E9-28230. Kalispel Tribe of Indians Tobacco and Liquor Code

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes an amendment to the Kalispel Tribe of Indians' Tobacco and Liquor Code published in the Federal Register August 1, 1979 (44 FR 45258). The amendment regulates and controls the possession and consumption of liquor within the Tribal lands. The Tribal lands are located in Indian country and this amended Code allows for possession of alcoholic beverages within their boundaries. This Ordinance will increase the ability of the Tribal government to control liquor sales, possession and consumption by the community and its members.

DATES:

Effective Date: This amended Code is effective on December 28, 2009.

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 or amended liquor ordinances or codes for the purpose of regulating liquor transactions in Indian country. The Kalispel Tribe of Indians amended its Tribal Tobacco and Liquor Code by Resolution No. 2008-45 on July 22, 2008. The purpose of this Code is to govern the sale and possession of alcohol within Tribal lands of the Tribe. 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 amended Tobacco and Liquor Code for the Kalispel Tribe of Indians was duly adopted by the Kalispel Tribe's Business Committee on July 22, 2008.

Dated: November 17, 2009.

Larry Echo Hawk,

Assistant Secretary—Indian Affairs.

The amended Kalispell Tribe of Indian's Tobacco and Liquor Code reads as follows:

Chapter 10

Kalispel Tobacco and Liquor Code

§ 10-1 Title and Purpose.

10-1.01 Title.

This chapter shall be known as the Kalispel Tobacco and Liquor Code.

10-1.02 Purpose

This Code is enacted to:

1. Regulate the distribution and sale of tobacco products on the Kalispel Reservation in conformity with the compact between the Kalispel Tribe and the State of Washington.

2. Regulate the distribution and sale of liquor and beer products on the Kalispel Reservation in conformity with 18 U.S.C. 1161 and any Tribal-State liquor compact.

3. Regulate tobacco, liquor and beer products in order to protect and promote the general health, safety and welfare of members of the Kalispel Tribe.

4. Generate revenue to fund needed Tribal programs and services.

§ 10-2 Definitions.

10-2.01 Definitions

Unless otherwise required by the context, the following words and phrases shall have the designated meanings:

1. “Alcohol” is that substance known as ethyl alcohol, hydrated oxide of ethyl, or spirit of wine, which is produced by the fermentation or distillation of grain, starch, molasses, or sugar, or other substance including all dilutions and mixtures of this substance.

2. “Beer” means any malt beverage, flavored malt beverage, or malt liquor as these terms are defined in this chapter.

3. “Cigarette” shall mean any roll for smoking made wholly or in part of tobacco being flavored, adulterated, or mixed with any other ingredients, where such wrapper is wholly or in the greater part made of paper of any material except where such is wholly or in the greater part made of natural leaf tobacco in its natural state.

4. “Commercial Sale” shall mean the transfer, exchange or barter, in any or by any means whatsoever for a consideration, by any person, association, partnership, or corporation, of cigarettes, tobacco products and/or liquor and beer products.

5. “Council” shall mean the Kalispel Tribal Business Committee as constituted by Article III of the Constitution and By-laws of the Kalispel Indian Tribe, Washington.

6. “Distributor” shall mean a person who buys liquor in any variety from a brewery, distillery, vineyard, foreign source outside of the United States, and includes any representatives of such a source such as a brewer or brewer agent.

7. “Liquor” includes 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, a part of which is fermented, spirituous, vinous or malt liquor, or otherwise intoxicating; and every 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 substance, which contains more than one percent of alcohol by weight shall be conclusively deemed to be intoxicating. Liquor does not include confections or food products that contain one percent or less of alcohol by weight.

8. “Liquor Outlet” shall mean a Tribally licensed retail sales business selling liquor or beer on the Kalispel Indian Reservation.

9. “Malt Beverage” or “malt liquor” means any beverage such as beer, ale, lager, stout, porter, flavored malt beverages such as wine coolers, or Guinness obtained by the alcoholic fermentation of an infusion or decoction of pure hops, or the pure extract of hops and pure barley malt or other wholesome grain or cereal in pure water containing not more than eight percent of alcohol by weight, and not less than one-half of one percent of alcohol by volume. Any such beverage containing more than eight percent of alcohol by weight shall be referred to as strong beer.

10. “Member” shall mean any person whose name appears on the official roll of the Kalispel Indian Tribe.

11. “Operator” shall mean an enrolled member of the Kalispel Tribe, enrolled member of another Federally recognized Tribe, a Tribal leasee or Tribally-licensed business entity licensed by the Kalispel Tribe of Indians to operate a tobacco and/or liquor and beer outlet.

