[Federal Register Volume 62, Number 220 (Friday, November 14, 1997)]
[Notices]
[Pages 61141-61144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29934]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Tribal Liquor Ordinance for the Kaibab Band of Paiute Indians of
the Kaibab Indian Reservation of Arizona
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 DM 8, and in accordance with the Act of August
15, 1953 , 67 Stat. 586, 18 U.S.C. Sec. 1161. I certify that Ordinance
No. 15, Tribal Liquor Ordinance for the Kaibab Band of Paiute Indians
of the Kaibab Indian Reservation of Arizona, was duly adopted and
certified by the Kaibab Paiute Tribal Council on October 5, 1996. The
Ordinance provides for the regulation of the sale, possession and
consumption of liquor in the area of the Kaibab Indian Reservation,
under the jurisdiction of the Kaibab Band of Paiute Indians, and is in
conformity with the laws of the State of Arizona.
DATES: This Ordinance is effective November 14, 1997.
FOR FURTHER INFORMATION CONTACT: Bettie Rushing, Division of Tribal
Government Services, 1849 C Street NW, MS 4603-MIB, Washington, D.C.
20240-4001; telephone (202) 208-3463.
SUPPLEMENTARY INFORMATION: The Tribal Liquor Ordinance for the Kaibab
Band of Paiute Indians is to read as follows:
Tribal Liquor Ordinance for the Kaibab Band of Paiute Indians of
the Kaibab Indian Reservation of Arizona
Section 1-10-010: Legislative Control
Federal law currently prohibits the introduction of liquor into
Indian country and expressly delegates to tribes the decision regarding
when and to what extent liquor transactions shall be permitted on their
reservations. The Kaibab Band of Paiute Indians (herein, the ``Tribe'')
has decided to open certain lands described below within its
jurisdiction to the possession, consumption and sale of liquor by
enacting this Ordinance, which is adopted pursuant to the Act of August
15, 1953 (Pub. L. 83-277, 67 Stat. 588, 18 U.S.C. Sec. 1161) and shall
serve as the ``Liquor Ordinance'' referenced herein. The lands which
are open to the sale, possession, and consumption of alcoholic
beverages shall be only commercial establishments in which the Tribe
owns a controlling interest and which are located on the Reservation;
provided that any Tribal convenience store shall only be open to sale
and possession, but not consumption, of alcoholic beverages.
Section I-10-020: Control Desired
This Ordinance shall govern all liquor sales and distribution on
the reservation, will increase the ability of the Tribe to control
reservation liquor distribution and possession, and will provide an
additional source of revenue for tribal operations.
Section I-10-030: Goals of Regulation
Tribal regulation of the sale, possession, and consumption of
liquor on the reservation is necessary to protect the health, security,
and general welfare of the Tribe, and to address tribal concerns
relating to alcohol use on the reservation. In order to further these
goals and to provide an additional source of governmental revenue, the
Tribe has adopted this Ordinance, which shall be liberally construed to
fulfill the purposes for which it has been adopted. This Ordinance is
authorized by the Preamble and Article VI, Section I (a), (b), (c),
(d), (e), (h), (j), and (k) and Section 2 (e) of the Constitution and
By-laws of the Tribe which provide, among other things, that the Tribal
Council shall have the power ``to promulgate ordinances and resolutions
to promote and protect the peace, health, education, safety and welfare
of the band, its members and all other persons within its jurisdiction.
Section 1-20-010: Definitions of Words
As used in This Ordinance, the following words shall have the
following meanings unless the context clearly requires otherwise:
(a) ``Alcohol'' means 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.
(b) ``Alcoholic Beverage'' is synonymous with the term ``liquor''
as defined at Section 1-20-010(d) hereof.
(c) ``Beer'' means any beverage obtained by the fermentation or
infusion or decoction of pure hops, or pure extract of hops and pure
barley malt or other wholesome grain or cereal in
[[Page 61142]]
water and which contains not more than four percent of alcohol by
volume.
