2010-26695. Klamath Tribes Liquor Control Ordinance

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes the Secretary's certification of the amendment to the Klamath Tribes Liquor Control Ordinance. The first Ordinance was published in the Federal Register on November 11, 1953 (18 FR 7178 (1953)). This amendment further regulates and controls the sale, possession and distribution of liquor within the tribal lands. The tribal lands are located in Indian country and this amended Ordinance allows for possession of alcoholic beverages within their boundaries. This Ordinance will increase the ability of the tribal government to control liquor possession, sale and use in the community.

DATES:

Effective Date: This Ordinance is effective on November 22, 2010.

FOR FURTHER INFORMATION CONTACT:

Betty Scissons, Tribal Government Services Officer, Northwest Regional Office, 911 NE 11th Ave., 8th Floor, Portland, OR 97232, Telephone: [phone], Fax [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 Klamath Tribes enacted this Liquor Control Ordinance by General Council Resolution # 2010-004 on May 22, 2010. The purpose of this amended ordinance is to govern the possession, sale and distribution of alcohol within tribal lands of the Klamath Tribes.

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 this Liquor Control Ordinance of the Klamath Tribes was duly adopted by the General Council, on May 22, 2010.

Donald Laverdure,

Deputy Assistant Secretary for Indian Affairs.

The Klamath Tribes Liquor Control Ordinance reads as follows:

Liquor Control Ordinance of the Klamath Tribes

General

Title. This ordinance shall be known as “The Klamath Tribes Liquor Control 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 General Council under the Constitution of the Klamath and Modoc Tribes and the Yahooskin Band of Snake Indians, Article VI, Section G.

General Purpose. The purpose of this ordinance is to regulate the sale, distribution and possession of liquor on the Klamath Indian Reservation and other lands subject to tribal governance.

Article I. Definitions

1.1. As used in the title, these words shall have the following meanings unless the context clearly requires otherwise:

1.1.1. “Alcohol” means that substance known as ethyl alcohol, hydrated oxide of ethyl, alcohol, ethanol, or spirits of wine, from whatever source or by whatever process produced.

1.1.2. “Bar” means any establishment with special space and accommodations for the sale of liquor by the glass and for consumption on the premises.

1.1.3. “Beer” means any alcoholic 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 water.

1.1.4. “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 contain alcohol.

1.1.5. “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.

1.1.6. “Malt Liquor” means beer, strong beer, ale, stout and porter.

1.1.7. “Package” means any container or receptacle used for holding liquor.

1.1.8. “Person” means any natural person, firm, partnership, joint venture, association, corporation, municipal corporation, estate, trust, business receiver, or any group or combination acting as a unit and the plural as well as the singular in number.

1.1.9. “Public Place” includes state, county, 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.

1.1.10. “Reservation” means all territory within the exterior boundaries of the area recognized as The Klamath Indian Reservation and all other territory (i) which is or in the future may be located outside of said boundaries, and (ii) to which it is possible to extend the Tribes' jurisdiction or authority, including, without limitation, territory within the exterior boundaries of Indian country of the Tribes or of its members and all property held by the United States in trust for the Tribes or for a member of the Tribes.

1.1.11. “Sale” and “Sell” include exchange, barter and traffic, and also include the selling or supplying or distributing of liquor, by any means whatsoever, by any person to any person.

1.1.12. “Spirits” means any beverage which contains alcohol obtained by distillation, including wines exceeding seventeen percent of alcohol by weight.

1.1.13. “Tribes” means the Klamath and Modoc Tribes and the Yahooskin Band of Snake Indians.

1.1.14. “Tribal Council” means the governing body of the Tribes with respect to governmental functions.

1.1.15. “Tribal Court” means Tribal Court for the Tribes.

1.1.16. “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 during or after fermentation, and containing not more than 17 percent of alcohol by weight, including sweet wines fortified with wine spirits, such as port, sherry, muscatel and angelica, not exceeding 17 percent of alcohol by weight.

1.1.17. “General Council” means all eligible voters of the Klamath, Modoc and Yahooskin Band of Snake Indians.

