluntary consent of NFPI, contrary to the fourth amendment.   See Marshall v. Barlow's, Inc., 436 U.S. 307 (1978). In view of his disposition of the case, the judge expressly declined to rule on this issue.

Neither the §   653(b)(1) nor the fourth amendment issues are before us on review.

  [*2]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

I

NFPI was created as a result of efforts by the Bureau of Indian Affairs ("BIA"), an agency of the Department of the Interior, in cooperation with the Navajo tribal government, to improve the economic and social condition of the Navajo Indians by developing the extensive timber resources on the Navajo reservation. n3 When the planning that culminated in NFPI began late in 1952, there was only a single sawmill on the reservation, a small and antiquated facility operated by the tribe under BIA direction.   At that time, the timber stands were not being managed in a productive manner, for overmature trees were not being cut sufficiently to allow for the development and maturation of new growth.   Although the existing sawmill and associated logging operations employed about 100 people, there was little or no other industry, and most Indians subsisted by farming or raising livestock.   On the other hand, the tribe was in a position to contribute to the capitalization of new industrial enterprises because it was earning income from the sale of uranium and oil leases.

- - - - - - - - - - - - - - - - - -Footnotes-   [*3]   - - - - - - - - - - - - - - - - -

n3 The Navajo-Hopi Rehabilitation Act of 1950, 25 U.S.C. § §   631-640, provides in pertinent part as follows:

In order to further the purposes of existing treaties with the Navajo Indians, to provide facilities, employment, and services essential in combating hunger, disease, poverty, and demoralization among the members of the Navajo and Hopi Tribes, to make available the resources of their reservations for use in promoting a self-supporting economy and self-reliant communities, and to lay a stable foundation on which these Indians can engage in diversified economic activities and ultimately attain standards of living comparable with those enjoyed by other citizens, the Secretary of the Interior is authorized and directed to undertake . . . a program of basic improvements for the conservation and development of the resources of the Navajo and Hopi Indians, the more productive employment of their manpower, and the supplying of means to be used in their rehabilitation . . . .

25 U.S.C. §   631. Projects authorized under this section include "[s]urveys and studies of timber, coal, mineral, and other physical and human resources" and "[d]evelopment of industrial and business enterprises."

  [*4]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

BIA's field agent, its area forester for the Navajo reservation, with the assistance of outside consultants including forestry economists and existing private lumber companies, recommended to the tribal government n4 plans for the creation of a tribal enterprise staffed by a management board but otherwise an entity of the Navajo tribe. n5 Following approval of these plans by the tribal government and, thereafter, by BIA, NFPI was created in 1959, and actual production operations began in 1963.   In addition to its acquisition of the equipment of the existing sawmill, it received several appropriations of capital and also a long-term loan from the tribe for the initial construction and expansion of its facilities. n6 Subsequently BIA also provided some additional funding.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 The Navajo Nation is governed by a 74-member Tribal Council elected by popular vote.   In addition to its responsibility to make laws for the Navajo people, which are codified in the Navajo Tribal Code, the council has broad executive authority.   Subject to approval by BIA as prescribed by statute, the council controls the sale, lease, and other disposition of Navajo land and resources; solicits Federal and state grants; maintains a police force; administers the welfare laws and distributes welfare funds; and performs other governmental functions in agriculture, fish and game, housing, and land use.   On occasion it will delegate its authority to a group of 18 council members known as the Advisory Committee.

The Navajo Tribe also maintains a court system on the reservation. The Navajo Tribal Code provides for both trial and appellate courts with criminal jurisdiction over all violations of tribal law committed by Indians within the reservation and civil jurisdiction over all actions involving Indian defendants who are found on the reservation. In addition, the tribal courts have jurisdiction over all matters involving the domestic relations of Indians and the descent and distribution of unrestricted property of deceased Indians located on the reservation.

n5 NFPI is not a corporation.   The management board was created in order that the tribal government would not be involved in day-to-day operational matters but would retain overall policy direction of NFPI.   The board consists of four non-Indians selected on the basis of experience in forestry, lumber operations, or business matters generally, and five members of the tribe. Appointments to the board are subject to the approval of the Advisory Committee of the Tribal Council, and the Committee can remove board members.   In addition, the board selects a full-time general manager to be responsible for NFPI's daily operation, and this appointment must also be approved by the Advisory Committee.   The Commissioner of Indian Affairs, however, may veto both appointments to the board and the selection of the general manager.

n6 NFPI does not issue stock or sell bonds but rather depends upon grants and loans for its capitalization.   Any advance of tribal funds to NFPI, as well as the borrowing of money by NFPI, must be approved by BIA.   In addition, BIA calculates and bills NFPI for stumpage, that is, the fees it must pay to the tribe as the owner of the timber it removes from tribal lands.

