03-27104. Dry Creek Rancheria Sale and Consumption of Alcoholic Beverages

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes the Dry Creek Rancheria Liquor Ordinance. The ordinance regulates and controls distribution, sale, consumption, possession, inspection, licensing, enforcement and legal compliance associated with the introduction of alcohol on the Dry Creek Rancheria.

EFFECTIVE DATE:

This Code is effective on October 28, 2003.

FOR FURTHER INFORMATION CONTACT:

Iris Drew, Southwest Regional Office, Branch of Tribal Government, P.O. Box 26567, Albuquerque, New Mexico 87125-6567, Telephone [phone], or Ralph Gonzales, Office of Tribal Services, 1951 Constitution Avenue, NW, MS-320-SIB, Washington, DC 20245, Telephone [phone].

SUPPLEMENTARY INFORMATION:

Pursuant to the Act of August 15, 1953, Pub. L. 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 Dry Creek Rancheria adopted Tribal Ordinance No. 02-090-21-001 on September 21, 2002. The purpose of this ordinance is to govern the distribution, sale, consumption, possession, inspection, licensing, enforcement and legal compliance associated with the introduction of alcohol on the Dry Creek Rancheria.

This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Principal Deputy Assistant Secretary—Indian Affairs.

I certify that Liquor Ordinance No. 02-09-21-001 was duly adopted by the Tribal Council of the Dry Creek Rancheria on September 21, 2002.

Dated: October 7, 2003.

Aurene M. Martin,

Principal Deputy Assistant Secretary—Indian Affairs.

Ordinance No. 02-09-21-001

Alcohol Policy

Dry Creek Rancheria Band of Pomo Indians of California

Preamble

This ordinance is for the purpose of providing rules and procedures related to the distribution, sale, consumption, possession, inspection, licensing, enforcement and legal compliance associated with the introduction of alcohol on the Dry Creek Rancheria. It is hereby ordained by the Tribal Council (Membership) of the Dry Creek Rancheria that the following rules and procedures shall apply to the authority, responsibility, legal compliance with local, state and federal laws, and for the protection of the welfare and being of Tribal Members that the following ordinance is hereby adopted:

Article I—Findings and Policy

The Tribe finds that:

1. The introduction, possession, and sale of alcoholic beverages on the Tribe's lands are matters of special concern to the Tribe.

2. Under the authority of Article VII the Tribe's Articles of Association and in conformance with Federal Law and the laws of the State of California as required by 18 U.S.C. 1161 and the Tribe's Gaming Compact, and under the inherent sovereignty of the Tribe, this Ordinance shall be deemed an exercise of the Tribe's power for the protection of the welfare, health, peace, morals and safety of the members of the Tribe.

3. The Tribe's policy is to assure that any possession, importation, sale, or consumption of an alcoholic beverage within the Tribe's jurisdiction shall occur under the regulation and control of the Tribe as set forth in this Ordinance.

4. This Ordinance shall be construed to comply with federal and tribal laws and with applicable state laws (“Applicable Laws”).

Article II—Definitions

The stated terms are defined as follows unless a different meaning is expressly provided or the context clearly indicates otherwise:

1. Alcoholic Beverage or Liquor shall include alcohol, spirits, liquor, wine, beer, and every liquid or solid containing alcohol, spirits, wine, or beer, and which contains one-half of one percent or more of alcohol by volume and which is fit for beverage purposes either alone or when diluted, mixed, or combined with other substances. It shall further mean any intoxicating liquor, beer or any wine, as defined under the provisions of this Ordinance or other applicable law.

2. Tribal Council shall mean the Tribal Council of the Dry Creek Rancheria, which includes all eligible voters and is its governing body.

3. Legal Age shall mean the same as the age requirements of the State of California, which is currently 21 years. If the drinking age for the State of California is repealed or amended to raise or lower the legal age for drinking within California, the Tribal Council is authorized to amend this Article to match the age limit imposed by applicable state law.

4. Licensed Retailer, Importer, or Wholesaler shall mean any Person (hereinafter defined) who is duly licensed to sell liquor by the Tribal Council and the State of California.

5. Person shall mean any individual, firm, partnership, joint venture, association, corporation, trust, or any other group of combination acting as a unit.

6. Sale shall mean the exchange of property and/or any transfer of ownership of, title to, or possession of property for a valuable consideration, exchange or barter, in any manner or by any means whatsoever. Sale includes optional sales contracts, leases with options to purchase and other contracts under which possession of property is given to purchaser, buyer, or consumer but title is retained as security for the payment of the purchase price, and includes any transaction whereby, or any consideration, title to alcoholic beverages is transferred from one person to another.

7. Tribal Lands shall include those lands within the exterior boundaries of the Tribe's Rancheria and other Indian Lands over which the Tribe has jurisdiction.

Article III—General Prohibition

It shall be a violation of Tribal law for any person on those lands under the jurisdiction and control of the Tribe to manufacture for sale, to sell, offer or keep for sale, possess, transport, or conduct any transaction involving any alcoholic beverage except in compliance with the terms, conditions, limitations, and restrictions specified in this Ordinance.

Article IV—Powers of Enforcement

The Tribe, through the Tribal Council or its duly authorized representatives in respect to the enforcement of this Ordinance, shall have the following powers and duties:

1. To develop, approve, publish, enforce and interpret such rules and regulations as may be necessary for enforcement of this Ordinance regarding the sale, manufacture, and distribution of alcoholic beverages on all Tribal Lands over which the Tribe has jurisdiction;

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

3. To issue licenses permitting the sale or manufacture or distribution of alcohol on the lands over which the Tribe has jurisdiction;

4. To hold hearings on violations of this Ordinance, as well as hearings for the issuance, denial, suspension, or revocation of licenses hereunder. Notice and the opportunity to be heard will be provided by the Tribe in such cases;

5. To bring suit in the appropriate court of competent jurisdiction to enforce this Ordinance as necessary;

6. To establish, determine, and levy fines and seek damages for violation of this Ordinance;

7. To collect taxes and fees levied or set by the Tribal Council and to keep records, books, and accounts; and

8. To confiscate liquor sold, possessed or introduced in violation of this Ordinance and to sell or otherwise dispose of such confiscated liquor for the benefit of the Tribe.