(d) ``Liquor'' includes the four varieties of liquor herein defined
(alcohol, spirits, wine, and malt liquor), and all fermented,
spirituous, vinous, or malt liquor, or combinations thereof, and mixed
liquor, a part of which is fermented, spirituous, vinous, or malt
liquor, or otherwise intoxicating. Every liquid or solid or semisolid
or other substance, patented or not, containing alcohol, spirits, wine
or malt liquor, and all drinks or drinkable liquids and all
preparations or mixtures capable of human consumption and any liquid,
semisolid, solid, or other substances, containing more than one percent
of alcohol by weight shall be conclusively deemed to be intoxicating.
(e) ``Malt Liquor'' means beer, strong beer, ale, stout, and
porter.
(f) ``Package'' means any container or receptacle used for holding
liquor.
(g) ``Reservation'' means all lands of the Tribe described or
referenced in the Tribe's Constitution, including, but not limited to,
any lands which may in the future come within the jurisdiction of the
Tribe by any lawful means.
(h) ``Sale'' and ``Sell'' mean exchange, barter, and traffic; and
also include the selling 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 liquor'' or
``liquor'' or ``wine'' by any person to any person.
(i) ``Spirits'' means any beverage which contains alcohol obtained
by distillation, including wines exceeding seventeen percent of alcohol
by weight.
(j) ``Strong Beer'' means any beverage obtained by the alcoholic
fermentation or infusion or decoction of pure hops, or pure extract of
hops and pure barley malt or other wholesome grain or cereal in water,
including ale, stout, and porter, containing more than four percent of
alcohol by weight.
(k) ``This Ordinance'' means this liquor code, which shall serve
the Tribe as the liquor ordinance referenced at 18 U.S.C. Sec. 1161.
(l) ``Tribe'' means, and ``Tribal'' refers to, the Kaibab Band of
Paiute Indians, a federally recognized Tribe of Native American
Indians, listed at 53 F.R. 52829-02 as the ``Kaibab Band of Paiute
Indians of the Kaibab Indian Reservation, Arizona.''
(m) ``Tribal Council'' shall mean the duly elected Tribal Council
of the Tribe which is the governing body of the Tribe.
(n) ``Tribal Court'' means the Tribal Courts of the Tribe as
established pursuant to the Constitution and ordinances of the Tribe.
(o) ``Wine'' means any alcoholic beverage obtained by fermentation
of fruits (grapes, berries, apples, etc.) or other agricultural product
containing sugar, 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.
Section 1-30-010: Authorization
The Tribe, its members and other persons, including, but not
limited to, corporations, partnerships, associations and natural
persons, are hereby authorized to introduce, sell, purchase,
distribute, warehouse, possess and consume alcoholic beverages within
certain areas of the Reservation as described in Section 1-10-010, in
accordance with the laws of the State of Arizona (including Arizona
liquor licensing provisions); provided, however, that any person or
entity, other than the Tribe, which sells alcoholic beverages within
the reservation must first obtain a tribal liquor license from the
Tribal Council and such sales shall be subject to taxes and license
fees as may be established by duly enacted resolution of the Tribal
Council.
Section 1-30-020: Distribution of Taxes and Fees
All taxes and license fees related to the sale or introduction of
alcoholic beverages on the reservation shall be remitted to the Tribal
Council through the Tribal Comptroller, who shall keep accurate records
of all such receipts, and shall be subject to distribution by the
Tribal Council in accordance with its usual appropriation procedures
for governmental and social services.
Section 1-30-030: Tribal Liquor License Elements
Tribal liquor licenses shall authorize the holder thereof to sell
alcoholic beverages at wholesale or at retail in cans, bottles or any
other package within a defined area; provided, however, that a tribal
liquor license shall be valid only if the holder thereof is in
compliance with the laws of any other jurisdiction which may have any
authority with regard to liquor sales and regulation on the
reservation.
Tribal liquor licenses shall set forth the location and description
of the building and premises for which each license is issued and shall
define the area where the holder of each tribal liquor license may sell
alcoholic beverages for a period of one year.