Article II. Rules, Regulations and Enforcement

2.1. It shall be a violation of this ordinance for any person:

2.1.1. To in any manner introduce, sell, offer for sale, distribute, transport, consume, use or possess liquor on the Reservation except as expressly permitted by this ordinance,

2.1.2. To buy liquor on the Reservation from any person other than a tribally-licensed person,

2.1.3. Engaged wholly or in part in the business of carrying passengers for hire, and every agent, servant, or employee of such person, to permit any person to drink liquor in any public conveyance or for any person to consume liquor in a public conveyance,

2.1.4. To possess liquor with the intent to sell except as expressly permitted by this ordinance,

2.1.5. Under the age of 21 years to consume, acquire or have in possession any liquor,

2.1.6. Owning or controlling a premises to permit any other person under the age of 21 to consume liquor on such premises except as expressly exempted by this ordinance,

2.1.7. To sell or provide any liquor to any person under the age of 21 years,

2.1.8. To transfer 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; provided, that there is corroborative testimony of a witness other than the underage person,

2.1.9. To knowingly sell liquor to a person under the influence of liquor,

2.1.10. To attempt to purchase liquor through the use of false or altered identification which falsely purports to show the individual as being over the age of 21 years, or

2.1.11. To possess, introduce or consume liquor at a place or premises that is or would be considered a public, common or other nuisance under any tribal, state or federal statutory or common law.

2.2. Any person who promotes any activity or owns or controls land on which there is any activity that is a violation of this ordinance shall be liable for and subject to the same penalties and proceedings as the person who directly commits the violation.

2.3. Any person guilty of a violation of this ordinance shall be liable to pay the Tribes up to $5,000 per violation as civil penalties.

2.4. When requested by the provider of liquor, a person shall be required to present official documentation of the bearer's age, signature and photograph. Official documentation includes one of the following:

2.4.1. Driver's license or identification card issued by any state department of motor vehicles;

2.4.2. United States Active Duty Military card; or

2.4.3. Passport; or

2.4.4. Official Tribal Identification from Federally recognized Tribes.

2.5. Liquor which is possessed contrary to the terms of this ordinance is declared to be contraband. Any tribal agent, employee or officer who is authorized by the General Council to enforce this ordinance shall seize all contraband and preserve it in accordance with the provisions established for the preservation of impounded property. 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 Tribes.

Article III. Abatement

3.1. Any room, house, building, vehicle, structure, land or other place where liquor is sold, manufactured, bartered, exchanged, given away, furnished, consumed or possessed or otherwise disposed of in violation of the provisions of this ordinance or of any other tribal law, and all property kept in and used in maintaining such place, is hereby declared to be a nuisance.

3.2. The Chairman of the Tribal Council or, if the Chairman fails or refuses to do so, by a majority vote, the General Council may institute and maintain an action in the Tribal Court in the name of the Tribes to abate and perpetually enjoin any nuisance declared under this article. In addition to other remedies at tribal law, depending upon the severity of past offenses, the risk of offenses in the future, the effect of the violator's activity on public health, safety or welfare and any other appropriate criteria, the Tribal Court may order the room, house, building, vehicle, structure, land or place closed or it may require the owner, lessee, tenant, or occupant thereof to give bond payable to the Tribes, of sufficient sum and conditioned that liquor will not be thereafter manufactured, kept, sold, bartered, exchanged, given away, furnished, possessed, consumed or otherwise disposed of in violation of the provisions of this ordinance or of any other applicable tribal law and that such person will pay all penalties, fees, costs and damages assessed against him for any violation of this ordinance or other tribal laws. If any conditions of the bond be violated, the bond may be applied to satisfy any amounts due to the Tribes. No order or injunction closing any business for a violation of this ordinance shall be issued without granting the opportunity to have a full evidentiary and adversary hearing.

3.3. In all cases where any person has been found in violation of this ordinance, 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, land or place against which such action is brought is a public nuisance.

Article IV. Powers of Enforcement

4.1. Powers and Duties. In furtherance of this ordinance, the General Council shall have the following powers and duties:

4.1.1. To publish and enforce rules and regulations governing liquor on the Reservation;

4.1.2. To employ managers, accountants, security personnel, inspectors and such other persons as shall be reasonably necessary to allow the General Council to perform its functions;

4.1.3. To issue licenses permitting the sale, manufacture or distribution of liquor on the Reservation;

4.1.4. To bring proceedings in the Tribal Court or other appropriate forum to enforce this ordinance as necessary;

4.1.5. To seek penalties, taxes, damages, fees and other appropriate remedies, orders and injunctions for the violation of this ordinance;

4.1.6. To makes such reports as may be required; and

4.1.7. To collect taxes and fees levied or set by the General Council and to keep accurate records, books and accounts.

4.2. Limitations on Powers. In the exercise of its powers and duties under this ordinance, the General Council and its individual members shall not:

4.2.1. Accept any gratuity, compensation or other thing of value from any liquor wholesaler, retailer, or distributor or from any licensee;

4.2.2. Waive the immunity of the Tribes from suit without the express written consent and resolution of the Tribal Council.

4.3. Inspection Rights. All premises on which liquor is sold, consumed, possessed or distributed shall be open for inspection by the Tribes at all reasonable times for the purposes of ascertaining whether the rules and regulations of the General Council and this ordinance are being complied with.