  [*5]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In addition to instituting proper forest management techniques, NFPI's objectives include increasing the employment of the Navajo people, involving them in industry, and training them not only in the operation of relatively complex and sophisticated machinery but also in the management of an industrial facility.   Indeed, the Tribal Council established a specific policy that the majority of NFPI's employees be Navajo Indians.   As a result, the number of non-Indian employees declined from approximately 80 when operations started to about 25 at the time this case was heard, even though total employment increased during that period from about 380 to 640 or 650 workers.   Furthermore, as a result of NFPI's objective to maximize Indian employment, any non-Indian employee is required to leave as soon as an Indian becomes qualified to perform that job.

Although NFPI is intended to succeed financially, making a profit is not its primary objective, and to some extent profit has had to be sacrificed to serve the other objectives.   For example, in the selection of equipment, emphasis has been placed on machinery [*6]   of a labor-intensive type in order to provide as many jobs as possible, and NFPI's labor costs are therefore higher than those of a comparable private business.   Nevertheless, in most years of its operations NFPI has realized a profit, out of which it has made periodic cash payments to the tribal general fund in repayment of the tribe's appropriations. n7 Neither NFPI nor the tribe itself pay federal or state income taxes.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 During the period July 1, 1959 through June 26, 1977 NFPI had net sales of over $97 million and paid almost $35 million in wages to Navajo employees.   Its aggregate profits over the same period were in excess of $11.5 million.   As of June 26, 1977 NFPI had repaid in cash $2.18 million of the tribe's total capital contributions of $8.35 million.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In addition to direct payments to the tribe, NFPI performs a number of other services of benefit to the Navajo Indians generally, including the construction and maintenance of roads n8 and the construction and rental of housing units. n9 NFPI also drilled [*7]   wells from which water is pumped and distributed by the tribal utility authority. n10 NFPI employees participate in the same medical insurance, workmen's compensation, and retirement programs as do employees of the tribal government, and in situations not governed by NFPI's limited personnel manual, NFPI will follow the personnel policies and procedures of the tribal government.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 Although roadbuilding is a normal incident of logging operations, NFPI also constructs roads at the request and for the benefit of Indian residents on the reservations. For example, NFPI will construct roads to facilitate access by Indians to the hospital, post office, and stores, and many of its roads are built to a higher standard than logging roads on private lands.   NFPI's road construction plans must be approved by BIA.

n9 NFPI constructed and operates certain residential and community facilities at the townsite of Navajo, New Mexico, where NFPI is located, and it furnishes medical as well as recreational services.   These services, however, are not restricted to NFPI employees but are available to all those on the reservation.

n10 The Navajo Tribal Utility Authority, which supplies power, water, and sewer service, is one of several tribal enterprises organized in the same manner as NFPI.   Other such tribal enterprises include the Navajo Community College, the Navajo Agricultural Products Authority, and the Navajo Engineering and Contracting Authority.   There are also enterprises in aviation and in arts and crafts.   NFPI, indeed, was not only the first Navajo tribal enterprise but was also conceived of as a model for other Indian tribes throughout the country.

