[Federal Register Volume 63, Number 6 (Friday, January 9, 1998)]
[Notices]
[Pages 1492-1495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-694]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Liquor Control Ordinance of the Prairie Band of Potawatomi
Reservation
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
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SUMMARY: This Notice is published in accordance with authority
delegated by the Secretary of the Interior to the Assistant Secretary--
Indian Affairs by 209 DM8, and in accordance with the Act of August 15,
1953, 67 Stat. 586, 18 U.S.C. 1161. I certify that Resolution numbered
PBP-97-52, Liquor Control Ordinance of the Prairie Band of Potawatomi
Reservation, was duly adopted by the Prairie Band of Potawatomi Tribal
Council on October 31, 1997. The Ordinance provides for the regulation
of the activities of the manufacture, distribution, sale, and
consumption of liquor on reservation lands subject to the jurisdiction
of the Prairie Band of Potawatomi
DATES: This Ordinance is effective January 9, 1998.
FOR FURTHER INFORMATION CONTACT: Bettie Rushing, Office of Tribal
Services, 1849 C Street, NW, MS 4641-MIB, Washington, D.C. 20240-4001;
telephone (202) 208-4400.
SUPPLEMENTAL INFORMATION: The Prairie Band of Potawatomi Tribal Council
resolution numbered PBP-97-52 read as follows:
Liquor Control Ordinance of the Prairie Band of Potawatomi Reservation
Introduction
Title. This ordinance shall be known as the ``Prairie Band
Potawatomi Liquor Ordinance.''
Authority. This ordinance is enacted pursuant to the Act of August
15, 1953, 67 Stat. 586, codified at 18 U.S.C. 1161, by the authority of
the Prairie Band of Potawatomi Indian Tribal Council under The
Constitution and Bylaws of the Prairie Band of Potawatomi Indians,
Article V, Sections 1(g) and (I).
Purpose. The purpose of this ordinance is to regulate and control
the possession and sale of liquor within the Prairie Band of Potawatomi
Reservation. The enactment of a tribal ordinance governing liquor
possession and sale on the Prairie Band of Potawatomi Reservation will
increase the ability of the tribal government to control the sale,
distribution and possession of liquor and will provide an important
source of revenue for the continued operation and strengthening of the
tribal government and the delivery of tribal government services.
Effective date. This ordinance shall be effective on certification
by the Secretary of the Interior and its publication in the Federal
Register.
Article I. Declaration of Public Policy and Purpose.
(1) The introduction, possession, and sale of liquor on the Prairie
Band of Potawatomi Reservation is a matter of special concern to the
Prairie Band of Potawatomi.
(2) Federal Law currently prohibits the introduction of liquor into
Indian Country (18 U.S.C. 1154 and other statutes), except as provided
therein and expressly delegates to the tribes the decision regarding
when and to what extent liquor transactions shall be permitted (18
U.S.C. 1161).
(3) The Prairie Band of Potawatomi Tribal Council finds that a
complete ban on liquor within the Prairie Band of Potawatomi
Reservation is ineffective and unrealistic. However, it recognizes that
a need still exists for strict regulation and control over liquor
transactions within the Prairie Band of Potawatomi Reservation, because
of the many potential problems associated with the unregulated or
inadequately regulated sale, possession, distribution, and consumption
of liquor. The Prairie Band of Potawatomi Tribal Council finds that
exclusive tribal control and regulation of liquor is necessary to
achieve maximum economic benefit to the Tribe, to protect the health
and welfare of tribal members, and to address specific concerns
relating to alcohol use on the Prairie Band of Potawatomi Reservation.
[[Page 1493]]
(4) It is in the best interests of the Tribe to enact a tribal
ordinance governing liquor sales on the Prairie Band of Potawatomi
Reservation and which provides for exclusive purchase, distribution,
and sale of liquor only on tribal lands within the exterior boundaries
of the Prairie Band of Potawatomi Reservation. Further, the Tribe has
determined that said purchase, distribution, and sale shall take place
only at a tribally-owned gaming facility complex.
Article II. Definitions.