4.4. Hearings and Appeals. Violations of this ordinance shall be deemed a civil offense against the Tribes. Civil actions by the Tribes against violators may proceed in hearings initiated and held by any hearing officer designated by General Council. The General Council may impose penalties, damages, costs, taxes and attorneys fees and take any other actions reasonably necessary to carry out this ordinance. Liabilities imposed under this ordinance shall be a lien upon the violator's property located on the reservation until paid and may be enforced and executed upon through the Tribal Court. Orders issued hereunder may be appealed to Tribal Court and considered under the arbitrary and capricious standard of review.

Article V. Sales of Liquor

5.1. License Required. Sales of liquor on the Reservation may only be made at businesses which hold a license issued pursuant to this ordinance.

5.2. Sales for Cash. All liquor sales on the 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.

5.3. Sale for Personal Consumption. All sales shall be for the personal use and consumption of the purchaser. Resale of any liquor on the Reservation is prohibited. Any person who is not licensed pursuant to this ordinance who purchases liquor on the Reservation and sells it, whether in the original container or not, shall violate this ordinance.

Article VI. Licensing

6.1. Procedure. All persons or entities which desire to sell liquor on the Reservation must apply to the Tribes for a license.

6.2. Application. Any person or entity applying for a license to sell or serve liquor on the Reservation must fill in the application provided for this purpose by the Tribes and pay such application fee as may be set from time to time by the General Council for this purpose. Said application must be filled out completely in order to be considered.

6.3. Issuance of License. The General Council may issue a license if it believes that such issuance is in the best interests of the Tribes.

6.4. Period of License. Each license may be issued for a period not to exceed two years from the date of issuance.

6.5. Renewal of License. A licensee may renew its license if the licensee has complied in full with this ordinance provided however, that the General 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 Tribes.

6.6. Revocation of License. The General 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.

6.7. Non-transferability of Licenses. Licenses issued by the General Council shall not be transferable and may only be utilized by the person or entity in whose name it was issued.

Article VII. Taxes

7.1. Sales Tax. The General 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 liquor on the Reservation based upon a percent of the retail sales price. All taxes from the sale of liquor on the Reservation shall be paid over to the General Treasury of the Tribes.

7.2. Taxes Due. All taxes for the sale of liquor on the Reservation are due on the 15th day of the month following the end of the calendar quarter for which the taxes are due or on such other dates as specified by tribal regulation.

7.3. Delinquent Taxes. Past due taxes shall accrue interest at 2 percent per month.

7.4. 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.

7.5. 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 on the Reservation. Said review or audit may be done periodically by the Tribes or through its agents or employees whenever, in the opinion of the General Council, such a review or audit is necessary to verify the accuracy of reports.

Article VIII. Revenue

Revenue collected 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 General Council for governmental social services, including education, prevention and treatment programs to fight alcohol abuse on the Reservation.

Article IX. Exceptions

9.1. The introduction, distribution, transport, consumption, sale, offer for sale, use, consumption and possession of liquor is permitted:

9.1.1. For consumption at a gaming facility complex or other tribally-owned enterprise,

9.1.2. For scientific research or manufacturing products other than liquor,

9.1.3. For medical use under the direction of a physician, medical or dental clinic, or hospital,

9.1.4. For preparations not fit for human consumption such as cleaning compounds and toilet products, and for flavoring extracts, or

9.1.5. For sacramental use.

9.2. The consumption and possession of liquor for personal consumption by a person legally present on private, non-commercial property is permitted, subject to applicable tribal law.

9.3. These exceptions shall be narrowly construed.

Article X. Severability and Effective Date

10.1. 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.

10.2. This ordinance is effective 30 days after the date of publication in the Federal Register.

Article XI. Amendment and Construction

11.1. This ordinance may only be amended by a vote of the General Council or as otherwise allowed by Tribal law.

11.2. Nothing in this ordinance shall be construed to diminish or impair in any way the rights, sovereign powers or sovereign immunity of the Tribes.

11.3. This Ordinance conforms to all requisite laws pursuant to 18 U.S.C. 1161. The Tribes will comply with Oregon Liquor Laws to the extent required by 18 U.S.C. 1161.

Certification

We, the undersigned, as Chairman and Secretary of the Klamath Tribes, do hereby certify that at a Regular General Council meeting held on the 22nd day of May, 2010 where a quorum was present, the General Council duly adopted this Resolution by a vote of _ 43 __ for, __ 4 __ opposed, and _ 8 __ abstaining.

Gary Frost,

Chairman, The Klamath Tribes.

Torina Case,

Secretary, The Klamath Tribes.