  [*8]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

II

The Secretary's compliance officer inspected NFPI's facilities on the Navajo reservation on May 12 and 13, 1976, and October 14, 1976.   The Secretary thereafter cited NFPI for allegedly violating sections 5(a)(1) and 5(a)(2) of the Act, 29 U.S.C. § §   654(a)(1) and (a)(2). n11 These sections require each "employer" to comply with their requirements.   An "employer" is "a person engaged in a business affecting commerce who has employees, but does not include the United States or any State or political subdivision of a State." 29 U.S.C. §   652(5).   The parties agree that NFPI falls within this literal definition of "employer." They disagree, however, on the legal consequence of this fact, essentially reiterating the arguments they made before the judge.   The Secretary contends that, because NFPI fits within the Act's definition of "employer," and the Act contains no explicit exclusion for Indian tribes or tribal enterprises, NFPI is subject to the Act.   NFPI argues, however, that the Act does not apply to it because such application would be inconsistent with rights reserved to the tribe under the Treaty,   [*9]   note 1 supra. NFPI contends that in the absence of specific language in the Act demonstrating that Congress intended to abrogate Indian treaty rights, such as a provision explicitly applying the Act to Indians, the Act cannot be applied so as to impair the treaty rights of the Navajos.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n11 The parties stipulated that if NFPI was found to be subject to the Act and if its argument concerning the validity of the inspections, note 2 supra, was rejected, NFPI would withdraw its notice of contest.   Thus, NFPI does not dispute the existence of the violative conditions alleged in the citations.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Secretary's argument is based on the general rule, which NFPI does not dispute, that federal statutes of general applicability apply to Indians as well as to other persons.   FPC v. Tuscarora Indian Nation, 362 U.S. 99 (1960) ("Tuscarora"). The Secretary contends that the case now before us is similar to Navajo Tribe v. NLRB, 288 F.2d 162 (D.C. Cir. 1961), cert. denied, 366 U.S. 928 (1961), in which the [*10]   court of appeals applied the Tuscarora rule in holding that a private corporation operating a milling plant on the Navajo reservation was subject to the National Labor Relations Act, 29 U.S.C. § §   151-168, despite a tribal resolution prohibiting all unionization activities on the reservation. The Secretary further contends that application of the Act to NFPI would not be inconsistent with any rights reserved to the Navajo tribe by the Treaty, but that even if treaty rights would be impaired, the Act's broad wording and pervasive purpose demonstrate an implicit congressional intent to abrogate any treaty rights that would preclude the Act's enforcement against NFPI. n12 The Secretary argues that his position is supported by his own interpretive regulation at 29 C.F.R. §   1975.4(b)(3) n13 and by the fact that other federal agencies have applied federal health and safety laws of general applicability to Indians. n14

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n12 The parties agree that Congress has the authority to abrogate by statute any Indian treaty, in whole or in part.   Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 1676 (1978); Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).

n13 This regulation provides:

§   1975.4 Coverage

* * *

(b) Clarification as to certain employers

* * *

(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 non-Indians on reservations, will be treated as employers subject to the requirements of the Act.

n14 At the oral argument in this case, the Commission afforded the parties an opportunity to submit supplemental information and memoranda bearing on the applicability of other federal health and safety statutes to Indians.   Both parties have submitted memoranda addressing the point.   The Secretary has attached to his memorandum copies of a number of documents, primarily representing the views of agencies responsible for enforcing various federal laws.   NFPI raises a number of evidentiary objections to the Commission's consideration of these documents, including (1) the documents were not introduced at the hearing before the judge; (2) they have not been authenticated; (3) they are hearsay and do not fall within any exception to the hearsay rule; (5) they purportedly contain expert opinions without any evidence regarding the qualifications of the authors to offer such opinions; and (5) NFPI has not had the opportunity to explore the basis on which the authors of the documents rested their opinions or to determine whether the agencies have since revised their opinions.

Although some of NFPI's arguments are technical in nature, others, such as the contention that NFPI has not had an opportunity to challenge the basis of the opinions offered, question the basic evidentiary value of the documents.   Fundamental fairness would preclude the Commission from according the documents significant weight without affording NFPI the opportunity to introduce rebuttal evidence.   See Seattle Crescent Container Serv., 79 OSAHRC 91/A2, 7 BNA OSHC 1895, 1979 CCH OSHD P24,002 (No. 15242, 1979).   However, because the documents were submitted at the Commission's request, we will allow then into the record and consider the information they contain.   As will be discussed later in this opinion, we do not think the documents have a significant bearing on the resolution of this case, and it is therefore unnecessary to offer NFPI the opportunity to introduce rebuttal evidence.

  [*11]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

NFPI contends that the general rule of Tuscarora does not apply when application of a statute would impair treaty rights unless there is a clear congressional intent to abrogate such rights. n15 It asserts that treaties between the federal government and Indian tribes are to be strongly construed in favor of preserving the Indians' right to regulate their own affairs, and that a congressional intent to abrogate such rights is not lightly imputed absent an explicit statement to that effect. n16 NFPI argues that, as an integral part of the Navajo tribe, with the principal purpose of improving the living conditions of the tribe, its activities represent an exercise of tribal sovereignty that is protected from regulation under a statute of general applicability without an explicit congressional declaration overriding the treaty rights reserving such sovereignty to the tribe.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n15 NFPI cites United States v. Winnebago Tribe of Nebraska, 542 F.2d 1002 (8th Cir. 1976), and United States v. White, 508 F.2d 453 (8th Cir. 1974).

n16 NFPI cites Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 99 S.Ct. 3055 (1979), and Menominee Tribe of Indians v. United States, 391 U.S. 404, 413 (1968).

