2011-1391. Iipay Nation of Santa Ysabel Liquor Control Law

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes Liquor Control Law No. LB-06-08 of the Iipay Nation of Santa Ysabel (Nation). The Liquor Control Law regulates and controls the possession, sale, and consumption of liquor within the tribal lands. The tribal lands are located in Indian country and this Liquor Control Law allows for possession and sale of alcoholic beverages within their boundaries. The Liquor Control Law contains provisions requiring the Nation to issue licenses to all businesses that intend to sell liquor. This Liquor Control Law will increase the ability of the tribal government to control the Nation's liquor distribution and possession, and at the same time will provide an important source of revenue for the continued operation and strengthening of the tribal government and the delivery of tribal services.

DATES:

Effective Date: This Liquor Control Law is effective on January 25, 2011.

FOR FURTHER INFORMATION CONTACT:

Fred Doka, Tribal Government Services Officer, Pacific Regional Office, 2800 Cottage Way, Sacramento, CA 95825, Telephone [phone]; or Elizabeth Colliflower, Office of Indian Services, 1849 C Street, NW., Mail Stop 4513-MIB, Washington, DC 20240, Telephone: [phone].

SUPPLEMENTARY INFORMATION:

Pursuant to the Act of August 15, 1953, Public Law 83-277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in Rice v. Rehner, 463 U.S. 713 (1983), the Secretary of the Interior shall certify and publish in the Federal Register notice of adopted liquor ordinances for the purpose of regulating liquor transactions in Indian country. The Legislature of the Nation adopted Bill No. LB 06-08, Liquor Control Law, on October 8, 2008. The purpose of the Liquor Control Law is to govern the distribution, possession, consumption and sale of liquor within tribal lands of the Nation.

This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs. I certify that the Legislature of the Iipay Nation of Santa Ysabel adopted its Liquor Control Law, LB 06-08, on October 8, 2008.

Dated: January 11, 2011.

Larry Echo Hawk,

Assistant Secretary—Indian Affairs.

The Liquor Control Law of the Iipay Nation of Santa Ysabel reads as follows:

LIQUOR CONTROL LAW

ARTICLE I—TITLE.

Section 1.1. This law shall be referred to as the “Liquor Control Law” or the “Liquor Control Ordinance” (“Ordinance”).

ARTICLE II—FINDINGS.

Section 2.1. The Legislature finds:

(a) The Iipay Nation of Santa Ysabel (“Nation”) owns and operates the new Santa Ysabel Resort and Casino (“Casino”) within the Territory of the Nation; and,

(b) The sale of alcoholic beverages at the Casino provides an amenity to the customers of the Casino and directly impacts the overall financial success of the Casino.

ARTICLE III—DECLARATION OF PUBLIC POLICY AND PURPOSE.

Section 3.1. The distribution, possession, consumption and sale of liquor on the Santa Ysabel Indian Reservation (“Reservation”) is a matter of special concern to the Nation.

Section 3.2. Federal law, as codified at 18 U.S.C. 1154, 1161, currently prohibits the introduction of liquor into Indian country, except in accordance with State Law and the duly enacted law of the Nation. By adoption of this Ordinance, it is the intention of the Legislature to establish a law regulating the sale, distribution and consumption of Liquor and to ensure that such activity conforms with all applicable provisions of the laws of the State of California and all applicable Federal laws.

Section 3.3. The Legislature, as the legislative body of the Nation vested with legislative powers, has the authority pursuant to Article V, Section 2 of the Constitution of the Nation (“Constitution”) to administer the Nation's assets and manage all economic affairs and enterprises of the Nation, as well as has the inherent right to enact ordinances and laws to safeguard and provide for the health, safety and welfare of the Reservation Community. Accordingly, the Legislature has determined that it is in the best interests of the Nation to enact a law governing the distribution, possession, consumption and sale of liquor within the exterior boundaries of the Reservation.

Section 3.4. The Legislature has determined that the purchase, distribution and sale of Liquor shall take place only at duly licensed (i) Tribally owned enterprises; (ii) Tribally-licensed establishments; and (iii) Tribally-sanctioned Special Events, all as operating on Tribal Lands.

Section 3.5. The Legislature has determined that any sale or other commercial distribution of Liquor on the Reservation, other than sales and distribution in strict compliance with this Ordinance, is detrimental to the health, safety and welfare of the members of the Nation and is therefore prohibited.

Section 3.6. Based upon the foregoing findings and determinations, the Legislature hereby enacts this Liquor Control Ordinance.

