Tribal businesses are not subject to the Occupational Safety and Health Act, an administrative law judge held in a final Occupational Safety and Health Review Commission decision released Tuesday.

In Secretary of Labor v. Red Lake Nation Fisheries Inc., the administrative judge dismissed citations levied against a fishery after two of its workers drowned, finding that the 8th U.S. Circuit Court of Appeals in St. Paul, Minnesota, had previously held that the U.S. Secretary of Labor does not have the authority to enter tribal lands to inspect a workplace.

Red Lake Nation Fisheries Inc., based in Redby, Minnesota, is owned and operated by federally recognized Indian tribe the Red Lake Band of Chippewa Indians. The company harvests wild-caught fish from waters on the tribe’s reservation on Lower Red Lake, then processes the fish and sells to the general public.

In November 2017, two of its employees drowned, but their deaths were not confirmed until their bodies were recovered in March 2018. A Wisconsin U.S. Occupational Safety and Health Administration inspector investigated the worksite and cited the company with one serious citation for failing to require employees to wear personal flotation devices and one other-than-serious citation for failure to timely report the deaths. 

Red Lake contested the citations on the grounds the OSH Act does not give the government the authority to regulate conditions of workplace health and safety of a tribal company, or allow an inspector to enter the reservation.

The administrative judge vacated the penalties and the citations. The judge held that since the OSH Act is silent on its applicability to Indian tribes, and given that both the 8th and 9th U.S. Circuit Courts of Appeal have found that tribes have “the inherent sovereign right to regulate the health and safety of workers in tribal enterprises,” and that Red Lake was entitled to judgment as a matter of law on the grounds that enforcing the OSH Act would “impermissibly infringe on the Red Lake Band’s inherent right to exclude non-members from its reservation.”