(1) As used in the title, the following words shall have the
following meaning unless the context clearly requires otherwise:
(a) Alcohol means that substance known as ethyl alcohol, hydrated
oxide of ethyl, alcohol, hydrated oxide of ethyl, ethanol, or spirits
of wine, from whatever source or by whatever process produced.
(b) Alcoholic Beverage is synonymous with the term liquor as
defined in Article II(f) of this Chapter.
(c) Bar means any establishment with special space and
accommodations for the sale of liquor by the glass and for consumption
on the premises as herein defined.
(d) Beer means any beverage obtained by the alcoholic fermentation
of an infusion or decoction of pure hops, or pure extract of hops and
pure barley malt or other wholesome grain or cereal in pure water and
containing the percent of alcohol by volume subject to regulation as an
intoxicating beverage in the state where the beverage is located.
(e) Tribal Council means the governing body of the Prairie Band of
Potawatomi Indians.
(f) Liquor includes all fermented, spirituous, vinous, or malt
liquor or combinations thereof, and mixed liquor, a part of which is
fermented, and every liquid or solid or semisolid or other substance,
patented or not, containing distilled or rectified spirits, potable
alcohol, beer, wine, brandy, whiskey, rum, gin aromatic bitters, and
all drinks or drinkable liquids and all preparations or mixtures
capable of human consumption and any liquid, semisolid, solid, or other
substances, which contains more than one half of one percent of
alcohol.
(g) Liquor Store means any store at which liquor is sold and, for
the purpose of this ordinance, including stores only a portion of which
are devoted to sale of liquor or beer.
(h) Malt Liquor means beer, strong beer, ale, stout and porter.
(i) Package means any container or receptacle used for holding
liquor.
(j) Public Place includes state or county or tribal or federal
highways or roads; buildings and grounds used for school purposes;
public dance halls and grounds adjacent thereto; soft drink
establishments, public buildings, public meeting halls, lobbies, halls
and dining room of hotels, restaurants, theaters, gaming facilities,
entertainment centers, stores, garages, and filling stations 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 right of access, and which
are generally used by the public.
(k) Sale and Sell include exchange, barter and traffic, and also
include the selling or supplying or distributing, by and 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.
(l) Spirits means any beverage which contains alcohol obtained by
distillation, including wines exceeding seventeen percent of alcohol by
weight.
(m) Wine means any alcoholic beverage obtained by fermentation of
the natural contents of fruits, vegetables, honey, milk or other
products containing sugar, whether or not other ingredients are added,
to which any saccharine substances may have been added before, during
or after fermentation, and containing not more than seventeen percent
of alcohol by weight, including sweet wines fortified with wine
spirits, such as port, sherry, muscatel and angelica, not exceeding
seventeen percent of alcohol by weight.
(n) Prairie Band of Potawatomi Indians General Council means the
general council of the Prairie Band of Potawatomi Indians which is
composed of the voting membership of the Tribe.
(o) Prairie Band of Potawatomi Reservation means all lands which
are within the exterior boundaries of the eleven mile square of
territory, which is recognized by the federal government as the Prairie
Band of Potawatomi Indian Reservation.
(p) Tribal Court means the Prairie Band of Potawatomi Tribal Court.
Article III. Powers of Enforcement
(1) Prairie Band of Potawatomi Tribal Council. In furtherance of
this ordinance, the Tribal Council shall have the following powers and
duties:
(a) To publish and enforce rules and regulations adopted by the
Tribal Council governing the sale, manufacture, distribution, and
possession of alcoholic beverages on the Prairie Band of Potawatomi
Indian Reservation;
(b) To employ managers, accountants, security personnel, inspectors
and such other persons as shall be reasonably necessary to allow the
Tribal Council to perform its function. Such employees shall be tribal
employees;
(c) To issue licenses permitting the sale or manufacture or
distribution of liquor on the Prairie Band of Potawatomi Reservation.
(d) To hold hearings on violations of this ordinance or for the
issuance or revocation of licenses hereunder;
(e) To bring suit in the Tribal Court or other appropriate court to
enforce this ordinance as necessary;
(f) To determine and seek damages for violation of the ordinance;
(g) To makes such reports as may be required by the Prairie Band of
Potawatomi Tribal Council; and
(h) To collect taxes and fees levied or set by the Prairie Band of
Potawatomi Tribal Council and to keep accurate records, books and
accounts.