Section 1-40-010: General
Notwithstanding any other provision of this Ordinance, no penalty
may be imposed pursuant or related to this Ordinance in contravention
or in excess of any limitation imposed by the Indian Civil Rights Act
of 1968, 82 Stat. 77, 25 U.S.C. Sec. 1301 et seq. (``ICRA'') or other
applicable Federal law.
Section 1-40-020: Illegal Transportation, Still, or Sale Without Permit
Any person who, within the reservation and without a valid tribal
liquor license, sells or offers for sale or transport in any manner any
liquor within the boundaries of the reservation in violation of this
Ordinance, or who operates or has in his possession any spirit
distillation device or any substance meant or specifically concocted to
be distilled into liquor (not including devices or mash related to the
home manufacture of beer, strong beer, or wine solely for the purpose
of personal consumption and not for sale), shall be guilty of an
Offense punishable upon conviction in the Tribal Court.
Section 1-40-030: Illegal Purchase of Liquor
Any person who buys liquor within the boundaries of the reservation
other than from an individual or entity properly licensed pursuant to
this Ordinance shall be guilty of an Offense punishable upon conviction
in the Tribal Court.
Section 1-40-040: Furnishing Liquor to Minors
Except in the case of liquor given or administered to a person by
his physician or dentist for medicinal purposes, no person under the
age of 21 years shall consume, acquire or have in his possession any
alcoholic beverages except when such beverages are used in connection
with religious services. No person shall permit any other person under
the age of 21 to consume liquor on his premises or on any premises
under his control except in those situations set out in this section.
Any person violating this section shall be guilty of an Offense
punishable upon conviction in the Tribal Court.
Section 1-40-050: Sales of Liquor to a Minor
Any person who shall sell any liquor to any person under the age of
21 years shall be guilty of an Offense punishable upon conviction in
the Tribal Court and shall be further subject to forfeit any
[[Page 61143]]
license issued pursuant to this Ordinance; provided, however, that the
forfeiture of any license issued pursuant to this Ordinance may occur
only after notice and a hearing according to the procedures set forth
in Section 1-50-020 of this Ordinance.
Section 1-40-060: Unlawful Transfer of Identification
Any person who transfers in any manner an identification of age to
a minor for the purpose of permitting such minor to obtain liquor shall
be guilty of an Offense punishable upon conviction in the Tribal Court.
Corroborative testimony of a witness other than the minor shall be a
requirement of conviction under this section.
Section 1-40-070: Possession of False or Altered Identification
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
an Offense punishable upon conviction in the Tribal Court.
Section 1-40-080: General Penalties
Any person guilty of a violation of this Ordinance for which no
penalty has been specifically provided shall be liable upon conviction
for the maximum penalty prescribed in the Tribal Law and Order Code.
Section 1-40-090: Identification; Proof of Minimum Age
Where there may be a question of a person's right to purchase
liquor by reason of his/her age, such person 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:
(a) Liquor control authority card of identification of any state;
(b) Driver's license of any state or ``Identicard'' issued by any
state Department of Motor Vehicles;
(c) United States Active Duty Military Identification;
(d) Passport; or
(e) Identification or Enrollment Card issued by the Tribe or any
other federally-recognized tribe.
Section 1-40-100: Illegal Items Declared Contraband
Alcohol beverages which are possessed contrary to the terms of this
Ordinance are hereby declared to be contraband. Any officer who shall
make an arrest under this section shall seize all contraband which he
shall have the authority to seize consistent with the Tribe's
Constitution, the Tribal Law and Order Code, the ICRA and any other
applicable Federal law.
Section 1-40-110: Non-Indian Violations
Nothing in this Ordinance shall be construed to require or
authorize the criminal trial and punishment by the Tribal Court of any
non-Indian except to the extent allowed under Federal law. In general,
when any provision of this Ordinance is violated by a non-Indian, he or
she shall be referred to state and/or Federal authorities for
prosecution under applicable law. It is the expressed intent of the
Tribe that any non-Indian referred to state and/or Federal authorities
pursuant to this section be prosecuted to the furthest extent of
applicable law.
