[Federal Register Volume 63, Number 76 (Tuesday, April 21, 1998)]
[Notices]
[Pages 19741-19744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10500]
[[Page 19741]]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Iowa Tribe of Kansas and Nebraska Liquor and Beer Ordinance
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. 1161. I certify that Resolution
numbered 97-R-08, Iowa Tribe of Kansas and Nebraska Liquor and Beer
Ordinance, was duly adopted by the Iowa Tribe of Kansas and Nebraska
Executive Committee May 28, 1997. The Ordinance provides for the
regulation of the activities of the manufacture, distribution, sale,
and consumption of liquor on reservation lands subject to the
jurisdiction of the Iowa Tribe of Kansas and Nebraska; the provisions
for criminal jurisdiction are to be exercised in accordance with
applicable Federal case law, statutes, and regulations.
DATES: This Ordinance is effective April 21, 1998.
FOR FURTHER INFORMATION CONTACT: Bettie Rushing, Office of Tribal
Services, 1849 C Street NW, MS 4603-MIB, Washington, DC 20240-4001;
telephone (202) 208-4400.
SUPPLEMENTARY INFORMATION: The Iowa Tribe of Kansas and Nebraska
Executive Committee resolution numbered 97-R-08 which reads as follows:
Iowa Tribe of Kansas and Nebraska Liquor and Beer Ordinance
Section 1. Title and Purpose
This Title shall be known as the Iowa Tribe of Kansas and Nebraska
Liquor and Beer Ordinance (``Ordinance''). This law is enacted to
regulate the sale and distribution of liquor and beer products on all
properties under the jurisdiction of the Iowa Tribe of Kansas and
Nebraska, and to generate revenue to fund needed tribal programs and
services.
Section 2. Authority
This Ordinance is enacted pursuant to the Constitution and By-Laws
of the Iowa Tribe of Kansas and Nebraska (as amended August 27, 1980)
and the Act of August 15, 1953 (Pub. L. 83-277, 67 Stat. 588, 18 U.S.C.
1161).
Section 3. Definitions
Unless otherwise required by the context, the following words and
phrases shall have the designated meanings:
(a) Nation or Tribe shall mean the Iowa Tribe of Kansas and
Nebraska.
(b) Executive Committee shall mean the Executive Committee of the
Iowa Tribe of Kansas and Nebraska as constituted by Article IV, Sec. 2
of the Constitution of the Iowa Tribe of Kansas and Nebraska.
(c) Commission shall mean the Iowa Tribe of Kansas and Nebraska
Liquor and Beer Control Commission established pursuant to Section 201
of this Ordinance.
(d) Iowa Tribe of Kansas and Nebraska Indian Country shall mean
Indian Country as defined by 18 U.S.C. 1151 subject to the jurisdiction
of the Iowa Tribe of Kansas and Nebraska, including but not limited to,
any lands and waters held in trust by the Federal Government within the
jurisdiction of the Iowa Tribe of Kansas and Nebraska.
(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 Iowa Tribe of Kansas and
Nebraska 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 Iowa 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 Iowa 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 Tribe 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 Iowa Tribe of
Kansas and Nebraska Liquor and Beer Ordinance 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 Iowa 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 Iowa 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 Executive Committee shall be the Liquor and Beer Control
Commission. The Commission is empowered to:
(a) Administer this Ordinance 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 Ordinance.
(b) Adopt and enforce rules and regulations in furtherance of the
purpose of this Ordinance and in the performance of its administrative
functions.
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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 Tribe, state, any other
tribe or state of the United States or of the United States of America,
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
nonintoxicating 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 Tribe 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.
(a) 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 Tribe, and the license grants a privilege, but not a
property right, to sell liquor and/or beer within the jurisdiction of
the Tribe 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 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 an 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
Ordinance 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 Ordinance.
(b) Upon determining that any person licensed by the Tribe 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 Ordinance, 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
Tribe 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 Iowa Tribe of Kansas and
Nebraska Court. Any findings of fact of the Commission are conclusive
upon the Court unless clearly unsupported by the evidence in the
record. 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 before the Commission 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 Tribe 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 Iowa 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
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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 ordinance.
Section 302. Sales by Retail Operators
(a) Commission Regulations. The Commission shall adopt regulations
which shall supplement this Ordinance 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 Iowa
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 Tribe 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 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 Tribe 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
Iowa 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 Iowa 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 Iowa Indian Country.
Chapter Four--Taxation and Audits
Section 401. Excise Tax Imposed Upon Distribution of Liquor
(a) General Taxing Authority. The Executive Committee 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 Tribe upon all liquor and beer
products sold within the jurisdiction of the Tribe. The Executive
Committee 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. Provided, however, the total amount of the state
local and tribal tax shall not exceed one hundred twenty-five percent
(125%) of the applicable state and local taxes which apply off-
reservation in Brown County, Kansas.
(b) Excise Tax. An excise tax, to be set by the Executive
Committee, 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 Ordinance shall be
conclusively presumed to be direct taxes on the retail consumer
precollected for the purposes of convenience and facility only.
(c) Tribal Tax Stamp. Within 72 hours after receipt of any liquor
or beer by any wholesaler or retailer subject to this Ordinance, a
tribal tax stamp shall be securely affixed thereto denoting the tribal
tax thereon. Retailers or sellers of liquor and/or beer within the
Tribe'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) Inspection and 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 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 Tribe 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 Tribe or the Commission authorized to pledge
tribal credit or financial responsibility for any of the expenses of
his or her business
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operation. The Operator shall hold the Tribe 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 Iowa Tribe of Kansas and
Nebraska or its agencies, nor their officers or employees.
Chapter Six--Violations-Penalties
Section 601. Violations-Penalties
(a) Any person who violates this ordinance 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 Tribe's Court system will
have jurisdiction over the proceeding.
(1) Any person convicted of committing any violation of this
Ordinance 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 Ordinance 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 Iowa Tribe, 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
Ordinance 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
Ordinance.
(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 Ordinance that
have not been registered, licensed, or taxes paid shall be contraband
and subject to immediate confiscation by the Commission or its
employees or agents, PROVIDED, that within fifteen (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
Iowa Tribe of Kansas and Nebraska.
Chapter Seven--Miscellaneous Provisions
Section 701. Severability
If any provision of this Ordinance in its application to any person
or circumstance is held invalid, the remainder of the Ordinance and its
application to other persons or circumstances is not affected.
Section 702. Effective Date
This Ordinance shall become effective upon publication of the
Secretary of the Interior's certification notice in the Federal
Register.
Section 703. Repeal of Existing Liquor Ordinance
On the Effective Date, Tribal Resolution 95-R-30 shall be repealed
and of no further force or effect whatsoever, having been replaced and
superseded by this ordinance.
Dated: April 6, 1998.
Kevin Gover,
Assistant Secretary--Indian Affairs.
[FR Doc. 98-10500 Filed 4-20-98; 8:45 am]
BILLING CODE 4310-02-P