(2) Limitation on Powers. In the exercise of its powers and duties
under this ordinance, the Tribal Council and its individual members
shall not:
(a) Accept any gratuity, compensation or other thing of value from
any liquor wholesaler, retailer, or distributor or from any licensee;
(b) Waive the immunity of the Prairie Band of Potawatomi from suit
without the express written consent and resolution of the Tribal
Council.
(3) Inspection Rights. The premises on which liquor is sold or
distributed shall be open for inspection by the Tribal Council at all
reasonable times for the purposes of ascertaining whether the rules and
regulations of the Tribal Council and this ordinance are being complied
with.
Article IV. Sales of Liquor
(1) License Required. Sales of liquor and alcoholic beverages on
Prairie Band of Potawatomi Reservation may only be made at businesses
which hold a Prairie Band of Potawatomi Liquor License.
(2) Sales for Cash. All liquor sales on the Prairie Band of
Reservation shall be on a cash only basis and no credit shall be
extended to any person, organization, or entity, except that the
provision does not prevent the payment for purchases with use of credit
cards such as Visa, MasterCard, American Express, etc.
(3) Sale for Personal Consumption. All sales shall be for the
personal use and consumption of the purchaser. Resale of any alcoholic
beverage on the Prairie Band of Potawatomi Reservation is prohibited.
Any person who is not
[[Page 1494]]
licensed pursuant to this ordinance who purchases an alcoholic beverage
on the Prairie Band of Potawatomi Reservation and sells it, whether in
the original container or not, shall be guilty of a violation of this
ordinance and shall be subjected to paying damages to the Prairie Band
of Potawatomi Indians as set forth herein.
(4) Other Licenses. In addition to or in lieu of the license
otherwise provided by this ordinance, a retailer of alcoholic beverages
may also be licensed under this ordinance to make sales of alcoholic
beverages in the same manner (a) as allowed by Kansas law in the state
of Kansas for similar Class A or B clubs or (b) as allowed by Kansas
law outside of the Prairie Band of Potawatomi Reservation and in
Jackson County, Kansas. Under no circumstances will any retailer be
required to comply with any state or county laws, rules or regulations
which are inapplicable for any reason or which are preempted by or in
violation of federal law.
Article V. Licensing
(1) Procedure. In order to control the proliferation of
establishments on the Prairie Band of Potawatomi Reservation which sell
or serve liquor by the bottle or by the drink, all persons or entities
which desire to sell liquor on the Prairie Band of Potawatomi
Reservation must apply to the Prairie Band of Potawatomi Indians for a
license to sell or serve liquor.
(2) Application. Any person or entity applying for a license to
sell or serve liquor on the Prairie Band of Potawatomi Reservation must
fill in the application provided for this purpose by the Prairie Band
of Potawatomi Indians and pay such application fee as may be set from
time to time by the Tribal Council for this purpose. Said application
must be filled out completely in order to be considered.
(3) Issuance of License. The Tribal Council may issue a license if
it believes that such issuance is in the best interests of the Prairie
Band of Potawatomi Indians. The purpose of this ordinance is to permit
liquor sales and consumption at the casino or casino-hotel facilities
located on the Prairie Band of Potawatomi Reservation. Issuance of a
license for any other purposes will not be considered to be in the best
interests of the Prairie Band of Potawatomi Indians.
(4) Period of License. Each license may be issued for a period not
to exceed two (2) years from the date of issuance.
(5) Renewal of License. A licensee may renew its license if the
licensee has complied in full with this ordinance provided however,
that the Tribal Council may refuse to renew a license if it finds that
doing so would not be in the best interests of the health and safety of
the Prairie Band of Potawatomi Indians.
(6) Revocation of License. The Tribal Council may suspend or revoke
a license due to one or more violations of this ordinance upon notice
and hearing at which the licensee is given an opportunity to respond to
any charges against it and to demonstrate why the license should not be
suspended or revoked.