ARTICLE IV—DEFINITIONS

As used in this Ordinance, the following words shall have the following meanings, unless the context clearly requires otherwise.

Section 4.1. Alcohol. That substance known as ethyl alcohol, hydrated oxide of ethyl, or spirit of wine, which is commonly produced by the fermentation, or distillation of grain, starch, molasses or sugar, or other substances including all dilutions and mixtures of this substance.

Section 4.2. Alcoholic Beverage. Shall be defined identically in meaning to the term “liquor” as defined herein.

Section 4.3. Bar. Any establishment with special space and accommodations for sale by the glass and for consumption on the premises, of liquor, as herein defined.

Section 4.4. Beer. Any beverage obtained by the alcoholic fermentation at an infusion or concoction of pure hops, or pure extract of hops and pure barley malt or other wholesome grain or cereal in pure water containing not more than four percent (4%) of alcohol by volume. For the purpose of this title, any such beverage, including ale, stout, and porter, containing more than four percent (4%) of alcohol by weight shall be referred to as “strong beer”.

Section 4.5. Gaming Compact. The federally approved Tribal-State Compact, dated September 10, 2003, between the State of California and the Nation.

Section 4.6. Liquor. The four varieties of liquor herein defined (alcohol, spirits, wine, and beer), and all fermented spirituous, vinous, or malt liquor or combinations thereof and mixed liquor, or a part of which is fermented, spirituous, vinous, or malt liquor, or otherwise intoxicating; and every other liquid or solid or semisolid or other substance, patented or not, containing alcohol, spirits, wine or beer, and all drinks or drinkable liquids and all preparations or mixtures capable of human consumption, and any liquid, semisolid, solid, or other substances that contains more than one percent (1%) of alcohol by weight, shall be conclusively deemed to be intoxicating.

Section 4.7. Liquor Store. Any store at which liquor is sold and, for the purpose of this Ordinance, including any store only a portion of which is devoted to the sale of liquor or beer.

Section 4.8. Licensed Wholesaler. A wholesale seller of liquor that is duly licensed by the Nation and the State.

Section 4.9. Malt liquor. Beer, strong beer, ale, stout and porter.

Section 4.10. Package. Any container or receptacle used for holding liquor.

Section 4.11. Public Place. Includes gaming facilities and commercial or community facilities of every nature which are open to and/or are generally used by the public and to which the public is permitted to have unrestricted access; public conveyances of all kinds and character; and all other places of like or similar nature to which the general public has unrestricted access, and which generally are used by the public.

Section 4.12. Sale and Sell. Any exchange, barter, and traffic; and also includes the selling of or supplying or distributing, by any means whatsoever, of liquor, or of any liquid known or described as beer or by any name whatsoever commonly used to describe malt or brewed liquor, or of wine, by any person to any person.

Section 4.13. Special Event. Any social, charitable or for-profit discreet activity or event conducted by the Nation or any enterprise on Tribal Lands at which Liquor is sold or proposed to be sold.

Section 4.14. Spirits. Any beverage, which contains alcohol obtained by distillation, including wines exceeding seventeen percent (17%) of alcohol by weight.

Section 4.15. State Law. The duly enacted applicable laws and regulations of the State of California, specifically, Division 9—Alcoholic Beverages, as set forth at California Business and Professions Code Division 9, Sections 23000 through 25762, as amended from time to time, and all applicable provisions of the Compact.

Section 4.16. Legislature. The legislative body of the Nation as defined in the Constitution.

Section 4.17. Nation. Means or refers to the Iipay Nation of Santa Ysabel, a federally recognized Indian tribe.

Section 4.18. Tribal Enterprise. Any business entity, operation or enterprise owned, in whole or in part, by the Nation.

Section 4.19. Tribal Land. All land within the exterior boundaries of the Santa Ysabel Indian Reservation that is held in trust by the United States for the benefit of the Tribe.

Section 4.20. Wine. Any alcoholic beverage obtained by fermentation of any fruits (grapes, berries, apples, etc.), or fruit juice, and containing not more than seventeen percent (17%) of alcohol by weight, including sweet wines fortified with wine spirits, such as port, sherry, muscatel and angelica, not exceeding seventeen percent (17%) of alcohol by weight.

ARTICLE V—ENFORCEMENT

Section 5.1. Executive Powers. The Chairman of the Nation, as the official vested with the executive powers of the Nation under the Article VI, Section 2 of the Constitution and/or his designee(s), in furtherance of this Ordinance, shall have the power and duty to:

(a) Publish and enforce such rules and regulations governing the purchase, sale, consumption and distribution of alcoholic beverages in public places on the Santa Ysabel Indian Reservation as the Chairman deems necessary.