12. “Reservation” shall mean the Kalispel Indian Reservation as set apart by Executive Order of March 23,1914, and all other lands, wherever located, owned by the Kalispel Tribe of Indians, including lands held in fee, or any interest in lands held by the Tribe, whether or not such lands or interests are held in trust for the Tribe by the United States, and any lands, wherever located, held in trust by the United States for a member or members of the Kalispel Tribe of Indians unless located on another Federally recognized Indian Tribe's Reservation and having already been determined by the Federal Government to be in “reservation” status as to a Tribe other than the Kalispel Tribe of Indians. All waterways, roadways, rights of way, public lands, lakes and streams located on the above described lands held by the Tribe or its members are considered Reservation lands, subject to applicable Federal and Tribal laws and regulations.

13. “Spirits” shall mean any beverage which contains alcohol obtained by distillation and intended for consumption.

14. “Tobacco Outlet” shall mean a Tribally licensed retail sales business selling tobacco products on the Kalispel Indian Reservation.

15. “Tobacco Products” shall mean cigars, cheroots, stogies, granulated, plug cut, crim cut, ready rubbed, and other smoking tobacco, snuff, cavendish, snuff flour, plug and twist tobacco, fine cut and other chewing tobaccos shorts and other kinds and forms of tobacco, prepared in such a manner as to be suitable for chewing or smoking in a pipe or otherwise, or both for smoking and chewing. Tobacco products shall not include cigarettes.

16. “Tribe” shall mean the Kalispel Indian Community of the Kalispel Indian Reservation, Washington.

17. “Wholesale Price” shall mean the established price for which cigarettes, tobacco products and/or liquor and beer products are sold to the Kalispel Indian Tribe or any licensed operator by the manufacturer or distributor, exclusive of any discount or other reduction.

18. “Wine” shall mean any alcoholic beverage obtained by fermentation of fruits or other agricultural products containing sugar and containing not more than twenty-four percent alcohol by volume and not less than one-half of one percent of alcohol by volume. For purposes of this chapter, “wine coolers” shall not be defined as wine but rather as a “malt beverage”.

§ 10-3 Kalispel Tobacco, Liquor and Beer Control Commission.

10-3.01 Creation and Authority

The Kalispel Business Committee shall be the Kalispel Tobacco, Liquor and Beer Control Commission. The Commission is empowered to:

1. Administer this Code by exercising general control, management, and supervision of all tobacco and/or liquor and beer sales, places of sale and sales outlets as well as exercising all powers necessary to accomplish the purposes of this Code;

2. Adopt and enforce rules and regulations in furtherance of the purposes of this Code and in the performance of its administrative functions.

10-3.02 Records Confidential

All records of the Kalispel Tobacco, Liquor and Beer Commission showing purchase of liquor by any individual or group shall be confidential and shall not be inspected except by members or employees of the Kalispel Tobacco, Liquor and Beer Commission or its authorized representative.

§ 10-4 Generally Applicable Regulations

10-4.01 Conformity with State and Federal Laws.

Operators of tobacco and/or liquor and beer outlets shall comply with applicable Tribal/State compact requirements and State of Washington liquor standards to the extent required by 18 U.S.C. 1161. However, total jurisdiction over the sale of liquor and beer products is reserved to and exercised by the Kalispel Tobacco, Liquor and Beer Commission within the boundaries of the Kalispel Indian Reservation.

10-4.02 Sales to Persons Apparently Intoxicated

Any person who sells, gives or otherwise provides liquor, wine or beer to a person apparently under the influence of liquor shall be in violation of this Chapter.

10-4.03 Identification for Sale Required—Proof of Minimum Age

Where there may be question of a person's right to purchase cigarettes, tobacco products or alcoholic beverages by reason of his or her age, such person shall be required to present any one of the following officially issued cards of identification which shows correct age and bears his or her signature and photograph:

1. Driver's license of any State or Identification Card issued by any State Department of Motor Vehicles;

2. United States Active Duty Military Identification;

3. Passport;

4. Tribal Identification Card approved by the Washington State Liquor Control Board;

5. Kalispel Tribal Identification or Enrollment card.

10-4.04 Expired Identification Not Valid

An officially issued identification card described in Section 10-4.02 must be current to be valid identification. An officially issued identification card that is expired is not valid identification for the purpose of purchasing cigarettes, tobacco products or alcoholic beverages.

10-4.05 Sales to Minors Prohibited

It shall be unlawful to:

1. Provide, give, sell or otherwise supply liquor, beer or other alcoholic beverages to any person under twenty-one (21) years of age, either for his or her own use or for the use of his or her parents or for the use of any other person.

