E5-6818. Lac Vieux Desert Band of Lake Superior Chippewa Indians Liquor Control Ordinance

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes the Lac Vieux Desert Band of Lake Superior Chippewa Indians' Liquor Control Ordinance. The Ordinance regulates and controls the possession, sale and consumption of liquor within the Lac Vieux Desert Band of Lake Superior Chippewa Indians' Reservation. The Reservation is located on trust land and this Ordinance allows for the possession and sale of alcoholic beverages within the exterior boundaries of the Lac Vieux Desert Band of Lake Superior Chippewa Indians' Reservation. This Ordinance will increase the ability of the tribal government to control the community's liquor distribution and possession, and at the same time will provide an important source of revenue for the continued operation and strengthening of the tribal government and the delivery of tribal services.

DATES:

Effective Date: This Ordinance is effective on December 5, 2005.

FOR FURTHER INFORMATION CONTACT:

De Springer, Regional Tribal Operations Officer, Bureau of Indian Affairs, Midwest Regional Office, Bishop Henry Whipple Federal Building, One Federal Drive, Room 550, Ft. Snelling, MN 55111, Telephone [phone], Ext. 1125, Fax [phone]; or Ralph Gonzales, Office of Tribal Services, 1951 Constitution Avenue, NW., Mail Stop 320-SIB, 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 Lac Vieux Desert Band of Lake Superior Chippewa Indians' Tribal Council adopted its Liquor Ordinance by Resolution No. 2004-005 on September 28, 2004. The purpose of this Ordinance is to govern the sale, possession and distribution of alcohol within the Lac Vieux Desert Band of Lake Superior Chippewa Indians' Reservation.

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 this Liquor Ordinance of the Lac Vieux Desert Band of Lake Superior Chippewa Indians was duly adopted by the Tribal Council on September 28, 2004.

Dated: November 23, 2005.

William A. Sinclair,

Acting Principal Deputy Assistant Secretary—Indian Affairs.

The Lac Vieux Desert Band of Lake Superior Chippewa Indians' Liquor Ordinance reads as follows:

RESOLUTION #2004-005; Lac Vieux Desert Desert Band of Lake Superior Chippewa Indians; Liquor Control Ordinance of the Lac Vieux Desert Desert Band of Lake Superior Chippewa Indians

Whereas: the Lac Vieux Desert Desert Band of Lake Superior Chippewa Indians are a federally recognized tribe, and

Whereas: the Lac Vieux Desert Desert Band of Lake Superior Chippewa Indians has a tribal council empowered to transact business and otherwise act on behalf of the band, and

Whereas: the Lac Vieux Desert Desert Band of Lake Superior Chippewa Indians is committed to regulating the use of liquor on its reservation and otherwise protecting the health, safety and welfare of the Tribe and its members as well as the general public, and;

Now therefore be it resolved: That the Lac Vieux Desert Desert Band of Lake Superior Chippewa Indians hereby adopts this resolution creating a Liquor Control Ordinance as follows:

Section I: Title

This Ordinance shall be known as the “Liquor Control Ordinance.” This Ordinance repeals and replaces any other previous liquor ordinances adopted by the council.

Section II: Authority

This Ordinance is enacted pursuant to Article IV Section 1 of the Constitution and Bylaws of the Lac Vieux Desert Desert Band of Lake Superior Chippewa Indians.

Section III: Purpose

This Ordinance regulates the consumption, delivery and/or sale of alcoholic beverages within the Indian country lands of the Lac Vieux Desert Desert Band of Lake Superior Chippewa Indians, for the purpose of protecting the health, safety and welfare of the Tribe and its members as well as the general public.

Section IV: Interpretation

This Ordinance shall be deemed an exercise of the police and regulatory powers of the Lac Vieux Desert Desert Band of Lake Superior Chippewa Indians to promote tribal self-determination and to protect the public welfare, and all provisions of this ordinance shall be liberally construed for the accomplishment of these purposes.