Article V—Right To Inspect and Search

The premises on which alcoholic beverages are sold or distributed shall be open for inspection by the Tribe, through the Tribal Council or its duly authorized representatives, at all reasonable times for the purpose of ascertaining compliance with the provisions and requirements of this Ordinance. Where warranted, the Tribe shall conduct reasonable searches and may seize goods.

Article VI—Sales and Possession of Alcohol

The sale and possession of alcohol on tribal lands shall be governed by Tribal and applicable Federal and State Laws and shall be subject to the following limitations:

1. The possession or introduction of alcoholic beverages on Tribal Lands shall be lawful if such possession or introduction is in conformity with Applicable Laws.

2. The sale of alcoholic beverages by business entities owned by and subject to the control of the Tribe shall be lawful; provided that such sales are in conformity with Applicable Laws.

Article VII—Licensing and Enforcement

No tribal license shall issue under this Ordinance except upon a sworn application filed with the Tribe containing full and complete information as required by such application and is subject to the following:

1. Any license granted can be transferred only with the written consent of the Tribe.

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

3. All applicants must provide satisfactory proof that the applicant is or will be duly licensed by the State of California.

4. The Tribe may revoke, suspend, or deny a license at any time, based upon a violation, misrepresentation, failure to renew in a timely manner, failure to provide information requested by the Tribe, and other good cause shown. Applicants or licensees whose licenses are denied, suspended, or revoked may request a hearing before the Tribe.

5. Any person determined by the Tribe to be in violation of the Ordinance shall be subject to civil fines and penalties, based on a schedule of fines applicable to such violations. Penalties may include the imposition of criminal sanctions and penalties, as warranted, consistent with all applicable law.

6. In investigating applicants, the Tribe shall consider whether the applicant is in compliance with all Applicable Laws, and whether such licensing will serve the best interests of the Tribe. All applicants must prove their suitability to obtain a tribal license and to qualify for a state liquor license.

7. Applicant has the burden of providing satisfactory proof that applicant is of good character, has a good reputation in the tribal and local community, and that applicant is financially responsible and meets all other licensing standards established by the Tribe.

Article VIII—Licensing Hearings

All applications for a tribal liquor license shall be reviewed and considered by the Tribe, and the Tribe may convene a hearing to take evidence regarding the application. The Tribal Council shall determine whether to grant or deny the application based on the following criteria:

1. Whether all suitability requirements have been met.

2. Whether all requirements of this Ordinance have been addressed; and

3. Whether the Tribal Council, in its discretion, determines that granting the license is in the best interests of the Tribe.

In the event applicant is a member of the Tribal Council, the member shall not vote on the application or participate in the hearings as a Tribal Council member.

Article IX—Conditions of the Tribal License

Any tribal license issued under this Ordinance shall be subject to such conditions as the Tribal Council shall establish, including but not limited to the following:

1. The licensee shall at all times maintain an orderly, clean establishment, both inside and outside the licensed premises.

2. The licensed premises shall be subject to patrol and inspection by duly authorized tribal enforcement or other tribal officials or their designee, and by such other law enforcement officials as may be authorized by law at all times during regular business hours, and after hours as deemed necessary and prudent by such officials.

3. No alcoholic beverages shall be sold, served, disposed of, delivered or consumed on the licensed premises except in conformity with the hours and days prescribed by the Tribal Council and by the laws of the State of California to the extent applicable.

4. A tribal liquor license shall not be deemed a property right or vested right of any kind, nor shall the granting of a tribal liquor license give rise to a presumption of legal entitlement to the granting of such license for a subsequent time period.

Article X—Tribally-Owned Establishments

The Tribal Council may issue, by resolution, an appropriate license to a tribally-owned establishment upon such determination as is necessary to assure compliance with applicable laws.

Article XI—Sovereign Immunity

Nothing contained in this Ordinance is intended, nor does it in any way limit, alter, restrict, or waive the sovereign immunity of the Tribe or any of its agencies from unconsented suit or other such action of any kind.

Article XII—Severability, Prior Enactments, Amendment, Compliance With Law, and Effective Date

1. If any provision or application of this Ordinance is determined by an agency or court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Ordinance shall remain and be unaffected thereby.

2. All prior tribal laws, ordinances, or resolutions that are or may be determined to be inconsistent with the provisions of this Ordinance are hereby repealed to the extent inconsistent with this Ordinance.

3. This Ordinance may be amended by majority vote of the Tribal Council at any time at a duly noticed meeting. Any such amendment shall become effective upon publication by the Secretary of the Interior in the Federal Register, unless the applicable law does not require such publication for the amendment to become effective.

4. All provisions of this Ordinance shall comply with 18 U.S.C. 1161.

5. 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.

Certification

This is to certify that the foregoing ordinance was duly enacted by the vote of the Tribal Council of Dry Creek Rancheria by a vote of 72 for, 10 against, and 0 abstentions, at a duly held Regular General Meeting of the Tribal Council on Saturday, 21 September 2002, and that this ordinance has not been amended in any manner.

Attest

Elizabeth Elgin DeRouen, Chairperson

Dated: September 21, 2002.

Margie Rojes, Secretary/Treasurer

Dated: September 21, 2002.