(7) Hearings. Within 15 days after a licensee is mailed written
notice of a proposed suspension or revocation of the license, of the
imposition of fines or of other adverse action proposed by the Tribal
Council under this ordinance, the licensee may deliver to the Tribal
Council a written request for hearing on whether the proposed action
should taken. A hearing on the issues shall be held before a person or
persons appointed by the Tribal Council and a written decision will be
issued. Such decisions will be considered final unless an appeal is
filed with the Tribal Court within 15 days of the date of mailing the
decision to the licensee. The Tribal Court will then conduct a hearing
and will issue an order, which is final with no further right of
appeal. All proceedings conducted under this and any other sections of
this ordinance shall be in accord with due process of law.
(8) Non-transferability of Licenses. Licenses issued by the Tribal
Council shall not be transferable and may only be utilized by the
person or entity in whose name it was issued.
Article VI. Taxes
(1) Sales Tax. The Tribal Council shall have the authority, as may
subsequently be specified under tribal law, to levy and to collect a
tax on each retail sale of alcoholic beverage on the Prairie Band of
Potawatomi Reservation based upon a percent of the retail sales price.
All taxes from the sale of alcoholic beverages on the Prairie Band of
Potawatomi Reservation shall be paid over to the General Treasury of
the Prairie Band of Potawatomi Indians.
(2) Taxes Due. All taxes for the sale of liquor and alcoholic
beverages on the Prairie Band of Potawatomi Reservation are due on the
15th day of the month following the end of the calendar quarter for
which the taxes are due.
(3) Delinquent Taxes. Past due taxes shall accrue interest at 2%
per month.
(4) Reports. Along with payment of the taxes imposed herein, the
taxpayer shall submit a quarterly accounting of all income from the
sale or distribution of liquor, as well as for the taxes collected.
(5) Audit. As a condition of obtaining a license, the licensee must
agree to the review or audit of its book and records relating to the
sale of liquor and alcoholic beverages on the Prairie Band of
Potawatomi Reservation. Said review or audit may be done periodically
by the Tribe or through its agents or employees whenever, in the
opinion of the Tribal Council, such a review or audit is necessary to
verify the accuracy of reports.
Article VII. Rules, Regulations and Enforcement
(1) In any proceeding under this ordinance, conviction of one
unlawful sale or distribution of liquor shall establish prima facie
intent of unlawfully keeping liquor for sale, selling liquor or
distributing liquor in violation of this ordinance.
(2) Any person who shall in any manner sell or offer for sale or
distribute or transport liquor in violation of this ordinance shall be
subject to civil damages assessed by the Tribal Council.
(3) Any person within the boundaries of the Prairie Band of
Potawatomi Reservation who buys liquor from any person other than a
properly licensed facility shall be guilty of a violation of this
ordinance.
(4) Any person who keeps or possesses liquor upon his person or in
any place or on premises conducted or maintained by his principal or
agent with the intent to sell or distribute it contrary to the
provisions of this title, shall be guilty of a violation of this
ordinance.
(5) Any person who knowingly sells liquor to a person under the
influence of liquor shall be guilty of a violation of this ordinance.
(6) Any person engaged wholly or in part in the business of
carrying passengers for hire, and every agent, servant, or employee of
such person, who shall knowingly permit any person to drink liquor in
any public conveyance shall be guilty of an offense. Any person who
shall drink liquor in a public conveyance shall be guilty of a
violation of this ordinance.
(7) No person under the age of 21 years shall consume, acquire or
have in his possession any liquor or alcoholic beverage. No person
shall permit any other person under the age of 21 to consume liquor on
his premises or any premises under his control except in those
situations set out in this section. Any person violating this section
shall be guilty of a separate violation of this ordinance for each and
every drink so consumed.
[[Page 1495]]
(8) Any person who shall sell or provide any liquor to any person
under the age of 21 years shall be guilty of a violation of this
ordinance for each sale or drink provided.
(9) Any person who transfers in any manner an identification of age
to a person under the age of 21 years for the purpose of permitting
such person to obtain liquor shall be guilty of an offense; provided,
that corroborative testimony of a witness other than the underage
person shall be a requirement of finding a violation of this ordinance.