2. Provide, give, sell or otherwise supply cigarettes or tobacco products to any person under eighteen (18) years of age, either for his or her own use or for the use of his or her parents or for the use of any other person.

10-4.06 Employment of Minors

No person under the age of twenty-one (21) years shall be employed in any service in connection with the sale, handling or dispensing of liquor, either on a paid or voluntary basis, except as otherwise provided herein.

1. Northern Quest Casino employees must be twenty-one (21) years of age to be employed in a position involving the sale or dispensing of liquor. Northern Quest Casino employees under twenty-one (21) years of age shall not sell or dispense liquor. Individuals under twenty-one (21) years of age may be employed as:

(a) Servers not working on the gaming floor who handle beer, wine and liquor provided they have successfully completed Mandatory Alcohol Server Training (MAST) and there is direct supervision by an adult twenty-one (21) years of age or older; or

(b) As cashiers, greeters, cooks or custodians, or as a gaming employee as defined in Kalispel Tribal Code § 11-11.02(B), where they are not selling or handling beer, wine or liquor.

2. Non-gaming facility employees eighteen (18) years or older may sell and handle beer or wine not to be consumed on the premises provided that they have successfully completed Mandatory Alcohol Server Training (MAST) and there is direct supervision by an adult twenty-one (21) years of age or older.

10-4.07 Consumption of Liquor Upon Licensed Premises Prohibited

No Tribal operator shall permit any person to open or consume liquor on his or her premises or any premises adjacent thereto and in his or her control. This prohibition shall not apply to lawful sales and consumption of alcohol at the Kalispel Tribe's Northern Quest Casino located on the Reservation lands in Airway Heights, Washington or upon approval of the Commission of additional licensed liquor outlets on Reservation lands acquired in the future.

10-4.08 Conduct on Licensed Premises

1. No Tribal operator shall be disorderly, boisterous or intoxicated on the licensed premises or on any public premises adjacent thereto which are under his or her control, nor shall he or she permit any disorderly boisterous or intoxicated person to be thereon.

2. No operator or employee shall consume liquor of any kind while working on the licensed premises.

3. No Tribal operator shall encourage, sanction or knowingly permit any activity that would be in violation of Chapter 9 of the Kalispel Tribe Law and Order Code.

§ 10-5 Tribal Taxation of Tobacco and Liquor

10-5.01 Tribal Cigarette Tax

The Kalispel Tribe will levy a tax on the retail sale of each pack of cigarettes, the amount of which is established by the cigarette tax compact between the Kalispel Tribe and the State of Washington.

10-5.02 Tribal Tobacco Product Tax

Other tobacco products, excluding cigarettes, shall be taxed at a rate determined to be fair and equitable by the Commission, but the Commission may establish tax rates dependent solely on the given class of merchandise.

10-5.03  Exemption From Cigarette and Tobacco Tax

An operator may, upon approval of the Commission and in a non-discriminatory manner, exempt enrolled members of the Kalispel Tribe and enrolled members of another Federally recognized Indian Tribe, band, or Alaskan Native, or a member of the Canadian First Nations, from imposition of the Tribe's cigarette and tobacco product taxes, provided, however, the individual present a valid Tribal identification card upon purchase of the cigarettes or tobacco products.

10-5.04 Tribal Alcoholic Beverage Tax

All alcoholic beverages, including packaged liquor, wine and beer, and those products dispensed for consumption at a licensed liquor outlet, shall be taxed at a rate determined to be fair and equitable by the Commission, but the Commission may establish tax rates dependent solely on the given class of merchandise.

10-5.05 Added to Retail Price

The excise taxes levied hereunder shall be added to the retail selling price of cigarettes, tobacco products, and alcoholic beverages sold to the ultimate consumer.

10-5.06 Use and Allocation of Revenue

The excise taxes levied hereunder shall be placed in the General Fund of the Kalispel Tribe. The revenue may be allocated at the discretion of the Tribal Council to Tribal projects and expenses for essential government services.

§ 10-6 Application for Tobacco Outlet License or Liquor and Beer Outlet License

10-6.01 Eligibility for Application

Any enrolled member of the Kalispel Indian Tribe, an enrolled member of another Federally recognized Tribe, a Tribal leasee or a Tribally-licensed business entity may apply to the Commission for a tobacco outlet license and/or a liquor and beer outlet license.