Section V: Definitions

The following definitions apply in this Ordinance, unless the context otherwise requires:

A. Alcoholic beverage means any spirituous, vinous, malt or fermented liquor, liquors and compounds, whether or not medicated, proprietary, patented, and by whatever name called, containing one-half of one percent (1/2 of 1%) or more alcohol by volume, which are fit for use for beverage purposes.

B. Liquor means any alcoholic drink.

C. Person means a natural person, firm, association, corporation or other legal entity.

D. Tribe or Bands means the Lac Vieux Desert Desert Band of Lake Superior Chippewa Indians.

E. Tribal Council means the governing body of the Lac Vieux Desert Desert Band of Lake Superior Chippewa Indians, which body is also referred to as the Tribal Council in the Tribe's Constitution.

F. Secretary means the Secretary of the United States Department of the Interior.

G. Indian Country of the Tribe means, for purposes of this Ordinance, all lands within Gogebic County, Michigan which are now or hereafter owned by the Bands or held in trust for the Bands by the United States.

H. State means the State of Michigan.

I. Tribal representatives mean the Tribal Chairman, a tribal member, a program director or manager of a subsidiary or commercial enterprise of the Tribe.

J. Tribal license means an official action by the Tribal Council which authorizes the sale of alcoholic beverages for consumption either on the premises and/or away from the premises.

K. Premises means specified locations within the Indian Country of the Tribe, as described in a license issued by the Tribal Council.

Section VI: General Provisions

A. Policy

It is the policy of the Tribe that only the Tribe and its subsidiary enterprises, or tribal members or non-tribal members may engage in the sale of alcoholic beverages within the Indian Country of the Tribe. Therefore, no person other than the tribal government or its subsidiary enterprises or tribal members or non-tribal members as licensed under this ordinance may deliver for profit, sell or trade for profit any alcoholic beverages within the Indian Country of the Tribe.

B. On-Premises Consumption

No person shall sell, trade, transport, manufacture, use, or possess any alcoholic beverage, nor any other substance whatsoever capable of producing alcoholic intoxication, intended for consumption on the premises, nor aid nor abet any Indian or non-Indian person in any of the foregoing, except in compliance with the terms and conditions of this Ordinance as well as applicable federal Indian liquor laws, and applicable provisions of the laws of the State of Michigan and regulations administered by its Liquor Control Commission.

C. Off-Premises Consumption

No person shall sell, trade, transport, manufacture, use, or possess any alcoholic beverage, nor any other substance whatsoever capable of producing alcoholic intoxication, intended for consumption away from the premises, nor aid nor abet any Indian or non-Indian person in any of the foregoing, except in compliance with the terms of this ordinance, applicable federal Indian liquor laws, and applicable provisions of the laws of the State of Michigan and regulations administered by its Liquor Control Commission.

D. Application of State Law

Unless otherwise contradicted by this Ordinance or other Tribal law, laws of the State and regulations of its Liquor Control Commission shall pertain to sale, trade, manufacture, use or possession of alcoholic beverages within the Indian Country of the Tribe. Provided that in no event shall any laws of the Tribe pertaining to liquor regulation be construed to be less stringent than the laws and regulations of the State. Nothing in this section or Ordinance is intended to allow the State to exercise any jurisdiction over the Tribe, its members, or any persons or transactions within the Indian Country of the Tribe that the State would not otherwise have. Nothing in this section or ordinance is intended to in any way waive or limit the sovereign immunity of the Tribe.

E. Condition of Tribal License

Any tribal enterprise having a license for the sale of alcoholic beverages issued by the Tribal Council shall be required to comply, as a condition of retaining such license, with any applicable tribal laws and ordinances and shall further observe the laws of the State regarding times of sale and minimum ages of persons to whom sales may be made.

Section VII: Tribal Licenses for the Sale of Alcoholic Beverages

A. Upon application submitted in writing by tribal representatives, the Tribal Council may issue a license authorizing (1) sale of alcoholic beverages (or specific types thereof) solely for consumption on the premises, and/or (2) sale of alcoholic beverages (or specific types thereof) intended for consumption away from the premises.

