Are Indian reservations covered by the Occupational Safety and Health
Act of 1970? The answer is a resounding "maybe," depending upon the
interpretations of the circuit courts:
"There is a split of authority as to whether federal employment
statutes of general applicability apply to Indian tribes as employers.
Both Title VII and the Americans with Disabilities Act, which
prohibits discrimination on the basis of disability, specifically
exclude Indian tribes from the definitions of 'employers' subject to
the Acts at all. As to other statutes, the Tenth Circuit and the
Eighth Circuit have taken an approach that is largely deferential to
tribal sovereignty and self-governance, and have required a showing of
clear legislative intent to curtail tribal rights and hold such
statutes applicable to tribes. Under this approach, courts have held
that the Occupational Safety and Health Act ('OSHA') and the Age
Discrimination in Employment Act ('ADEA') do not apply to tribes. In
contrast, the Ninth Circuit and the Seventh Circuit have followed an
approach which creates a presumption that statutes of general
applicability apply to Indian tribes unless a contrary showing is
made. Under this approach, courts have held that OSHA, the Employment
Retirement Income Security Act ('ERISA'), and the Fair Labor Standards
Act ('FLSA') apply to Indian tribes. Under either approach, the
specific circumstances at issue and any applicable treaties must be
considered. Employers doing business with Indian tribes should be
cognizant of the possibility that tribes may not be subject to these
or certain other federal employment-related acts, regardless of their
applicability to private employers."
Modrall Sperling: Employment Law on Indian Land
http://www.modrall.com/articles/article_33.html
"The circuits are split regarding the application of federal
regulatory employment laws to tribal employers. The Tenth and Eight
Circuits have refused to apply to tribes such laws as the Occupational
Safety and Health Act (OSHA), the Employee Retirement Income Security
Act (ERISA), the Fair Labor Standards Act (FLSA), and the National
Labor Relations Act (NLRA), because doing so would encroach upon
well-established principles of tribal sovereignty and tribal
self-governance.
Conversely, the Ninth, Seventh and Second Circuits have applied OSHA
and ERISA to tribes, and the Seventh Circuit leans toward application
of FLSA to tribes, reasoning that such statutes of general
applicability govern tribal employment activity because Indian tribes
are not explicitly exempted from the laws. Nevertheless, state labor
laws and workers' compensation statutes remain inapplicable to tribal
businesses."
Holland & Hart Indian Law: Reservations of Right, A Practitioner's
Guide to Indian Law
http://www.hhindianlaw.com/ReservationsofRight.htm
"The Occupational Safety and Health Act (OSHA) is a statute of general
applicability designed to 'assure so far as possible every working man
and woman in the Nation safe and healthful working conditions and to
preserve our human resources.' Current OSHA regulations expressly
adopt the Tuscarora approach, stating that: 'It is well settled that
under statutes of general applicability, such as [OSHA], Indians are
treated as any other person, unless Congress expressly provided for
special treatment.'
The 9th Circuit had to decide whether to embrace the Tuscarora
approach in a dispute over the application of the OSHA in the case of
Donovan v. Coeur d'Alene Tribal Farm....The court starts with the
premise that 'Indian tribes possess only a limited sovereignty that is
subject to complete defeasance.' It goes on to adopt the Tuscarora
approach as the general rule while at the same time recognizing it as
dictum. The court takes one step further by announcing exceptions to
the Tuscarora approach. It holds that a statute of general
applicability will apply to tribes unless:
(1) the law touches 'exclusive rights of self-governance in purely
intramural matters'; (2) the application of the law to the tribe would
'abrogate rights guaranteed by Indians' treaties'; or (3) there is
proof 'by legislative history or some other means that Congress
intended [the law] not to apply to Indians on their reservations.' In
any of these three situations, Congress must expressly apply a statute
to Indians before we will hold that it reaches them.... In sum,
similar to the antidiscrimination cases, federal courts have found
that OSHA will apply to tribal businesses, regardless of where the
business is located. Coeur d'Alene, Dept. of Labor and Reich each
involved tribal businesses engaged in work that is inherently
dangerous, so it is not surprising the courts would rule that OSHA did
not apply. What is not clear is whether it would reach the same
conclusion for a different type of business, organization or tribal
governmental entity."
Washington State Bar Association: The 9th Circuit Approach to Applying
Federal Labor and Employment Law to Indian Tribes
http://www.wsba.org/barnews/2002/11/conrad.htm
My search strategy:
Google Web Search: 'federal' + 'osha' + 'indian reservations'
://www.google.com/search?hl=en&ie=UTF-8&oe=UTF-8&q=federal+osha+%22indian+reservations
Lawcrawler search: 'indian reservations' + 'osha"
http://lawcrawler.findlaw.com/scripts/lc.pl?entry=%22indian+reservations%22+osha&sites=wlegal
Please keep in mind that Google Answers is not a source of
authoritative legal advice; the above is for informational purposes
only, and should not be regarded as a substitute for qualified legal
counsel. If anything is unclear, or if any of the links do not
function, please request clarification before rating my answer; I'll
gladly offer further assistance.
Best regards,
pinkfreud |
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