10-6.02 Processing of Application

The Tribal secretary-treasurer shall receive and process applications, and be the official representative of the Tribe and Commission in matters relating to tobacco and/or liquor and beer outlets excise tax collections and related matters. The Commission or its authorized representative shall obtain additional information as deemed appropriate. If the Commission or its authorized representative is satisfied that the applicant is a suitable and reputable person, the Commission or its authorized representative may issue a license for the sale of tobacco products and/or liquor and beer products.

10-6.03 Application Fee

Each application shall be accompanied by an application charge or fee of fifty dollars ($50.00). An application for both a tobacco outlet license and a liquor and beer outlet license shall be considered to be two applications with an application charge of fifty dollars ($50.00) each.

10-6.04 Issuance of License

Upon approval of an application, the Commission shall issue the applicant a tobacco outlet license and/or a liquor and beer outlet license whichever the case may be, for one year which shall entitle the operator to establish and maintain one outlet for the type being permitted on the Kalispel Indian Reservation. This license shall be nontransferable. It shall be renewable annually at the discretion of the Commission by filing a new application form and payment of the application fee as provided in this Section.

10-6.05 Display of License

Any entity issued a license shall frame under glass and display the license on the premises.

10-6.06 Revocation of Operator's License

Failure of an operator to abide by the provisions of this chapter and any additional regulations or requirements imposed by the Commission will constitute grounds for revocation of the operator's license as well as enforcement of the penalties provided in Section 10.10.

§ 10-7 Non-Tribal Owned Outlets

10-7.01 Applicability

This Section applies to tobacco and liquor outlets that are owned and operated by an individual who is an enrolled member of the Kalispel Indian Tribe, an enrolled member of another Federally recognized Tribe, a Tribal leasee or a Tribally-licensed business entity. This section shall not apply to gaming facilities or outlets operated by the Kalispel Tribe as business enterprises of the Tribe.

10-7.02 Nature of Outlet

Each tobacco and/or liquor and beer outlet, licensed hereunder, shall be managed by an operator pursuant to a license granted by the Commission, hereunder, and shall conform to the regulations and prohibitions outlined by this Chapter.

10-7.03 Right of Commission To Screen Suppliers

The operator of any licensed outlet shall keep the Commission informed in writing of the identity of suppliers and wholesalers who supply or are expected to supply tobacco or liquor stocks to the outlet. The Commission may at its discretion and for any reasonable cause limit or prohibit the purchase of said stock from a supplier or wholesaler.

10-7.04 Freedom of Information From Suppliers

Operators shall in their purchase of stock and in their business relationships with suppliers cooperate with and assure a free flow of information and data to the Commission from suppliers relating to all sales to and business arrangements between the suppliers and operators. The Commission may, in its discretion, require the receipt from the suppliers of all invoices, bills of lading, billings or other documentary record of sales to the operator.

10-7.05 Operator's Premises Open to Commission Inspection

The premises of all Tribal Operators, including vehicles used in connection with liquor sales, shall be open at all times to inspection by the Kalispel Liquor Commission.

10-7.06 Operator's Records

The originals or copies of all sales slips, invoices and other memoranda covering all purchases of liquor by operators shall be kept on file in the retail premises of the operator purchasing the same for at least five (5) years after each purchase, and shall be filed separately and kept apart from all other records, and as nearly as possible shall be filed in consecutive order and each month's records kept separate so to render the same readily available for inspection and checking. All canceled checks, bank statements and books of accounting covering or involving the purchase of liquor, and all memoranda, if any, showing payment of money for liquor other than by check, shall be likewise preserved for availability for inspection and checking.

10-7.07 Other Business by Operator

An operator may conduct another business simultaneously with managing a tobacco or liquor and beer outlet for the Tribe. The other business may be conducted on the same premises, but the operator shall be required to maintain separate books of account for the other business.

10-7.08 Audit

All of the books and other business records of the outlet shall be available for inspection and audit by the Commission or its authorized representative for any reasonable time.

10-7.09 Tribal Liability and Credit

An operator is forbidden to represent or give the impression to any supplier or other person with whom he or she does business that he is an official representative of the Tribe or Commission authorized to pledge Tribal credit or financial responsibility for any of the expenses of his or her business operation. The operator shall hold the Kalispel Indian Tribe harmless from all claims and liability of whatever nature. The Commission shall revoke the operator's outlet license if the outlet is not operated in a businesslike manner or if it does not remain financially solvent or does not pay its operating expenses and bills before they become delinquent.

10-7.10 Bond for Excise Tax

The excise tax together with reports on forms to be supplied by the Tribe shall be remitted to the Tribal office monthly unless otherwise specified in writing by the Commission. The operator shall furnish a satisfactory bond to the Tribe in an amount to be specified by the Commission guaranteeing his or her payment of excise tax.