  [*12]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

III

Judge Carlson concluded that Tuscarora does not control this case, and that the absence of an unmistakable Congressional intent that the Act applies to Indians precludes such application to the extent that Indian treaty rights would be violated.   We agree.   In Tuscarora, the question was whether certain land, which was owned in fee simple by the Tuscarora Indian Nation and was not the subject of any treaty, could be taken by eminent domain under section 21 of the Federal Power Act, 16 U.S.C. §   814. That section authorizes the condemnation of "the lands or property . . . necessary to the construction, maintenance, or operation of any [licensed power project]." The Tuscarora Nation argued that this statute did not authorize the taking of its land because it did not expressly mention Indian land.   Rejecting this argument, the Court stated, "it is now well settled by many decisions of this Court that a general statute in terms applying to all persons includes Indians and their property interests." 362 U.S. at 116.

Although Tuscarora holds that statutes of general applicability apply to [*13]   Indians, that case did not itself involve any impairment of Indian treaty rights.   Moreover, we have not been cited to, and have not found, any case in which the Tuscarora rule has been applied in derogation of Indian treaty rights in the absence of an express statutory provision mentioning Indians.   To the contrary, the cases reaching the point have held that the Tuscarora rule does not apply when treaty rights would be impaired. United States v. Winnebago Tribe of Nebraska, 542 F.2d 1002 (8th Cir. 1976); United States v. White, 508 F.2d 453 (8th Cir. 1974). These cases are consistent with the long-standing rule, recently reiterated by the Supreme Court in a case involving Indian treaty rights, that "[a]bsent explicit statutory language, we have been extremely reluctant to find congressional abrogation of treaty rights." Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 99 S.Ct. 3055, 3077 (1979). See also Cook v. United States, 288 U.S. 102, 120 (1933)

It is true, of course, that the Supreme Court has left the door slightly ajar to finding abrogation of treaty rights without an express statutory declaration,   [*14]   for it used the words "extremely reluctant," instead of more absolute language.   In using such language, however, the Court recognized that whether a statute abrogates or modifies treaty rights must ultimately depend on the intent of Congress in adopting the statute, and that such intent can be established by means other than the explicit language of the statute itself, such as legislative history or the impact of related, contemporaneous statutes.   See Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968). In this case, however, there is no legislative history on the point, or any other indication that Congress intended for the Act to impair Indian treaty rights.   The Act's broad wording and pervasive, remedial purpose are not, by themselves, evidence of such a Congressional intent.   Thus, there is no reason to depart from the general principle that abrogation of treaty rights requires explicit statutory language.   Accordingly, we conclude that the Act does not abrogate or modify any rights reserved to the Navajo tribe by the Treaty.

This conclusion is not inconsistent with Navajo Tribe v. NLRB, supra, on which the Secretary relies.   That case concerned [*15]   the applicability of the National Labor Relations Act to a private company operating a plant on the Navajo reservation. Accordingly, Navajo Tribe v. NLRB provides no support for the proposition that the Act can be applied to an enterprise of the Indian tribal government in derogation of the Navajo tribe's treaty rights.   Accord, Fort Apache Timber Co., 226 N.L.R.B. 503 (1976). n17

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n17 In Fort Apache Timber Co., supra, the National Labor Relations Board held that the National Labor Relations Act does not apply to a tribal enterprise similar to NFPI.   Thus, to the extent that the case law under the National Labor Relations Act is useful in resolving the present case, it supports NFPI's position rather than the Secretary's.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In concluding that the Act does not abrogate Indian treaty rights, we have considered the Secretary's interpretive regulation at 29 C.F.R. §   1975. 4(b)(3), quoted at note 13 supra, and the documents submitted by the Secretary regarding the application of other federal health [*16]   and safety laws to Indians.   See note 14 supra. The Secretary's regulation simply reiterates the Tuscarora rule; it does not address the question whether Tuscarora applies in a situation where Indian treaty rights would be impaired. Thus, the regulation provides no additional guidance in resolving the issues presented in this case.

The other documents submitted by the Secretary primarily restate the Tuscarora rule and thus also do not shed light on the extent to which federal laws apply to Indians where such application would impair Indian treaty rights.   Moreover, the documents represent ex parte conclusions reached by various federal officials, so that arguments that might have been made by Indians in an adversary proceeding do not appear to have been considered.   Additionally, none of the documents appears to involve a situation analogous to that presented by this case.   Accordingly, the documents are of no assistance in determining whether the Act can be applied in a manner inconsistent with the Navajos' treaty rights. n18

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n18 The following is a brief description and analysis of each document.   The exhibit designations are those given by the Secretary in submitting the documents.

