601 F.3d 669 (7th Cir. 2010), 09-2806, Menominee Tribal Enterprises v. Solis

Docket Nº:09-2806.
Citation:601 F.3d 669
Opinion Judge:POSNER, Circuit Judge.
Party Name:MENOMINEE TRIBAL ENTERPRISES, Petitioner, v. Hilda L. SOLIS, Secretary of Labor, Respondent.
Attorney:Glenn C. Reynolds (argued), Madison, WI, for Petitioner. Mark J. Lerner, I (argued), Department of Labor, Appellate Litigation, Washington, DC, for Respondent.
Judge Panel:Before POSNER, FLAUM and WOOD, Circuit Judges.
Case Date:March 24, 2010
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 669

601 F.3d 669 (7th Cir. 2010)

MENOMINEE TRIBAL ENTERPRISES, Petitioner,

v.

Hilda L. SOLIS, Secretary of Labor, Respondent.

No. 09-2806.

United States Court of Appeals, Seventh Circuit.

March 24, 2010

Argued Feb. 19, 2010.

Page 670

Glenn C. Reynolds (argued), Madison, WI, for Petitioner.

Mark J. Lerner, I (argued), Department of Labor, Appellate Litigation, Washington, DC, for Respondent.

Before POSNER, FLAUM and WOOD, Circuit Judges.

POSNER, Circuit Judge.

The Menominee Indian tribe owns a sawmill on its reservation in Wisconsin. The Department of Labor cited the tribe (technically the tribal entity that operates the sawmill, but it has no substantial existence apart from the tribe) for violations of OSHA, 29 U.S.C. §§ 651 et seq., rejecting the tribe's contention, renewed in this petition to review the Department's decision, that it is exempt. The Department asks us to ignore some of the arguments that the tribe makes on the ground that they were not made at the administrative level. That may be right, but they are pure issues of law, they have been briefed and argued, and for us to refuse to resolve them would simply invite future litigation between these parties. OSHA's exhaustion provision, 29 U.S.C. § 660(a), allows for exceptions, although the provision refers to " extraordinary circumstances" and so has been construed narrowly. Globe Contractors, Inc. v. Herman, 132 F.3d 367, 370-71 (7th Cir.1997); Harry C. Crooker & Sons, Inc. v. OSHRC, 537 F.3d 79, 85 (1st Cir.2008); Todd Shipyards Corp. v. Secretary of Labor, 586 F.2d 683, 688-89 (9th Cir.1978); see also Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 23-24, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974).

The Occupational Safety and Health Act contains an express exemption for the federal government (except the Postal Service) and for state and local governments, 29 U.S.C. § 652(5), but says nothing about Indian tribes. We cannot terminate this lawsuit with that observation, however (though neither can we accept the tribe's contention that since a tribe is just like a state or a local government it is within the express exemption for state and local government).

Statutes of general applicability that do not mention Indians are nevertheless usually held to apply to them. FPC v. Tuscarora Indian Nation, 362 U.S. 99, 116, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960) (" a general statute in terms applying to all persons includes Indians and their property interests" ); Smart v. State Farm Ins. Co., 868 F.2d 929, 932 (7th Cir.1989) (" general statutes ... whose concerns are widely inclusive and do not affect traditional Indian or Tribal rights" ); Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir.1985); Felix S. Cohen, Handbook of Federal Indian Law § 2.03, pp. 128-32 (2005 ed.); William Buffalo & Kevin J. Wadzinski, " Application of Federal and State Labor and Employment Laws to Indian Tribal Employers," 25 U. Memphis

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L.Rev. 1365, 1377-83 (1995); Vicki J. Limas, " Application of Federal Labor and Employment Statutes to Native American Tribes: Respecting Sovereignty and Achieving Consistency," 26 Ariz. St. L.J. 681, 694-700 (1994). But there are exceptions; a statute of general applicability will be held inapplicable to Indians if it would interfere with tribal governance, as in Reich v. Great Lakes Indian Fish & Wildlife Comm'n, 4 F.3d 490 (7th Cir.1993), where we rejected the application of the Fair Labor Standards Act to Indian game wardens. Or if it would clash with rights granted Indians by other statutes or by treaties with Indian tribes (which are the legal equivalent of federal statutes, Ward v. Race Horse, 163 U.S. 504, 510-11, 16 S.Ct. 1076, 41 L.Ed. 244 (1896); Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449, 457 (7th Cir.1998); Reich v. Great Lakes Indian Fish & Wildlife Comm'n, supra, 4 F.3d at 493; Solis v. Matheson, 563 F.3d 425, 434 (9th Cir.2009)). Morton v. Mancari, 417 U.S. 535, 550 (1974); United States v. Smiskin, 487 F.3d 1260, 1264 (9th Cir.2007); EEOC v. Cherokee Nation, 871 F.2d 937, 938 (10th Cir.1989). Or if there is persuasive evidence that Congress did not intend by its silence that the statute would apply to Indians. Taylor v. Alabama Intertribal Council Title IV J.T.P.A., 261 F.3d 1032, 1035 (11th Cir.2001) (per curiam); United States v. Jackson, 600 F.2d 1283, 1286-87 (9th Cir.1979).

The first and third of these exceptions are inapplicable. The Menominees' sawmill is just a sawmill, a commercial enterprise. And there is no indication in OSHA, or its legislative history, that the statute's silence with regard to Indian tribes meant that Congress intended that OSHA not be applicable to tribes. The second exception, however, which requires considering whether the federal statute would infringe rights granted Indian tribes by other statutes or by treaties, is potentially applicable.

By a series of treaties with the federal government made between 1831 and 1856, a reservation was created for the Menominee Indians in a Wisconsin forest. In 1908 the Bureau of Indian Affairs built a sawmill on the reservation and having done so the Bureau managed it for the benefit of the tribe. But in 1954 Congress terminated federal control over the Menominees' reservation, thus subjecting it to governance by the State of Wisconsin. As part of the termination, the sawmill was transferred to a corporation owned by the tribe. Menominee Termination Act, 25 U.S.C. §§ 891 et seq.

The period between 1943 and 1961 has been called the " termination era" by scholars of federal Indian policy. The Menominees were just one of seventy tribes and bands terminated in 1954. Cohen, supra, § 1.06, p. 95. " Under Termination, the federal government pursued a policy of ending its special relationship with Indian tribes and transferring tribal territories to the members individually or as shareholders in state chartered corporations." Bethany R. Berger, " Red: Racism and the American Indian," 56 UCLA L.Rev. 591, 641-42 (2009).

The Menominees soured on termination. They (or at least their leaders) didn't think that the Wisconsin taxes and regulations to which termination exposed the tribe and its enterprises (including the sawmill) were offset by benefits received from the state. They were also unhappy to see tribal lands pass into private ownership. So they complained to Congress, which in 1973 passed the Menominee Restoration Act, 25 U.S.C. §§ 903 et seq....

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