(10) Any person who attempts to purchase an alcoholic beverage
through the use of false or altered identification which falsely
purports to show the individual to be over the age of 21 years shall be
guilty of violating this ordinance.
(11) Any person guilty of a violation of this ordinance shall be
liable to pay the Prairie Band of Potawatomi Indians the amount of $500
per violation as civil damages to defray the Tribe's cost of
enforcement of this ordinance.
(12) When requested by the provider of liquor, any person shall be
required to present official documentation of the bearer's age,
signature and photograph. Official documentation includes one of the
following:
(a) Driver's license or identification card issued by any state
department of motor vehicles;
(b) United States Active Duty Military;
(c) Passport.
(13) Liquor which is possessed, including for sale, contrary to the
terms of this ordinance are declared to be contraband. Any tribal
agent, employee or officer who is authorized by the Tribal Council to
enforce this section shall seize all contraband and preserve it in
accordance with the provisions established for the preservation of
impounded property.
(14) Upon being found in violation of the ordinance, the party
shall forfeit all right, title and interest in the items seized which
shall become the property of the Prairie Band of Potawatomi Indians.
Article VIII. Abatement
(1) Any room, house, building, vehicle, structure, or other place
where liquor is sold, manufactured, bartered, exchanged, given away,
furnished, or otherwise disposed of in violation of the provisions of
this ordinance or of any other tribal law relating to the manufacture,
importation, transportation, possession, distribution, and sale of
liquor, and all property kept in and used in maintaining such place, is
hereby declared to be a nuisance.
(2) The Chairman of the Tribal Council or, if the Chairman fails or
refuses to do so, by a majority vote, the Tribal Council shall
institute and maintain an action in the Tribal Court in the name of the
Tribe to abate and perpetually enjoin any nuisance declared under this
article. In addition to other remedies at tribal law, the Tribal Court
may also order the room, house, building, vehicle, 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 from $1,000 to
$15,000, depending upon the severity of past offenses, the risk of
offenses in the future and any other appropriate criteria, payable to
the Tribe and conditioned that liquor will not be thereafter
manufactured, kept, sold, bartered, exchanged, given away, furnished,
or otherwise disposed of in violation of the provisions of this
ordinance or of any other applicable tribal law and that he will pay
all fines, costs and damages assessed against him for any violation of
this ordinance or other tribal liquor laws. If any conditions of the
bond be violated, the bond may be applied to satisfy any amounts due to
the Tribe under this ordinance.
(3) In all cases where any person has been found in violation of
this ordinance relating to the manufacture, importation,
transportation, possession, distribution, and sale of liquor, an action
may be brought to abate as a nuisance any real estate or other property
involved in the violation of the ordinance and 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 IX. Revenue
(1) Revenue provided for under this ordinance, from whatever
source, shall be expended for administrative costs incurred in the
enforcement of this ordinance. Excess funds shall be subject to
appropriation by the Tribal Council for essential governmental and
social services.
Article X. Severability and Effective Date
(1) If any provision or application of this ordinance is determined
by review to be invalid, such determination shall not be held to render
ineffectual the remaining portions of this ordinance or to render such
provisions inapplicable to other persons or circumstances.
(2) This ordinance shall be effective on such date as the Secretary
of the Interior certifies this ordinance and publishes the same in the
Federal Register.
(3) Any and all prior liquor control enactments of the Tribal
Council which are inconsistent with the provisions of this ordinance
are hereby rescinded.
Article XI. Amendment and Construction
(1) This ordinance may only be amended by a vote of the Tribal
Council, the governing body of the Prairie Band of Potawatomi Indians.
(2) Nothing in this ordinance shall be construed to diminish or
impair in any way the rights or sovereign powers of the Prairie Band of
Potawatomi Indians or their tribal government.
Dated: January 7, 1998.
Kevin Gover,
Assistant Secretary--Indian Affairs.
[FR Doc. 98-694 Filed 1-8-98; 8:45 am]
BILLING CODE 4310-02-P