Exhibit A is an undated letter to the Administrator of the Department of the Interior's Mining Enforcement and Safety Administration from the Department's Associate Solicitor for Mine Health and Safety.   The letter primarily addresses whether a state, under an agreement with the Secretary of the Interior, can prescribe and enforce state health and safety laws against mines located on Indian reservations and subject to the Federal Metal and Nonmetallic Mine Safety Act, 30 U.S.C. § §   721-740.   The letter concludes that a statutory procedure, which involves the state obtaining the consent of the affected Indians, exists for the states to acquire such authority.   The letter further states that the Secretary of the Interior may enforce the Federal Metal and Nonmetallic Safety Act against any mine over which a state does not have jurisdiction.   However, the letter does not elaborate on the reasons for reaching this conclusion, and does not consider the possibility of conflicting treaty rights.

Exhibit B is a letter from the Solicitor of the Department of the Interior to the General Counsel of the Environmental Protection Agency.   The letter addresses whether states can regulate non-Indian sources of air pollution on Indian reservations, and concludes that such state regulation is permitted unless a tribe has adopted its own air pollution control legislation meeting the requirements of the Clean Air Act, 42 U.S.C. § §   7401-7642.   The letter cites Tuscarora for the proposition that the Clean Air Act, as a federal statute of general applicability, applies on Indian reservations. However, the letter is primarily concerned with the respective rights of the Indian tribes and the states, so it cannot be said that the letter deals with whether the Clean Air Act can be enforced to the extent it might conflict with Indian treaty rights.   Moreover, the letter refers to 1977 Clean Air Act Amendments, 42 U.S.C. §   7474, which specifically empower Indian tribes to determine whether to permit further deterioration of the air quality on their reservations. Thus, Congress has specifically dealt with the question of the applicability of the Clean Air Act to Indian reservations, and that is a further distinguishing factor from this case.

Exhibits C, D, and E are letters, dated June 9, 1976, September 15, 1976, and November 10, 1976, from a Food and Drug Administration (FDA) official to the Chairman of the Swinomish Tribal Senate.   The letters reflect efforts by the FDA to secure compliance by the Swinomish Indian Fish Company with certain requirements of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § §   301-392.   The final letter denies the company a permit to introduce certain packaged products into interstate commerce due to the company's failure to comply with certain FDA regulations. Even assuming that the Swinomish Indian Fish Company is a tribal enterprise similar to NFPI, the situation addressed in Exhibits C, D, and E is clearly distinguishable from that in this case.   The FDA is not directly regulating the operations of the Swinomish Indian Fish Company, but is denying it a permit to introduce its goods in interstate commerce. Exhibit C states, "(t)his action in no way deters you from continuing your custom canning or commercial distribution within the State of Washington." In this case, however, the Secretary is seeking to directly regulate the working conditions of NFPI employees.   Thus, Exhibits C, D, and E do not bear on the issue before us in this case.

Exhibit F is a letter, dated April 21, 1966, from the Department of Labor's Associate Solicitor for Interpretations and Opinions to the Department's Regional Attorney.   It concerns the application of the Fair Labor Standards Act, 29 U.S.C. § §   201-219, to an unidentified employer purportedly furnishing certain utility services on an Indian reservation. The letter relies on Tuscarora in concluding that this employer is subject to the Fair Labor Standards Act. The letter contains insufficient information to allow us to determine any relevance to this case.   In essence, it simply restates the Tuscarora rule.

Exhibit G is a letter, dated November 28, 1938, to the Secretary of the Interior from the Department of Interior's Solicitor.   The letter deals with the application of the Fair Labor Standards Act (referred to in the letter as the Wages and Hours Act) to two lumber mills located on Indian reservations. Although the letter concludes that the Indian mills are subject to the Wages and Hours Act, that conclusion is of no assistance to us in deciding this case.   First, the letter can hardly be considered authoritative in view of the long passage of time since it was written and the fact that most of the cases on which both parties to this case rely have been decided since it was written.   In any event, there is no indication that the letter's author considered whether his conclusion would be the same if treaty rights were impaired.

Exhibit H is a letter, dated April 26, 1940, to the Director of the Bituminous Coal Division frd the Assistant Secretary of the Interior.   The letter concludes that the taxes imposed by the Bituminous Coal Act of April 26, 1937, 50 Stat. 72, apply to individual Indians producing coal on and near the Navajo reservation. The letter disclaims knowledge of any treaty that would exclude the Navajos from the application of the Bituminous Coal Act.   Thus, the letter does not address the question of whether a federal law applies when Indian treaty rights would be impaired.