Section 1-50-010: Declaration of Nuisance
Any room, house, building, boat, vessel, 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 and all property kept in and used in
maintaining such place, including tribal liquor licenses related to any
such property, are hereby declared to be a common nuisance.
Section 1-50-020: Institution Action
The Chairperson of the Tribal Council or the head of the tribal
law enforcement department may institute and maintain an action in the
Tribal Court in the name of the Tribe to abate and perpetually enjoin
any nuisance declared under article Section 1-50-010 of this Ordinance
or any other violation of this Ordinance. The plaintiff shall be
required to file grounds in the action, and restraining orders,
temporary injunctions, and permanent injunctions may be granted in the
case as in other injunction proceedings. Upon final judgment against
the defendant, the Tribal Court may order the forfeiture of any license
issued pursuant to this Ordinance and that the offending room, house,
building, boat, vessel, vehicle, structure, or place be closed for a
period of one year or until the owner, lessee, tenant, or occupant
thereof shall give bond of sufficient sum of not less than $1,000.00
payable to the Tribe, which bond shall be conditioned on the agreement
of such person that liquor will not be thereafter manufactured, kept,
sold, bartered, exchanged, given away, furnished, or otherwise disposed
of therein in violation of the provisions of this Ordinance and that
such person will pay all fines, costs and damages assessed against him/
her for any violation of this Ordinance. If any conditions of the bond
are violated, the whole amount may be recovered as a penalty for the
use of the Tribe. Any action taken under this section shall be in
addition to any criminal penalties provided for under this Ordinance or
any other applicable provision of the Tribal Law and Order Code.
Section 1-50-030: Abatement of Nuisance
In all cases where any person has been convicted of a violation of
this Ordinance, an action may be brought in Tribal Court to abate as a
nuisance any real estate or other property involved in the commission
of the offense, and in any such action a certified copy of the record
of such conviction shall be admissible in evidence and prima facie
evidence that the room, house, vessel, boat, building, vehicle,
structure, or place against which such action is brought is a public
nuisance.
Section 1-60-01-0: Severability
If any application or provision, or any portion of any provisions,
of this Ordinance is determined by review of any court of competent
jurisdiction to be invalid such adjudication shall not render
ineffectual the remaining portions of this Ordinance or render such
provisions automatically inapplicable to other persons or
circumstances.
Section 1-60-020: Effective Date
This Ordinance shall be effective as a matter of tribal law on
October 15, 1996, upon approval by a majority of eligible voters
attending the annual General Membership Meeting on October 5, 1996, and
effective as a matter of Federal law on November 14, 1997.
Section 1-60-030: Inconsistent Enactments Rescinded
Any and all prior enactments of the Tribal Council which are
inconsistent with the provisions of this Ordinance are hereby rescinded
to the extent of such inconsistency.
Section 1-60-040: Application of 18 U.S.C. Sec. 1161
All acts and transactions under this Ordinance shall be in
conformity with the laws of the State of Arizona to the extent required
under 18 U.S.C. Sec. 1161.
Section 1-60-050: Jurisdiction and Sovereign Immunity
Nothing in this Ordinance shall be construed to limit the
jurisdiction of the Tribe, the Tribal Court, or Tribal law
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enforcement personnel and nothing herein shall limit or constitute a
waiver of the sovereign immunity of the Tribe or its officers,
instrumentalities and agents or authorize any form of a prospective
waiver of such sovereign immunity. Nothing in this Ordinance shall be
construed as an admission that any body politic, other than the Tribe,
has jurisdiction over any matter arising from or related to the
Reservation, except to the extent such jurisdiction is confirmed by
Federal law.
Dated: October 29, 1997.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 97-29934 Filed 11-13-97; 8:45 am]
BILLING CODE 4310-02-P
