Menominee Tribal Enterprises v. HILDA L. SOLIS, Secretary of Labor

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2806
MENOMINEE TRIBAL ENTERPRISES,
Petitioner,
v.
HILDA L. SOLIS, Secretary of Labor,
Respondent.
Petition for Review of an Order of the
Occupational Safety and Health Review Commission.
No. 08-0404.
ARGUED FEBRUARY 19, 2010—DECIDED MARCH 24, 2010
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 sub-
stantial existence apart from the tribe) for violations of
OSHA, 29 U.S.C. §§ 651 et seq., rejecting the tribe’s conten-
tion, renewed in this petition to review the Department’s

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2 No. 09-2806
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 administra-
tive 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 litiga-
tion 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 (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 con-
tention 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 (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 con-

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No. 09-2806 3
cerns 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, “Appli-
cation of Federal and State Labor and Employment Laws
to Indian Tribal Employers,” 25 U. Memphis L. Rev. 1365,
1377-83 (1995); Vicki J. Limas, “Application of Federal
Labor and Employment Statutes to Native American
Tribes: Respecting Sovereignty and Achieving Consis-
tency,” 26 Ariz. St. L.J. 681, 694-700 (1994).
But there are exceptions; a statute of general applica-
bility will be held inapplicable to Indians if it would
interfere with tribal governance, as in Reich v. Great
Lakes Indian Fishing & 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 (1896); Menominee Indian Tribe of Wis-
consin 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);

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4 No. 09-2806
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 ap-
plicable.
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 reserva-
tion 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

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No. 09-2806 5
or as shareholders in state chartered corporations.”
Bethany R. Berger, “Red: Racism and the American In-
dian,” 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 owner-
ship. So they complained to Congress, which in 1973
passed the Menominee Restoration Act, 25 U.S.C. §§ 903
et seq. The Act restored the tribe and its property,
including the sawmill, to their status under the treaties.
25 U.S.C. §§ 903a(b), 903d; see Joseph F. Preloznik &
Steven Felsenthal, “The Menominee Struggle to Maintain
Their Tribal Assets and Protect Their Treaty Rights Fol-
lowing Termination,” 51 N. Dak. L. Rev. 53, 68-70 (1974).
The tribe negotiated the details of the restoration with
the Department of the Interior. In 1975 the results of the
negotiations, so far as pertained to the sawmill,
were embodied in the “Management Plan of Menominee
Enterprises, a Tribal Enterprise of the Menominee
Indian Tribe of Wisconsin.”
The Restoration Act had required that the Management
Plan be submitted to Congress, which would have 60 days
to pass a resolution of disapproval before the plan took
effect. 25 U.S.C. §§ 903d(a), (b). The 60 days elapsed
without either house of Congress taking any action.
The Act provides that “there are hereby reinstated all
rights and privileges of the tribe or its members under

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6 No. 09-2806
Federal treaty, statute, or otherwise which may have been
diminished or lost pursuant to” the Termination Act. 25
U.S.C. § 903a(b); see also id., §§ 903a(c), (d). But all that
we are pointed to in the treaties, or any laws, that is
contended to have exempted the sawmill from federal
regulation before the Termination Act is a provision of
the 1856 treaty that if any earlier treaty or agreement
“should prove insufficient,” the President or Congress
may “adopt such policy in the management of the affairs
of the Menominees as in [their] judgment may be most
beneficial to them.” Treaty of 1856, art. 3, §1, 11 Stat. 679.
This is permissive rather than directive—is classic
“precatory” language, see Pennhurst State School and
Hospital v. Halderman, 451 U.S. 1, 19 (1981); Perry v. Housing
Authority of City of Charleston, 664 F.2d 1210, 1217-18 and
n. 14 (4th Cir. 1981); Medellin v. Texas, 128 S. Ct. 1346, 1358-
59 (2008); Sturgis v. Paine, 16 N.E. 21 (Mass. 1888)
(Holmes, J.)—and even if directive would be too vague
to create an exemption from OSHA. U.S. Dep’t of Labor v.
OSHRC, 935 F.2d 182, 186-87 (9th Cir. 1991); see also
Smart v. State Farm Ins. Co., supra, 868 F.2d at 934-35.
With the Act unavailing, the tribe asks us to treat the
Management Plan as if it were a statute, because it was
submitted to Congress for [dis]approval. Congress can if
it wants require advance submission of regulations to it,
to make it easier for it to prohibit them. Alaska Airlines,
Inc. v. Brock, 480 U.S. 678, 689-90 (1987); INS v. Chadha,
462 U.S. 919, 935 n. 9 (1983); Sibbach v. Wilson & Co., 312
U.S. 1, 15-16 (1941); United States v. Scampini, 911 F.2d
350, 353-54 (9th Cir. 1990). But its failure to exercise its
option of prohibiting them does not make them statutes;