  [*17]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

IV

NFPI's argument that the Act's application would breach treaty rights reserved to the Navajo tribe has two facets.   First, NFPI contends that a provision of the Treaty excluding most non-Indians from the reservation prohibits the entry of the Secretary's employees onto NFPI's facilities, and thereby precludes the conduct of inspections directed at enforcing the Act.   NFPI next contends that it is an integral part of the tribal government and application of the Act would therefore be inconsistent with the sovereign right of self-government reserved to the tribe by the Treaty.

The exclusion provision on which NFPI relies is found in Article II of the Treaty and states as follows:

[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.

NFPI points [*18]   out that the only federal employees permitted by this provision to enter the reservation are those "authorized by law to enter upon Indian reservations in discharge of duties imposed by law." It contends that the history and purpose underlying the inclusion of this language in the Treaty demonstrates that the only such federal employees are those specifically authorized to deal with Indian affairs.   NFPI asserts that provisions such as this were commonly included in Indian treaties because Indian uprisings prior to the time the treaties were negotiated had been provoked by intrusions on the Indians by outsiders, and particularly by detachments of the United States Army.   Thus, the intent of the provision was to minimize such intrusions by severely restricting the class of federal employees permitted to enter the reservation. NFPI also points out that reading Article II to permit the entry of any federal employee acting to discharge duties imposed by a law not specifically involving Indian affairs would render superfluous the language in Article II, "as may be authorized to enter upon Indian reservations."

NFPI further contends that, as a tribal enterprise, it represents an exercise [*19]   of the right of sovereignty reserved to the Navajo tribe by the Treaty. It argues that the evidence "establishes beyond doubt that NFPI is not an ordinary business enterprise, but an integral part of the Navajo tribal government fully entitled to invoke the tribe's treaty and sovereignty rights. . . .   NFPI pursues, albeit in a new form, the traditional purposes of Navajo self-government: betterment of the tribe's social, education, and economic status through utilization of the tribe's resources."

The Secretary contends that entry of his employees upon the Navajo reservation would be consistent with Article II of the treaty. He points out that section 8(a) of the Act, 29 U.S.C. §   657(a), n19 gives him the authority to enter the workplace of any employer.   Relying on his argument, discussed in section II supra, that laws of general applicability apply to Indians, the Secretary argues that section 8(a) gives him the authority to enter workplaces located on Indian reservations as well as workplaces located elsewhere.   Thus, the Secretary contends that he is "authorized by law [section 8(a)] to enter upon Indian reservations in discharge of duties imposed by law," and that the [*20]   Act therefore does not conflict with Article II of the Treaty.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n19 Section 8(a) provides, in pertinent part:

In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized --

(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and

(2) to inspect and investigate . . . any such place of employment. . .

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Secretary also argues that Article II at most prohibits him from entering the reservation to conduct a compliance inspection, and does not preclude the application of the Act to an enterprise located on the reservation. He points out that he can bring an enforcement proceeding following an investigation as well as an inspection, n20 and that such an investigation may not require his entry onto an employer's workplace. Thus, according to the Secretary, the applicability [*21]   of the Act does not hinge on whether he has the right to enter a particular workplace to conduct an inspection.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n20 The Secretary points to section 9(a) of the Act, 29 U.S.C. §   658(a), which provides, in pertinent part:

If, upon inspection or investigation, the Secretary . . . believes that an employer has violated a requirement of section 5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer . . . (emphasis added).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Secretary also contends that NFPI is not entitled to invoke the right of sovereignty reserved to the tribe by the Treaty. He argues that the sovereign rights of Indian tribes extend only to areas that are traditionally subjects of tribal self-government. He contends that the cases finding that Indians retained certain rights all involved such subjects, and asserts that this rule is implicit in the following language from United   [*22]    States v. White, supra: ". . .   However, areas traditionally left to tribal self-government, those most often the subject of treaties, have enjoyed an exception from the general rule that congressional enactments, in terms applying to all persons, includes Indians and their property interests." 508 F.2d at 455 (Emphasis added).

The Secretary maintains that the activities in which NFPI engages are not traditional activities of tribal self-government. He characterizes NFPI as a commercial enterprise "no different in its basic industrial operation than other industrial enterprises."