(b) Employ managers, accountants, security personnel, inspectors and such other persons as shall be reasonably necessary to allow the Chairman or his designee(s) to exercise the authority as set forth in this Ordinance.

(c) Issue licenses permitting the sale and/or distribution of Liquor on the Santa Ysabel Indian Reservation.

(d) Hold hearings on violations of this Ordinance or for the issuance or revocation of licenses hereunder;

(e) Bring suit in the appropriate court to enforce this Ordinance as necessary;

(f) Determine and seek damages for violation of this Ordinance;

(g) Publish notices and, in the case of any Chairman designee(s), make such reports to the Legislature as may be appropriate;

(h) Collect sales taxes and fees levied or set by the Chairman on liquor sales and the issuance of liquor licenses, and to keep accurate records, books and accounts;

(i) Take or facilitate all action necessary to follow or implement applicable provisions of State Law as required;

(j) Cooperate with appropriate State of California authorities for purposes of prosecution of any violation of any criminal law of the State of California; and

(k) Exercise such other powers as may be necessary and appropriate, and in the case of any Chairman designee(s), delegated from time to time by the Chairman, to implement and enforce this Ordinance.

Section 5.2. Limitation on Powers. In the exercise of his powers and duties under this Ordinance, the Chairman, his designee(s), and their employees and agents shall not:

(a) Accept any gratuity, compensation or other thing of value from any liquor wholesaler, retailer or distributor, or from any licensee; or

(b) Waive the immunity of the Tribe from suit except by express law enacted by the Legislature, such waiver being subject to the following limitations: the waiver must be transaction specific, limited as to scope, duration and beneficiary, include a provision that limits recourse only to specified assets or revenues of the Nation or the Nation's entity, and specify the process and venue for dispute resolution, including applicable law.

Section 5.3. Inspection Rights. The public places on or within which liquor is sold or distributed shall be open for inspection by the Chairman or his designee(s) at all reasonable times for the purposes of ascertaining compliance with this Ordinance and other regulations promulgated pursuant hereto.

ARTICLE VI—LIQUOR SALES

Section 6.1. License Required. No distribution or sales of Liquor shall be made on or within public places within the exterior boundaries of the Santa Ysabel Indian Reservation, except at a duly licensed and authorized Special Event, a Tribal Enterprise, Bar, or Liquor Store located on Tribal Lands.

Section 6.2. Sale only on Tribal Land. All liquor sales within the exterior boundaries of the Reservation shall be on Tribal Land, including leases thereon.

Section 6.3. Sales for Cash. All liquor sales within the Reservation boundaries shall be on a cash only basis and no credit shall be extended to any person, organization or entity, except that this provision does not prevent the payment for purchases with the use of cashiers or personal checks, payroll checks, debit credit cards or credit cards issued by any financial institution.

Section 6.4. Sale For Personal Consumption. Except for sales by Licensed Wholesalers, all sales shall be for the personal use and consumption of the purchaser or members of the purchaser's household, including guests, who are over the age of twenty-one (21). Resale of any alcoholic beverage purchased within the exterior boundaries of the Reservation is prohibited. Any person who is not licensed pursuant to this Ordinance who purchases an alcoholic beverage within the boundaries of the Reservation and re-sells it, whether in the original container or not, shall be guilty of a violation of this Ordinance and shall be subject to exclusion from the Reservation or liability for money damages of up to five hundred dollars ($500), as determined by the Chairman or his designee(s) after notice and an opportunity to be heard.

Section 6.5. Compliance Required. All distribution, sale and consumption of liquor within the Law.

ARTICLE VII—LICENSING

Section 7.1. Licensing Procedures. In order to control the proliferation of establishments on the Reservation that sell or provide liquor by the bottle or by the drink, all persons or entities that desire to sell liquor, whether wholesale or retail, within the exterior boundaries of the Santa Ysabel Indian Reservation must apply to the Chairman or his designee(s) for a license to sell or provide liquor; provided, however, that no license is necessary to provide liquor within a private single-family residence on the Reservation for which no money is requested or paid.

Section 7.2. State Licensing. In the event dual Tribal and State licenses are required by State Law, no person shall be allowed or permitted to sell or provide liquor on the Santa Ysabel Indian Reservation unless such person is also licensed by the State of California, as required, to sell or provide such liquor. If any such license from the State is revoked or suspended, any applicable license issued by the Nation shall automatically be revoked or suspended.

