[Federal Register Volume 62, Number 39 (Thursday, February 27, 1997)]
[Notices]
[Pages 8985-8989]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4944]
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DEPARTMENT OF THE INTERIOR
Sac and Fox Nation of Missouri Liquor and Beer Act
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, as interpreted by the
Supreme Court in Rice v. Rehner, 463 U.S. 713 (1983). I certify that
the Sac and Fox Nation of Missouri Liquor and Beer Act was duly adopted
by Resolution R-53-96 of the Sac and Fox Nation of Missouri Tribal
Council on September 27, 1996. The ordinance provides for the
regulation, sale, possession and use of alcoholic liquor and beer
within the Tribe's jurisdiction.
DATES: This ordinance is effective as of February 27, 1997.
FOR FURTHER INFORMATION CONTACT: Jerry Cordova, Office of Tribal
Services, 1849 C Street, N.W., MS 4603 MIB, Washington, D.C. 20240-
4001; telephone (202) 208-4401.
SUPPLEMENTARY INFORMATION: The Sac and Fox Nation of Missouri Liquor
and Beer Ordinance shall read as follows:
Sac and Fox Liquor and Beer Act
Section 1. Title and Purpose
This Title shall be known as the Sac and Fox Liquor and Beer Act
(``Act''). This law is enacted to regulate the sale and distribution of
liquor and beer products on all properties under the jurisdiction of
the Sac and Fox Nation of Missouri, and to generate revenue to fund
needed tribal programs and services.
Section 2. Authority
This Act is enacted pursuant to Article V (f) and (i) of the
Constitution of the Sac and Fox Nation of Missouri in Kansas and
Nebraska and the Act of August 15, 1953 (Pub. L. 83-277, 67 Stat. 588,
18 U.S.C. Sec. 1161).
Section 3. Definitions
Unless otherwise required by the context, the following words and
[[Page 8986]]
phrases shall have the designated meanings:
(a) ``Nation'' or ``Tribe'' shall mean the Sac and Fox Nation of
Missouri in Kansas and Nebraska.
(b) ``Tribal Council'' shall mean the Tribal Council of the Sac and
Fox Nation of Missouri as constituted by Article IV of the Constitution
of the Sac and Fox Nation of Missouri in Kansas and Nebraska.
(c) ``Commission'' shall mean the Sac and Fox Liquor and Beer
Control Commission established pursuant to Section 201 of this Act.
(d) ``Sac and Fox Indian Country'' shall mean Indian Country as
defined by 18 U.S.C. Sec. 1151 subject to the jurisdiction of the Sac
and Fox Nation of Missouri, including but not limited to, any lands and
waters held in trust by the Federal Government within the jurisdiction
of the Sac and Fox Nation of Missouri.
(e) ``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 liquor or beer products.
(f) ``Wholesale Price'' shall mean the established price for which
liquor and beer products are sold to the Sac and Fox Nation of Missouri
or any Operator by the manufacturer or distributor, exclusive of any
discount or other reduction.
(g) ``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 substances including all dilutions and mixtures of this
substance.
(h) ``Liquor'' shall mean the four varieties of liquor, commonly
referred to as alcohol, spirits, wine, and beer in excess of 5% percent
of alcohol, and all fermented, spirituous, vinous or malt liquor or any
other intoxicating liquid, solid, semi-solid or other substance
patented or not, containing alcohol, spirits, wine, or beer in excess
of 5% percent of alcohol, and intended for oral consumption.
(i) ``Beer'' shall mean any beverage obtained by the alcohol
fermentation of an infusion or decoction of pure hops, or pure extract
of hops, and malt and sugar in pure water containing not more than 5%
percent of alcohol by weight.
(j) ``Liquor Outlet'' shall mean a tribally licensed retail sale
business selling liquor within the Sac and Fox Indian Country,
including all related and associated facilities under the control of
the Licensee. Moreover, where a Licensee's business is carried on as
part of the operation of an entertainment or recreation facility, the
``Liquor Outlet'' shall be deemed to include the entire entertainment
or recreation facility and associated areas.