Judge Carlson concluded that Article II of the treaty precludes entry of the Secretary's employees onto the Navajo reservation. The judge reasoned:

The plain words of the phrase "as may be authorized to enter upon Indian reservations" require a grant of authority, unmistakably express or implied, for entry upon the reservation. Were there any ambiguity as to the intent of the treaty-makers, however, the result would be the same.   Any doubtful expression of a treaty's intent must be resolved in favor of the Indians as the weaker party. n21

- - - - - - - - - - - - - -   [*23]   - - - -Footnotes- - - - - - - - - - - - - - - - - -

n21 The judge cited Carpenter v. Shaw, 280 U.S. 363 (1950), and McClanahan v. State Tax Comm'n. of Arizona, 411 U.S. 164 (1973).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The judge further concluded that, as an arm and agency of the tribal government, NFPI "partakes of whatever rights or immunities are extended that government by treaty."

V

Prior to the time treaties were negotiated, Indian tribes were independent, sovereign nations.   McClanahan v. State Tax Commission of Arizona, 411 U.S. 164, 172 (1973). Through treaties, the tribes relinquished certain rights as sovereign nations as well as considerable amounts of land in return for protection by the United States government.   The treaties are not a grant of rights to the Indians but a reservation to them of all their rights and privileges as sovereign nations that were not expressly removed by treaty. United States v. Wheeler, 435 U.S. 313 (1978). The Supreme Court has recently summarized the status of Indian tribes as follows:

Indian tribes are "distinct, independent political communities, retaining their original [*24]   natural rights" in matters of local self-government. . . .   Although no longer "possessed of the full attributes of sovereignty," they remain a "separate people, with the power of regulating their internal and social relations." . . .   They have power to make their own substantive law in internal matters,. . . and to enforce that law in their own forums.

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 1675-76 (1978) (citations omitted).

Thus, the Treaty reserves to the Navajo tribe the general right of sovereignty, or self-government. Although this right is limited in certain ways by the Treaty itself and can be further limited, and indeed completely eliminated, by statute, to the extent it is not so limited it entitles the tribe to regulate its internal affairs free of outside interference.   The general right of sovereignty is reinforced by the specific right granted by Article II of the Treaty to exclude all outsiders from the reservation except those "authorized to enter upon Indian reservations in discharge of duties imposed by law . . . ." See McClanahan v. State Tax Commission of Arizona, supra, 411 U.S. at 174-75.

The Navajo tribe has chosen   [*25]   to accomplish certain governmental objectives through the establishment and operation of business enterprises such as NFPI.   The Secretary argues that such activities cannot be regarded as an exercise of the tribe's sovereignty because they do not represent traditional functions of tribal self-government. In essence, the Secretary contends that certain activities in which tribal governments engage are exercises of the tribe's right of sovereignty and others are not.

We do not agree.   It is true that many cases dealing with Indians' rights of sovereignty have involved activities that can be said to be traditional activities of tribal self-government. n22 However, those cases were each decided on their own facts and cannot be read to limit the Indian tribes' right of self-government. As noted above, the tribes retain all aspects of their sovereignty that have not been explicitly taken away by treaty or by statute, so there is no basis to limit those rights to only those that are "traditional." Cf. Santa Clara Pueblo v. Martinez, supra. n23

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n22 Cases in which courts have held that Indian tribes possess certain sovereign rights include the following: Santa Clara Pueblo v. Martinez, supra (sovereign immunity from lawsuits; the exclusive power of tribal courts to adjudicate tribal disputes); United States v. Winnebago Tribe of Nebraska, supra (immunity from the taking of treaty land by eminent domain); United States v. Wheeler, supra (power to punish tribal offenders); McClanahan v. State Tax Comm'n of Arizona, supra (immunity from the application of state laws to activities of Indians on reservations); Menominee Tribe of Indians v. United States, supra (hunting and fishing rights).

n23 In arguing that the sovereign rights of Indian tribes are limited to traditional activities of self-government, the Secretary relies on National League of Cities v. Usery, supra ("National League of Cities"). In that case, the Supreme Court held that Congress' authority under the Constitution to regulate interstate commerce could not be exercised in a manner that would interfere with the sovereign rights reserved to the states under the tenth amendment.   The Court therefore held unconstitutional an amendment to the Fair Labor Standards Act, 29 U.S.C. § §   201-219, in which Congress sought to extend the provisions of that Act establishing minimum wages and maximum hours of employment to state and local government employees.   As a corrolary to that holding, the Court drew a distinction between National League of Cities and several earlier cases, particularly United States v. California, 297 U.S. 175 (1936), in which the Court held that the Federal Safety Appliance Act, 45 U.S.C. § §   1-43, applied to a railroad owned and operated by the state of California.   The Court stated:

(In United States v. California) California's activity to which the congressional command was directed was not in an area that the States have regarded as integral parts of their governmental activities.   It was, on the contrary, the operation of a railroad engaged in "common carriage by rail in interstate commerce. . ."