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No. 09-2806 7
Article I of the Constitution prescribes the exclusive
procedure for enacting federal statutes. Clinton v. City of
New York, 524 U.S. 417, 439-40 (1998); INS v. Chadha, supra,
462 U.S. at 951; Sobitan v. Glud, 589 F.3d 379, 384 (7th
Cir. 2009).
Occasionally, though, a court will treat a failure to
disapprove a submitted regulation as some evidence
of congressional approval of the regulation, Bob Jones
University v. United States, 461 U.S. 574, 600-01 (1983);
North Haven Board of Education v. Bell, 456 U.S. 512, 533-35
(1982); Federal Election Commission v. Democratic Senatorial
Campaign Committee, 454 U.S. 27, 34 (1981)—evidence
similar to that furnished by legislative history, which
federal courts still use—if with diminished enthusiasm,
BedRoc Ltd. v. United States, 541 U.S. 176, 186-87 and n. 8
(2004); Livingston Rebuild Center, Inc. v. Railroad Retirement
Board, 970 F.2d 295, 297-98 (7th Cir. 1992); Continental
Can Co. v. Chicago Truck Drivers, Helpers & Warehouse
Workers Union (Independent) Pension Fund, 916 F.2d 1154,
1157-58 (7th Cir. 1990); see also Adrian Vermeule, “Legis-
lative History and the Limits of Judicial Competence:
The Untold Story of Holy Trinity Church,” 50 Stan. L. Rev.
1833 (1998)—for help in trying to ascertain statutory
meaning. In dealing with the awkward issue of federal
regulation of Indians (awkward because of the nation’s
history of mistreatment of Indians), courts, as we said,
search for evidence of congressional forbearance
beyond what can be found in the text of treaties and
statutes.
But even if we assumed that the Management Plan
expressed the will of Congress, we could not find

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8 No. 09-2806
support for the proposition that Congress wanted to
exempt the Menominees’ sawmill from OSHA. A rider to
the plan, called the “Trust and Management Agreement,”
states that “the Secretary shall have no authority in
regard to the management of the tribal business, except
as specifically provided in this agreement”—but the
“Secretary” referred to is the Secretary of the Interior,
not the Secretary of Labor. Paragraph 4(f) of the plan
authorizes the tribal enterprise that manages the
sawmill “to make and amend reasonable rules and reg-
ulations concerning the use of the subject property.” Since
the Management Plan was to be executed by the tribal
enterprise, the enterprise needed authority to make rules
and regulations for the sawmill’s operations. That
doesn’t imply authority to preempt federal law. States
have broad regulatory authority too, but it does not
authorize them to opt out of federal statutes. A state
cannot legislate an exemption from OSHA, and neither
can a tribe.
The tribe does not argue that OSHA fails to make a
good fit with the operation of a sawmill on an Indian
reservation. On the contrary, asked at argument whether
there was anything special about a sawmill owned and
operated by an Indian enterprise that might make
OSHA unsuitable for application to such an enterprise,
the tribe’s lawyer answered no. He said that the tribe
makes every effort to comply with OSHA, that it seeks
the advice of the Occupational Safety and Health Admin-
istration, and that its objection is merely to having to
pay fines if it fails to comply. The sawmill’s output (some
$20 million worth in 2005, the latest date for which the

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No. 09-2806 9
record contains such data) is sold in interstate commerce,
in competition with sawmills owned by non-Indian
enterprises. Exempting a sawmill owned by an Indian
tribe from the obligations that OSHA imposes on its
competitors seems hardly necessary to implement the
Restoration Act or the Management Plan, let alone the
1856 treaty or any earlier treaty.
The scanty case law on the application of OSHA to
Indian tribes does not support the Menominees’ claim to
be exempt. There are four potentially relevant cases:
Reich v. Mashantucket Sand & Gravel, 95 F.3d 174, 182 (2d
Cir. 1996); U.S. Dep’t of Labor v. OSHRC, supra, 935 F.2d at
187; Donovan v. Coeur d’Alene Tribal Farm, supra, 751 F.2d at
1117-18, and Donovan v. Navajo Forest Products Industries,
692 F.2d 709, 714 (10th Cir. 1982). Only the last-cited
case rejects the exemption. In Mashantucket the tribal
enterprise employed non-Indians as well as Indians and
was primarily engaged in construction of a casino
engaged in interstate commerce. Since non-Indians are not
subject to tribal jurisdiction, the enterprise could not be
thought part of the tribe’s governance structure. Coeur
d’Alene Tribal Farm was similar: the Indian enterprise
employed non-Indians in a commercial enterprise. We
don’t have that here; but it is equally the case that
the sawmill is not part of the Menominee’s governance
structure; it is just a sawmill.
In U.S. Dep’t of Labor v. OSHRC, the question was
whether a tribal rule excluding non-Indians from the
tribe’s reservation applied to OSHA inspectors, in which
event, as a practical matter, OSHA would not be enforce-
able in the reservation. In answering “no,” the court

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10 No. 09-2806
pointed out that a “yes” answer would prevent the en-
forcement of virtually all federal laws on the reservation.
Navajo Forest Products Industries answered the same
question “yes,” but relied on a provision in a treaty
between the United States and the Navajo tribe which
stated that “the United States agrees that no persons
except those herein so authorized to do, and except such
officers, soldiers, agents and employees of the govern-
ment, 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 de-
scribed in this article.” 692 F.3d at 711. The key phrase
is “as may be authorized to enter upon Indian reserva-
tions in discharge of duties imposed by law,” and is
ambiguous. But even if it means that there must be
express statutory authority to enter a reservation, there
is nothing like that here. The only treaty that the tribe
relies on—the Treaty of 1856—states, with regard to
access to the reservation, only that “all roads and high-
ways, laid out by authority of law, shall have right of way
through the lands of the said Indians on the same terms
as are provided by law for their location through lands
of citizens of the United States.”
We conclude that the sawmill and related commercial
activities of the Menominees’ enterprise are subject to the
Occupational Safety and Health Act. The petition for
review is therefore
DENIED.
3-24-10

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