Requirements of the Occupational Safety and Health Act (OSH Act) do not apply to a business exclusively owned and operated by a Native American tribe, an administrative law judge (ALJ) ruled. The decision of an Occupational Safety and Health Review Commission (OSHRC) ALJ vacates citations and penalties issued by the Labor Department’s Occupational Safety and Health Administration (OSHA).
The review commission announced its final order on September 16.
ALJ William S. Coleman affirmed that OSHA’s enforcement actions on reservation land infringed on the Red Lake Band of Chippewa Indians’ right to exclude nonmembers from its reservation.
Drowned Fishing Crew
A boat operated by employees of Red Lake Nation Fisheries, Inc., of Redby, Minnesota, capsized on November 6, 2017, while on Lower Red Lake on the Red Lake Indian Reservation, resulting in the drowning deaths of two employees.
Red Lake Nation Fisheries, Inc., is a subsidiary of Red Lake, Inc., a company wholly owned and operated by the Red Lake Band, a federally recognized Indian tribe. Red Lake, Inc., was incorporated and operates under Red Lake Band tribal law.
The workers’ deaths were confirmed when their bodies were recovered in March 2018. An official from OSHA’s Eau Claire, Wisconsin, field office conducted an inspection on March 28, 2018. On April 26, 2018, the field office issued a serious citation and an other-than-serious citation and proposed penalties in the amount of $15,521.
The agency cited Red Lake Fisheries for a serious violation of 29 C.F.R. §1910.132(a) for failing to require employees to wear personal flotation devices. OSHA also cited the company for an other-than-serious violation for failing to report employee deaths in a timely manner.
ALJ Vacates OSHA Citations, Penalties
The ALJ ruled against the Labor Department, vacating their citations and proposed penalties. The judge agreed with the employer’s arguments that the Red Lake Band has a right to self-governance, including the regulation of workplace safety and health; and the tribe has an inherent right to exclude nonmembers from the reservation. Coleman concluded that:
- Application of the federal OSH Act for tribal employers would require clear congressional intent to do so, and
- There is nothing either in the statute or its legislative history to demonstrate Congress intended the OSH Act to apply to tribal enterprises.
The review commission has vacated other OSHA citations issued to tribal businesses, concluding the OSH Act does not apply. Federal appeals courts also have ruled that certain federal statutes, including laws against age discrimination, do not apply to tribal businesses.
The Red Lake Tribal Council is the sole owner of the shares of Red Lake, Inc., which controls the subsidiary, Red Lake Nation Fisheries. The company harvests wild-caught fish from waters on the reservation and processes the fish into fish products that it sells to the general public nationwide.
Fish products are sold by telephone and through a public website, as well as a physical location on the reservation.
All fish harvesting and processing are conducted within the boundaries of the Red Lake Indian Reservation. The company employs only members of the Red Lake Band.