(k) ``Beer Outlet'' shall mean a tribally licensed retail sale
business selling beer within the Sac and Fox Indian Country, including
all related and associated facilities under the control of the
Licensee. Moreover, where a Licensee's business is carried on as part
of the operation of an entertainment or recreation facility, the ``Beer
Outlet'' shall be deemed to include the entire entertainment or
recreation facility and associated areas.
(l) ``Operator'' or ``Licensee'' shall mean any person twenty-one
(21) years of age or older, properly licensed by the Nation to operate
a liquor and/or beer outlet.
Chapter One--Prohibition
Section 101. General Prohibition
It shall be unlawful to buy, sell, give away, consume, furnish, or
possess any liquor or beer or product containing alcohol for ingestion
by human beings, or to appear or be found in a place where liquor or
beer are sold and/or consumed except as allowed by the Sac and Fox
Liquor and Beer Act and regulations promulgated thereunder.
Section 102. Possession for Personal Use
Possession of liquor or beer for personal use by persons over the
age of 21 years shall, unless otherwise prohibited by Federal or tribal
law or regulation, be lawful within the Sac and Fox Indian Country, so
long as such liquor or beer was lawfully purchased from an
establishment duly licensed to sell such beverages, whether on or off
the Sac and Fox Indian Country and consumed within a private residence
or location, or at a location or facility specifically licensed for the
public consumption of liquor or beer.
Chapter Two--Licensing
Section 201. Licensing of Liquor and Beer Outlets
The Tribal Council shall be the Liquor and Beer Control Commission.
The Commission is empowered to:
(a) Administer this Act by exercising general control, management,
and supervision of all liquor and beer sales, places of sale and sales
outlets as well as exercising all powers necessary to accomplish the
purposes of this Act.
(b) Adopt and enforce rules and regulations in furtherance of the
purpose of this Act and in the performance of its administrative
functions.
Section 202. Application for Liquor and Beer Outlet Licenses
(a) Application. Any person twenty-one (21) years of age and older,
may apply to the Commission for a liquor and/or beer outlet license.
(b) Licensing Requirements. The person applying for such permit
must make a showing once a year, and must satisfy the Commission that:
(1) he/she is a person of good moral character;
(2) he/she has never been convicted of violating any of the laws
prohibiting the traffic in any spirituous, vinous, fermented or malt
liquors, or of any of the gambling laws of the Nation, state, or any
other tribe or state of the United States, within three (3) years
immediately preceding the date of his/her petition;
(3) he/she has not violated the laws commonly called ``prohibition
laws'';
(4) he/she has not had any permit or license to sell non-
intoxicating liquors revoked by any governmental authority within the
previous twelve (12) months.
(c) Processing of Application. The Commission's Secretary shall
receive and process applications and be the official representative of
the Nation and Commission in matters relating to receipt of
applications, liquor and beer excise tax collections and related
matters. If the Commission or its authorized representative is
satisfied that the applicant is suitable and a responsible person, the
Commission or its authorized representative may issue a license for the
sale of liquor and/or beer products.
(d) Application Fee. Each application shall be accompanied by an
application fee to be set by regulation of the Commission.
(e) Discretionary Licensing. Nothing herein shall be deemed to
create a duty or requirement to issue a license. Issuance of licenses
is discretionary upon the Commission's determination of the best
interests of the Sac and Fox Nation, and the license grants a
privilege, but not a property right, to sell liquor and/or beer within
the jurisdiction of the Sac and Fox Nation at the licensed outlet(s).
Section 203. Liquor and Beer Outlet Licenses
(a) Upon approval of an application, the Commission shall issue the
applicant a liquor and/or beer outlet license, valid for one year from
the date of issuance, which shall entitle the Operator to establish and
maintain only the type of outlet being permitted. This license shall
not be transferrable. The Licensee must properly and publicly
[[Page 8987]]
display the license in the place of business. It shall be renewable at
the discretion of the Commission by the submission of the Licensee of a
subsequent application form and payment of application fee as provided
in Section 202(d).
