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OSHA Commission upholds Mohawk treaty rights

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Sometimes a good decision on native sovereignty and treaty rights comes from an unlikely case.

Recently the St. Regis (Akwesasne) Mohawk Tribe challenged the right of investigators from the Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor to conduct inspections at the tribe's Akwesasne Mohawk Casino. The U.S. District Court in Northern New York approved a warrant for OSHA investigators to inspect the gaming enterprise. They found some OSHA code violations.

As a member of the Six Nations or Iroquois Confederacy, the Mohawks argued to the U.S. Occupational Safety and Health Review Commission that applying the federal OSHA Act of 1970 "abrogated rights guaranteed" by treaties between them and the United States. They relied on a framework for analysis held in a 1996 case that "a federal statute will not apply to [Indians] ... if ? the application of the law to the tribe would abrogate rights guaranteed by Indian treaties."

The Mohawks argued that unlike other treaty cases, where treaties may not have been specific enough, the treaties they invoked, the 1784 Treaty of Fort Stanwix and the 1794 treaty of Canandaigua, contained language that was specific to their contention that their management of their own enterprises on tribal land was protected.

The Commission agreed with the Mohawk argument. It has issued an "ORDER" concluding "the application of the OSHA Act of 1970 in fact 'abrogated rights guaranteed by treaties.'" In an unusually well reasoned reading of applicable treaties and case law, the Commission also concluded that the federal government had no "subject matter jurisdiction" in the case.

The Commission reviewed other Indian cases where OSHA has been applied. But it found that the treaties invoked by the Mohawks under their Six Nations status had more specific language that pertained directly to the case. In decisions stemming from Navajo cases, treaty language was deemed insufficiently protective of the Indian use of Indian land. The language of the two treaties cited by the Mohawks and the expressed treaty rights, says the Commission, "are far-reaching in comparison to those at issue in Navajo Products and Warm Springs, supra. The treaties at issue here go further than assuring the Six Nations' interest in their lands but they also promised unbridled control over how that land is used."

So it is that Mohawks today can say Ni?weh (thank you) to their ancestors, for the wisdom of their forethought in the exercise of their sovereignty. The Treaty of Fort Stanwix of 1784, after describing the geographical boundaries of "the lands of the Six Nations," provided that the Indians, "shall be secured in the peaceful possession of the lands ..."

The Treaty of Canandaigua stated that, "The United States will never claim the same nor disturb them or either of the Six Nations, nor their Indian friends residing thereon and united with them in the free use and enjoyment thereof: but the said reservations shall remain theirs, until they choose to sell the same to the people of the United States ..."

Stated the Commission, under the signature of Judge Michael H. Schoenfeld: "In essence, the treaties vowed that the United States would leave the Six Nations alone regarding their activities on their own lands. In this regard, the fact that the Casino is a tribal, not an individual, enterprise sways heavily in their favor. The solemn promises of 1784 and 1794 are paramount to the 1970 goals of the Act."

This is very strong and welcome language. It is also a serious lesson for all Indian people on the nature of language in any and all legal documents forged with other governments. Sovereignty not explicitly given up is sovereignty retained. The tribal nations have to give it up to lose it. Even military conquest, coercion, oppression or occupation, do not obliterate Indian title and governance over Indian country lands. "... [H]ere," said the Commission, "the sought-after application of federal law would serve to abrogate rights specifically promised by treaty."

For any American Indian government so protected by treaty, and in particular for the Six Nations, the appropriate reasoning and strong language from the OSHA Review Commission is particularly welcome. It is an excellent principal to invoke.