10-7.11 Insurance

The operator shall maintain at his or her expense adequate insurance covering liability, fire, theft, vandalism and other insurable risks. The Commission or the Business Committee may establish as a condition of any licenses, higher limits and any additional coverage it deems advisable. All insurance policies shall name the Tribe as an insured.

10-7.12 Liability for Bills

The Tribe shall have no legal responsibility for any unpaid bills owed by a non-Tribally owned tobacco or liquor and beer outlet to a wholesale supplier or to any other person. The operator shall make arrangements with his or her wholesalers to send copies of all of his or her purchase invoices to the Tribal office.

10-7.13 Assent to Tribal Court Jurisdiction

Operation of a Tribally-licensed tobacco or liquor outlet by a business entity creates a consensual relationship between the Tribe and the operator and the operator consents to Tribal court jurisdiction.

§ 10-8 Tribal Enterprises

10-8.01 Applicability

This Section applies to Kalispel Tribal business enterprises, including tobacco and liquor outlets and gaming facilities. This Section is not applicable to outlets described in Section 10-7.01.

10-8.02 Subrogation of Chapter 17 Provisions

Each tobacco and/or liquor and beer outlet, owned, managed and operated as a Kalispel Tribal Business Enterprise shall conform to the regulations and prohibitions outlined by this Chapter, to the extent that they are not in conflict with Chapter 17 of the Kalispel Tribe Law and Order Code. In case of conflict, the provisions of this Chapter shall be subrogated for the applicable provisions in Chapter 17.

10-8.03 Other Business

A tobacco and/or liquor and beer outlet, owned, managed and operated as a Kalispel Tribal Business Enterprise may conduct another business simultaneously with the outlet. The other business may be conducted on the same premises, but separate books of account for the other business shall be maintained.

10-8.04 Insurance

A tobacco and/or liquor and beer outlet, owned, managed and operated as a Kalispel Tribal Business Enterprise shall be covered by adequate insurance covering liability, fire, theft, vandalism and other insurable risks. The Commission or the Business Committee may establish higher limits and any additional coverage it deems advisable. All insurance policies shall name the Tribe as an insured.

10-8.05 Liability For Bills

The Tribe shall have legal responsibility for any unpaid bills owed by a tobacco or liquor and beer outlet owned, managed and operated as a Kalispel Tribal Business Enterprise to a wholesale supplier or to any other person. This liability is expressly limited by Section 17-8 of the Kalispel Tribe Law and Order Code.

§ 10-9 Tribal Court Jurisdiction

10-9.01 Jurisdiction

The Kalispel Tribal Court shall have jurisdiction over all matters described in this Code. This jurisdiction shall extend over Indians and Non-Indians to the full extent allowed by Federal, State and Tribal Law.

§ 10-10 Violations and Penalties

1-10.01 Violation and Penalties

Any tobacco or liquor outlet operator violating this chapter shall be guilty of an offense and subject to fine that the Tribal Court determines to be appropriate and/or the Tribal Court may also order that the license to sell tobacco or liquor be revoked or suspended.

1-10.02 Integration of Chapter 9

With the exception of Section 10-4.07, which permits purchase and consumption of alcoholic beverages at Northern Quest casino and other Tribally licensed liquor outlets, nothing in this chapter shall be deemed to override the criminal offenses described in Chapter 9 of the Kalispel Tribe Law and Order Code. The criminal offenses described therein shall have full force and effect concurrently with any violation of this Chapter.

10-10.03 Integration of Chapter 13

If an action or omission is deemed to violate both this Chapter and Chapter 9, the Tribal prosecutor shall prosecute the offense or violation under whichever provision provides for the harsher sentence, either under this Chapter or Chapter 13 of the Kalispel Tribe Law and Order Code.

10-10.04 Non-Indian Violators

Non-Indian individuals found to be in violation of this Chapter, Chapter 9 or an applicable statute under the Revised Code of Washington shall be subject to legal action that is in conformity with current Washington law.

§ 10-11 Sovereign Immunity

10-11.01 Consent To Sue Tribe Not Granted

This Chapter does not grant jurisdiction or authority to bring suit against the Kalispel Indian Tribe. Nothing in this Chapter shall be deemed a waiver of the sovereign immunity from suit of the Tribe or its agents, entities, instrumentalities, or officials, which immunity is hereby held to extend to the Tribe and its officers and employees acting for the Tribe within the scope of their Tribal authority.

§ 10-12 Separability

10-12.01 Separability

If any provision of this chapter, its application to any person or circumstance is held invalid, the remainder of the chapter or the application of the provision to other persons or circumstances is not affected.