Section 204. Other Business by Operator
An Operator may conduct another business simultaneously with
managing a liquor and/or beer outlet; PROVIDED, if such other business
is in any manner affiliated or related to the liquor and/or beer outlet
it must be approved by majority vote of the Commission prior to
initiation. Said other business may be conducted on the same premise as
a liquor and/or beer outlet, but the Operator shall be required to
maintain separate books of account for the other business.
Section 205. Revocation of Operator's License
(a) Failure of an Operator to abide by the requirements of this Act
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 601
of this Act.
(b) Upon determining that any person licensed by the Sac and Fox
Nation to sell liquor or beer is, for any reason, no longer qualified
to hold such license or reasonably appears to have violated any terms
of the license or tribal regulations, including failure to pay taxes
when due and owing, or have been found by any forum of competent
jurisdiction, including the Commission, to have violated the terms of a
tribal or state license or of any provision of this Act, the
Chairperson of the Commission shall immediately serve written notice
upon the Licensee directing that he/she show cause within ten days why
his or her license should not be revoked or restricted. The notice
shall state the grounds relied upon for the proposed revocation or
restriction.
(c) If the Licensee fails to respond to the notice within ten (10)
days of service, the Chairperson may issue an order revoking the
license or placing such restrictions on the license as the Chairperson
deems appropriate, effective immediately. The Licensee may, within the
10 day period, file with the Office of the Chairperson a written
response and request for hearing before the Commission.
(d) At the hearing, the Licensee may present evidence and argument
directed at the issue of whether or not the asserted grounds for the
proposed revocation or restriction are in fact true, and whether such
grounds justify the revocation or modifications of the license. The
Nation may present other evidence as it deems appropriate.
(e) The Commission after considering all of the evidence and
arguments, shall issue a written decision either upholding the license,
revoking the license or imposing some lessor penalty (such as a
temporary suspension or a fine), and such decision shall be final and
conclusive.
(f) The Commission's final decision, upon posting a bond with the
Court sufficient to cover the Commission's final hearing assessment or
ruling, may be appealed by Licensee to the Sac and Fox Court. Any
findings of fact of the Commission are conclusive upon the Court unless
clearly contrary to law. The purposes of Court review are not to
substitute the Court's finding of facts or opinion for the
Commission's, but to guarantee due process of law. If the Court should
rule for the appealing party, the Court may order a new hearing giving
such guidance for the conduct of such as it deems necessary for a fair
hearing. No damage or monies may be awarded against the Commission, its
members, nor the Nation and its agents and employees in such an action.
Chapter Three--Liquor and Beer Sales and Transportation
Section 301. Sales by Liquor and Beer Wholesalers and Transport of
Liquors and Beers Upon Sac and Fox Indian Country
(a) Right of Commission to Scrutinize Suppliers. The Operator of
any licensed outlet shall keep the Commission informed, in writing, of
the identity of the suppliers and/or wholesalers who supply or are
expected to supply liquor and/or beer stocks to the outlet(s). The
Commission may, at its discretion, limit or prohibit the purchases of
said stock from a supplier or wholesaler for the following reasons:
non-payment of Tribal taxes; bad business practices; or sale of
unhealthy supplies. A ten day notice of stopping purchases (``Stop
Purchase Order'') will be given by the Commission whenever purchases
from a supplier are to be discontinued unless there is a health
emergency, in which case the Stop Purchase order may take effect
immediately.
(b) Freedom of Information from Suppliers. Operators shall in their
purchase of stock and in their business relations with suppliers
cooperate with and assist the free flow of information and data to the
Commission from suppliers relating to the sales and business
arrangements between the suppliers and Operators. The Commission may,
at its discretion, require the receipts from the suppliers of all
invoices, bills of lading, billings or other documentary receipts of
sales to the Operators. All records shall be kept according to Section
302(g) of this Act.