Section 7.3. Application. Any person applying for a license to sell or provide liquor on the Santa Ysabel Indian Reservation shall complete and submit an application provided for this purpose by the Chairman or his designee(s) and pay such application fee as may be set from time to time by the Chairman for this purpose. An incomplete application will not be considered. The Chairman shall establish licensing procedures and application forms for wholesalers, retailers and special events.

Section 7.4. Issuance of License. The Chairman or his designee may issue a license if he believes such issuance is in the best interests of the Nation, the residents of the Santa Ysabel Indian Reservation and the surrounding community. Licensure is a privilege, not a right, and the decision to issue any license rests in the sole discretion of the Chairman.

Section 7.5. Period of License. Each license may be issued for a period not to exceed two (2) years from the date of issuance.

Section 7.6. Renewal of License. A licensee may renew its license if it has complied in full with this Ordinance and has maintained its licensure with the State of California, as required; however, the Chairman or his designee may refuse to renew a license if he finds that doing so would not be in the best interests of the health and safety of the members of the Nation and the other residents of the Santa Ysabel Indian Reservation.

Section 7.7. Revocation of License. The Chairman or his designee may revoke a license for reasonable cause upon notice and hearing at which the licensee shall be given an opportunity to respond to any charges against it and, to demonstrate why the license should not be suspended or revoked.

Section 7.8. Transferability of Licenses. Licenses issued by the Chairman or his designee shall not be transferable and may only be utilized by the person or entity in whose name it was issued.

ARTICLE VIII—TAXES

Section 8.1. Sales Tax. The Chairman shall have the authority to impose a sales tax on all wholesale and retail liquor sales that take place within the Reservation. Such tax may be implemented by duly promulgated regulation issued by the Chairman or his designee pursuant to this Ordinance. Any tax imposed by authority of this Section shall apply to all retail and wholesale sales of liquor within the Reservation, and to the extent permitted by law shall preempt any tax imposed on such liquor sales by the State of California.

Section 8.2. Payment of Taxes to the Nation. All taxes imposed pursuant to this Article VIII shall be paid over to the Nation and be subject to distribution by the Legislature in accordance with its usual appropriation procedures for essential governmental functions and social services, including administration of this Ordinance.

ARTICLE IX—RULES, REGULATIONS, AND ENFORCEMENT

Section 9.1. Evidence. In any proceeding under this title, proof of one unlawful sale or distribution of liquor shall suffice to establish prima facie intent or purpose of unlawfully keeping liquor for sale, selling liquor or distributing liquor in violation of this Ordinance.

Section 9.2. Civil Violations. Any person who shall sell or offer for sale or distribute or transport in any manner any liquor in violation of this Ordinance, or who shall have liquor in his/her possession for distribution or resale without a permit, shall be guilty of a violation of this Ordinance subjecting him/her to civil damages assessed by the Chairman or his designee. Nothing in this Ordinance shall apply to the possession or transportation of any quantity of liquor by members of the Nation or other persons located within the Reservation for their personal or other noncommercial use, and the possession, transportation, sale, consumption or other disposition of liquor outside public places on the Santa Ysabel Indian Reservation shall be governed solely by the laws of the State of California.

Section 9.3. Illegal Purchases. Any person within the boundaries of the Santa Ysabel Indian Reservation who, in a public place, buys liquor from any person other than at a properly licensed facility shall be guilty of a violation of this Ordinance.

Section 9.4. Sale to Intoxicated Person. Any person who sells liquor to a person apparently under the influence of liquor shall be guilty of a violation of this Ordinance.

Section 9.5. Providing Liquor to Underage Person. No person under the age of twenty-one (21) years shall serve, consume, acquire or have in his/her possession any alcoholic beverages. Any person violating this section in a public place shall be guilty of a separate violation of this Ordinance for each and every drink so consumed.

Section 9.6. Selling Liquor to Underage Person. Any person who, in a public place, shall sell or provide any liquor to any person under the age of twenty-one (21) years shall be guilty of a violation of this Ordinance for each such sale or drink provided.

Section 9.7. Civil Penalty. Any person guilty of a violation of this Ordinance shall, be liable to pay the Nation the amount of two hundred fifty dollars ($250) per violation as civil damages to defray the Nation's cost of enforcement of this Ordinance. The payment of such damages in each case shall be determined by the Chairman or his designee based upon a preponderance of the evidence available to it after the person alleged to have violated this Ordinance has been given notice, hearing and an opportunity to respond to such allegations.