B. All applications for such licenses must be submitted to the Tribal Council in writing, setting forth the purpose for the license together with the description of the premises upon which such sale is proposed to take place.

C. The Tribal Council shall have the power and authority to determine, in its sole discretion, the number and type of licenses for the sale of alcoholic beverages that may from time-to-time be issued pursuant to this ordinance and to place any restrictions on said license it deems appropriate under the circumstances.

D. Fees. The Tribal Council may set reasonable fees for the issuance of licenses under this Ordinance.

E. Duration of License. Unless sooner canceled, every license issued by the Tribal Council shall expire at midnight on the 31st day of December. Applications for renewal must be submitted to the Tribal Council on or before November 15 of the preceding year. The Tribal Council will act on all renewal applications on or before December 15.

Section VIII: Violations

A. Any Indian person found to be in violation of the provisions of this Ordinance shall be deemed guilty of a criminal offense and may be prosecuted in Tribal Court in an action brought by the Tribal Prosecutor. Any such criminal proceeding against an Indian person shall comply with all due process and equal protection requirements of the Indian Civil Rights Act, which shall include at a minimum adequate notice, a full and fair hearing, and the right to call and cross examine witnesses. Upon conviction, the Tribal Court may impose a sentence of a fine not greater than $1,000.00 and/or a jail term not exceeding sixty (60) days.

B. 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. However, violations of this Statute by a non-Indian shall also be deemed a civil offense against the Tribe and a civil action against non-Indian violators may proceed in Tribal Court to the extent allowed under Federal law. In such civil action brought in Tribal Court by the Tribal Prosecutor, the Tribal Court may impose a fine not greater than $1,000.00 and/or exclusion from the Tribe's reservation, as authorized in Article IV, Section 1(k) of the Tribe's Constitution. Any such civil proceeding against a non-Indian shall comply with all due process and equal protection requirements of the Indian Civil Rights Act, which shall include at a minimum adequate notice, a full and fair hearing, and the right to call and cross examine witnesses.

C. Revocation of License. The Tribal Council may, for alleged violation of this Ordinance, temporarily suspend a license for an alleged violation of this Ordinance until such time as an action is commenced in Tribal Court. The Chairperson of the Tribal Council or the Tribal Prosecutor may, for alleged violation of this Ordinance, institute and maintain an action in the Tribal Court in the name of the Tribe to revoke or permanently suspend a license issued under this Ordinance. Such proceeding against the holder of the license in question shall comply with all due process and equal protection requirements of the Indian Civil Rights Act, which shall include at a minimum adequate notice, a full and fair hearing, and the right to call and cross examine witnesses. Upon final judgment issued against the defendant, the Tribal Court may order the forfeiture of any license issued pursuant to this Ordinance, and all rights of the licensee to keep or sell alcoholic beverages under this Ordinance shall be suspended or terminated as the case may be. Pending final judgment the Tribal Court may issue orders for preliminary injunction if the plaintiff can demonstrate a likelihood of success and irreparable injury to the Tribe or its members if such orders are not issued.

Section IX: Effective Date

This ordinance shall be effective as a matter of tribal law as of the date of the adoption by the Tribal Council and effective as a matter of Federal law on such date as the Assistant Secretary—Indian Affairs certifies and publishes the same in the Federal Register.

Section X: Savings Clause

In the event that any phrase, provision, part, paragraph, subsection or section of this Ordinance is found by a court of competent jurisdiction to violate the Constitution, laws or ordinances of the Lac Vieux Desert Desert Band of Lake Superior Chippewa Indians or applicable Federal law, such phrase, provision, paragraph, subsection or section shall be considered to stand alone and to be deleted from this Ordinance, the entirety of the balance of the Ordinance to remain in full and binding force and effect.

Certification

We do hereby certify that this resolution was duly presented and voted upon with a vote of 5 in favor, 1 opposed, and 0 abstaining, at a regular meeting held on this 28th day of September 2004.

/s/

James Williams, Jr., Chairman

/s/

Michelle Hazen, Secretary