Section 302. Sales by Retail Operators
(a) Commission Regulations. The Commission shall adopt regulations
which shall supplement these laws and facilitate their enforcement.
These regulations shall include prohibitions on sales to minors, where
liquor and/or beer may be consumed, persons not allowed to purchase
liquor and/or beer, hours and days when outlets may be open for
business, and other appropriate matters and controls.
(b) Sales to Minors. No person shall give, sell, or otherwise
supply liquor and/or beer 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.
(c) Consumption of Liquor and/or Beer upon Licensed Premises. No
Operator shall permit any person to open or consume liquor or beer on
his or her premises or any premises adjacent thereto and in his or her
control until the Commission allows the consumption of liquor and/or
beer and identifies where liquor and/or beer may be consumed on Sac and
Fox Indian Country.
(d) Conduct on Licensed Premises.
(1) No 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; nor shall
he or she use or allow the use of profane or vulgar language thereon.
(2) No Operator shall permit suggestive, lewd, or obscene conduct
or acts on his or her premises. For the purpose of this section,
suggestive, lewd or obscene acts or conduct shall be those acts or
conduct identified as such by the laws of the Nation and/or of the
State of Kansas.
(e) Employment of Minors. No person under the age of twenty-one
(21) years of age shall be employed in any service in connection with
the sale or handling of liquor, either on a paid or voluntary basis.
(f) Operator's Premises Open to Commission Inspection. The premises
of all Operators, including vehicles used in connection with liquor
and/or beer sales, shall be open during business hours and at all other
reasonable times
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to inspection by the Commission or its designated representatives.
(g) Operator's Records. The originals or copies of all sales slips,
invoices, and other memoranda covering all purchases of liquor and/or
beer by Operators shall be kept on file in the retail premises of the
Operator purchasing the sale 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 as 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/or beer, and all memoranda, if any, showing payment of
money for liquor and/or beer other than by check, shall be likewise
preserved for availability for inspection and checking.
(h) Records Confidential. All records of the Commission showing the
purchase of liquor by any individual or group shall be confidential and
shall not be inspected except by members of the Commission or its
authorized representatives.
(i) Conformity with State Law. Operators shall comply with the
State of Kansas liquor and beer laws to the extent required by 18
U.S.C. Sec. 1161. However, the Nation shall have the fullest
jurisdiction allowed under Federal law over the sale of liquor and beer
products, and related products or activities, within the boundaries of
Sac and Fox Indian Country.
Section 303. Transportation through the Reservation not Affected
Nothing herein shall pertain to the otherwise lawful transportation
of liquor or beer through the Sac and Fox Indian Country by persons
remaining upon public highways and where such beverages are not
delivered or sold or offered for sale to anyone within the Sac and Fox
Indian Country.
Chapter Four--Taxation and Audits
Section 401. Excise Tax Imposed upon Distribution of Liquor
(a) General Taxing Authority. The Commission shall have authority,
as provided by Tribal law, to assess and collect tax on sales of liquor
and beer products to the consumer or purchaser. The tax shall be
collected and paid to the Commission upon all liquor and beer products
sold within the jurisdiction of the Nation. The Tribal Council may
establish differing tax rates for any given class of merchandise, which
shall be paid prior to the time of retail sale and delivery thereof.
(b) Added to Retail Price. An excise tax, to be set by the Tribal
Council, on the wholesale price shall be added to the retail selling
price of liquor and beer products sold to the ultimate consumer or
purchaser. All taxes paid pursuant to this Act shall be conclusively
presumed to be direct taxes on the retail consumer precollected for the
purposes of convenience and facility only.
(c) Within 72 hours after receipt of any liquor or beer by any
wholesaler or retailer subject to this Act, a tribal tax stamp shall be
securely affixed thereto denoting the tribal tax thereon. Retailers or
sellers of liquor and/or beer within the Nation's jurisdiction may buy
and sell or have in their possession only liquor and/or beer which have
the tribal tax stamp affixed to each package.