Section 9.8. Identification Requirement. Whenever it reasonably appears to a licensed purveyor of liquor that a person seeking to purchase liquor is under the age of twenty-seven (27), the prospective purchaser shall be required to present any one of the following officially issued cards of identification which shows his/her correct age and bears his/her signature and photograph:

(1) Drivers license of any state or identification card issued by any state Department of Motor Vehicles;

(2) United States Uniformed Services identification documents;

(3) Passport; or

(4) Gaming license or work permit issued by the Tribal Gaming Commission, if said license or permit contains the bearer's correct age, signature and photograph.

ARTICLE X—ABATEMENT

Section 10.1. Public Nuisance Established. Any public place where liquor is sold, manufactured, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this Ordinance, and all property kept in and used in maintaining such place, is hereby declared to be a public nuisance.

Section 10.2. Abatement of Nuisance. The Chairman shall institute and maintain an action in the Judicial Branch of the Nation, or another court of competent jurisdiction, in the name of the Nation to abate and perpetually enjoin any nuisance declared under this title. Upon establishment of probable cause to find that a nuisance exists, restraining orders, temporary injunctions and permanent injunctions may be granted in the cause as in other injunction proceedings, and upon final judgment against the defendant the court may also order the room, structure or place closed for a period of one (1) year or until the owner, lessee, tenant or occupant thereof shall give bond of sufficient sum of not less than five thousand dollars ($5,000) payable to the Nation and conditioned that liquor will not be thereafter be manufactured, kept, sold, bartered, exchanged, given away, furnished or otherwise disposed of thereof in violation of the provision of this title or of any other applicable law of the Nation, and that s/he will pay all fines, costs and damages assessed against him/her for any violation of this title or other liquor laws of the Nation. If any conditions of the bond should be violated, the whole amount may be recovered for the use of the Nation.

Section 10.3. Evidence. In all cases where any person has been found responsible for a violation of this Ordinance relating to manufacture, importation, transportation, possession, distribution or sale of liquor, an action may be brought to abate as a public nuisance the use of any real estate or other property involved in the violation of this Ordinance, and proof of violation of this Ordinance shall be prima facie evidence that the room, house, building, vehicle, structure, or place against which such action is brought, is a public nuisance.

ARTICLE XI—USE OF PROCEEDS

Section 11.1. Application of Proceeds. The gross proceeds collected by the Nation from all Licensing of the sale of alcoholic beverages within the Reservation and from fines imposed as a result of violations of this Ordinance, shall be applied as follows: (a) First, for the payment of all necessary personnel, administrative costs, and legal fees incurred in the enforcement of this Ordinance; and (b) Second, the remainder shall be turned over to the General Fund of the Nation and expended by the Legislature for governmental services and programs on the Reservation in accordance with the requirements of the Constitution.

ARTICLE XII—MISCELLANEOUS PROVISIONS

Section 12.1. Severability and Savings Clause. If any provision or application of this Ordinance is determined by judicial review to be invalid, such provision shall be deemed ineffective and void, but shall not render ineffectual the remaining portions of this Ordinance, which shall remain in full force and effect.

Section 12.2. Effective Date. This Ordinance shall be effective as of the date on which the Secretary of the Interior certifies this Ordinance and publishes the same in the Federal Register.

Section 12.3. Repeal of Prior Acts. Any and all prior resolutions, laws, regulations or ordinances pertaining to the subject matter set forth in this Ordinance are hereby rescinded and repealed in their entirety.

Section 12.4. Conformance with State Law. All acts and transactions under this Ordinance shall be in conformity with the Compact and the laws of the State of California to the extent required by 18 U.S.C. Sec. 1161 and with all Federal laws regarding alcohol in Indian Country.

ARTICLE XIII—AMENDMENTS

This Ordinance may be amended only pursuant to a law duly enacted by the Legislature with certification by the Secretary of the Interior and publication in the Federal Register, if required.

ARTICLE XIV—SOVEREIGN IMMUNITY

Nothing contained in this Ordinance is intended to nor does it in any way limit, alter, restrict, or waive the Nation's sovereign immunity from unconsented suit or action.

ARTICLE XV—SEVERABILITY

If any provision of this Act is held to be void, or unenforceable, it shall be considered deleted from this Act and the invalidity of such provision shall not affect the validity or enforceability of any other provision which shall be given effect in the absence of the invalid provision. The remaining provisions shall continue in full force and effect without being invalidated.