National League of Cities, 426 U.S. at 853, n. 18 (citation omitted)

The Secretary interprets this distinction to mean that the operation of a business enterprise is not an exercise of sovereignty. On the other hand, NFPI relies on National League of Cities for the proposition that a sovereign's right to regulate the working conditions of its employees is a fundamental attribute of sovereignty and that "[r]egulation of the physical setting of government employment is at least an equally essentially attribute of sovereignty (as regulation of wages and hours of employment)."

We conclude that the Court's decision in National League of Cities is not useful in resolving the present case.   The entire thrust of National League of Cities involved the right of sovereignty reserved to the states by the tenth amendment.   However, the sovereign rights of Indians are derived from a different source and have different characteristics.   Compare Santa Clara Pueblo v. Martinez, supra (Indian tribe retains sovereign immunity) with Parden v. Terminal Ry. of Alabama, 377 U.S. 184 (1964) (states relinquished sovereign immunity with respect to suits authorized by Congress under commerce clause).   "Tribal reservations are not States, and the differences in the form and nature of their sovereignty make it treacherous to import to one notions of pre-emption that are properly applied to the other." White Mountain Apache Tribe v. Bracker, 100 S. Ct. 2578, 2583 (1980).

  [*26]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We also reject the Secretary's argument that section 8(a) of the Act, note 18 supra, overrides any treaty right that would otherwise preclude application of the Act to NFPI.   Section 8(a) authorizes the Secretary to enter and inspect the workplace of any "employer." Although NFPI meets the Act's literal definition of employer in that it is engaged in a business affecting commerce, we have concluded that NFPI is not subject to the Act in view of the right of sovereignty reserved to the Navajo tribe by the Treaty and the absence of any indication that Congress intended the Act to override Indian treaty rights.   Thus, section 8(a) does not authorize the Secretary to enter NFPI's workplace. Moreover, to read section 8(a) as permitting the Secretary to inspect the workplace of a tribal enterprise on the Navajo reservation would be inconsistent with the right granted the tribe in Article II of the Treaty to exclude from the reservation all outsiders except those government employees "authorized to enter Indian reservations. . . ." We agree with Judge Carlson's conclusion that this Article requires "a   [*27]   grant of authority, unmistakably express or implied, for entry upon the reservation." Such a grant of authority is lacking in this case. n24

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n24 Congress has enacted legislation explicitly authorizing entry of law enforcement agents on Indian tribal lands.   See, e.g., 25 U.S.C. §   231, which authorizes state agents, under regulations prescribed by the Secretary of the Interior, to enter tribal lands to enforce state laws concerning health and education.   This demonstrates that when Congress intends to authorize entry onto Indian lands for law enforcement purposes it knows how to do so.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Finally, the Secretary contends that the fact NFPI employs some non-Indians, currently approximately 25 in number out of a total workforce of about 650, is evidence that NFPI is not an exercise of tribal sovereignty. The Secretary points out that the concept of Indian sovereignty does not extend to tribal control of persons who are not members of the tribe, citing Navajo Tribe v. NLRB, supra, and Oliphant v. Suquamish   [*28]    Indian Tribe, 435 U.S. 191 (1978). n25 Unlike those cases, however, the Navajo tribe is not attempting to subject non-Indians to its laws in this case.   It is simply employing non-Indians in order to further the operations of NFPI, and it has a specific policy of replacing these non-Indians when Indians become qualified for their jobs.   Thus, the employment of non-Indians does not alter the nature of NFPI as a tribal enterprise dedicated to furthering the tribe's governmental objectives.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n25 In Oliphant v. Suquamish Indian Tribe, supra, the Court held that non-Indians cannot be subjected to Indian criminal jurisdiction for activities occurring on a reservation.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In summary, we conclude that NFPI, as an enterprise established and operated by the tribe within the reservation, represents an exercise of the Navajo tribe's sovereignty. Because we have also decided that the Act does not abrogate the tribe's rights under the Treaty, and therefore cannot be applied in a manner that would detract from the tribe's [*29]   sovereignty, we conclude that NFPI is not subject to the Act.

Accordingly, the judge's decision is affirmed.   SO ORDERED.