Section 402. Audits and Inspection
(a) 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 during business hours and at all other
reasonable times.
(b) Bond for Excise Tax. The excise tax together with reports on
forms to be supplied by the Commission, shall be remitted to the
Commission on a monthly basis unless otherwise specified in writing by
the Commission. The Operator shall furnish a satisfactory bond to the
Commission in an amount to be specified by the Commission guaranteeing
his or her payment of excise taxes.
Chapter Five--Liability, Insurance and Sovereign Immunity
Section 501. Liability for Bills
The Nation and the Commission shall have no legal responsibility
for any unpaid bills owed by a liquor and/or beer outlet to a wholesale
supplier or any other person.
Section 502. Tribal Liability and Credit
(a) Unless explicitly authorized by tribal statute, Operators are
forbidden to represent or give the impression to any supplier or person
with whom he or she does business that he or she is an official
representative of the Nation or the 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 Nation and
the Commission harmless from all claims and liability of whatever
nature. The Commission shall revoke an Operator's outlet license(s) if
said outlet(s) 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.
(b) Insurance. The Operator shall maintain at his or her expense
adequate insurance covering liability, fire, theft, vandalism, and
other insurable risks. The Commission may establish as a condition of
any license, the required insurance limits and any additional coverage
deemed advisable, proof of which shall be filed with the Commission.
Section 503. Sovereign Immunity Preserved
Nothing in this statute shall be construed as a waiver or
limitation of the sovereign immunity of the Sac and Fox Indian Nation
or its agencies, nor their officers or employees.
Chapter Six--Violations-Penalties
Section 601. Violations-Penalties
(a) Any person who violates this Act or elicits, encourages,
directs or causes to be violated these laws shall be guilty of an
offense and subject to a fine. Failure to have a current, valid or
proper license shall not constitute a defense to an alleged violation
of the licensing laws or regulations. The Sac and Fox Nation Court
system will have jurisdiction over the proceeding.
1. Any person convicted of committing any violation of this Act
shall be subject to punishment of up to one year imprisonment and/or a
fine not to exceed Five Thousand Dollars ($5,000.00).
2. Additionally, any person upon committing any violation of any
provision of this Act may be subject to a civil action for trespass,
and upon having been determined by the Court to have committed the
violation, shall be found to have trespassed upon the lands of the Sac
and Fox Nation, and shall be assessed such damages as the Court deems
appropriate in the circumstances.
3. Any person suspected of having violated any provision of this
Act shall, in addition to any other penalty imposed hereunder, be
required to surrender any liquor or beer in such person's possession to
the officer making the arrest or complaint. The surrendered beverages,
if previously unopened, shall only be returned upon a finding by the
Court after trial that the individual committed no violation of this
Act.
4. Any Operator who violates the provisions set forth herein shall
forfeit all of the remaining stock in the outlet(s). The Commission
shall be empowered to seize forfeited products.
5. Any stock, goods or other items subject to this Act that have
not been registered, licensed, or taxes paid shall be contraband and
subject to immediate
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confiscation by the Commission or its employees or agents, PROVIDED,
that within 15 days of the seizure the Commission shall cause to be
filed an action against such property alleging the reason for the
seizure or confiscation, and upon proof, the Court shall order the
property forfeited and vested in the Sac and Fox Nation of Missouri.
Chapter Seven--Miscellaneous Provisions
Section 701. Severability
If any provision of this Act in its application to any person or
circumstance is held invalid, the remainder of the Act and its
application to other persons or circumstances is not affected.
Section 702. Effective Date
This Act shall become effective upon publication of the Secretary
of the Interior's certification notice in the Federal Register.
Dated: February 20, 1997.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 97-4944 Filed 2-26-97; 8:45 am]
BILLING CODE 4310-22-P
