05-6675. Samish Indian Nation-Sale and Consumption of Alcoholic Beverages

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes the Samish Indian Nation's Liquor Control Ordinance. The Ordinance regulates and controls the possession, sale and consumption of liquor within land under the jurisdiction of the Samish Indian Nation. The land to which this Ordinance applies is in trust. This Ordinance will increase the ability of the tribal government to control the tribe'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 April 5, 2005.

FOR FURTHER INFORMATION CONTACT:

Betty Scissons, Division of Tribal Government Services, Bureau of Indian Affairs, Northwest Regional Office, 911 NE 11th Avenue, Portland, OR 97232-4169, Telephone [phone], 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 Samish Tribal Council adopted its Liquor Control Ordinance by Resolution No. 2001-04-010 on April 2, 2004, amended by Resolution No. 2004-07-004 on July 9, 2002 and again by Resolution No. 2004-110-021 on November 18, 2004. The purpose of this Ordinance is to govern the sale, possession and distribution of alcohol within land under the jurisdiction of the Samish Indian Nation.

This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Associate Deputy Secretary by Secretarial Order 3259.

I certify that this Liquor Ordinance, of the Samish Indian Nation, was duly adopted by the Tribal Council on April 2, 2004, amended on July 9, 2004 and November 18, 2004.

Dated: March 28, 2005.

Michael D. Olsen,

Acting Principal Deputy Assistant Secretary—Indian Affairs.

The Samish Indian Nation's Liquor Ordinance reads as follows:

Resolution No: 2004-04-010

Adopted: 04-02-04

Amended: 7/09/04, Resolution 2004-07-004; 11/18/04, Resolution 2004-11-021

Subject: Liquor Control

Liquor Control Ordinance

Samish Tribal Code § 16.001

Part I

Introduction

§ 16.001 Purpose and Authority

The purpose of this Ordinance is to regulate and control the possession and sale of liquor within lands under the jurisdiction of the Samish Indian Nation, as specifically authorized and approved by the Samish Tribal Council. The authority for enactment of this Ordinance is as follows:

(a) The Act of August 15, 1953, (Pub. L. 83-277, 67 Stat. 586, codified at 18 U.S.C. 1161), which provides a federal statutory basis for the Samish Indian Nation to regulate the activities of the manufacture, distribution, sale and consumption of liquor on Indian lands under the exclusive jurisdiction of the Samish Indian Nation.

(b) Article IV, Section 3 of the Constitution of the Samish Indian Nation, which vests the Tribal Council with legislative and administrative authority, and otherwise empowers the Tribal Council to act for the Samish Indian Nation.

Part II

Definitions

§ 16.002

(a) As used in this Ordinance, the following words shall have the following meanings unless the context clearly requires otherwise:

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

(2) “Alcoholic Beverage” is synonymous with the term “Liquor” as defined in paragraph (6) of this section.

(3) “Bar” means any establishment with special space and accommodations for sale by the glass and for consumption on the premises of liquor, as herein defined.

(4) “Beer” means any beverage obtained by the alcoholic fermentation of any infusion or decoction of pure hops, or pure extract of hops and pure barley malt or other wholesome grain of cereal in pure water containing not more than four percent of alcohol by volume.

(5) “Tribal Council” for the purposes of this Ordinance shall mean the Tribal Council of the Samish Indian Nation.

(6) “Liquor” including the four varieties of liquor herein defined (alcohol, spirits, wine and beer), and all fermented spirituous, vinous, or malt liquor or combination thereof, and mixed 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 substances, which contain more than one percent of alcohol by weight shall be conclusively deemed to be intoxicating.

(7) “Liquor Store” means any store at which liquor is sold, and for the purposes of this Ordinance, includes a store at which only a portion of which is devoted to the sale of liquor or beer.

(8) “Malt Liquor” means beer, ale, stout, and porter.

(9) “Package” means any container or receptacle used for holding liquor.

(10) “Public Place” includes state or county or tribal or federal highways or roads; buildings and grounds used for school purposes; public dance halls and grounds adjacent thereto; soft drink establishment, public buildings, public meeting halls, lobbies, halls and dining rooms of hotels, restaurants, theater, gaming facilities, entertainment centers, store garages, and filling stations which are open to and/or are generally used by the public and to which the public is permitted to have unrestricted access; public conveyances of all kinds of character; and all other places of like or similar nature to which the general public has right of access, and which are generally used by the public. For the purposes of this Ordinance, “Public Place” shall also include any establishment other than a single family home which is designed for or may be used by more than just the owner of the establishment.

(11) “Sale” and “Sell” include exchange, barter, and traffic; and also include the selling or supplying or distributing by any means whatsoever, of liquor, or of any liquid known or described as beer or by any name whatsoever commonly used to describe malt or brewed liquor or wine by any person to any person.

(12) “Samish Indian Nation Lands” means all lands recognized by the federal government as the territory of the Samish Indian Nation.

(13) “Spirits” means any beverage, which contains alcohol obtained by distillation, including wines exceeding seventeen percent of alcohol by weight.

(14) “Tribe” means the Samish Indian Nation of Washington.

(15) “Wine” means any alcoholic beverage obtained by fermentation of fruits (grapes, berries, apples, etc.) or other agricultural product containing sugar, to which any saccharine substances may have been added before, during or after fermentation, and containing not more than seventeen percent of alcohol by weight, including sweet wines fortified with wine spirits such as port, sherry, muscatel, and angelica, not exceeding seventeen percent of alcohol by weight.

§ 16.003 Conformity to State Law

(a) Statement of Objection. The Samish Indian Nation does not agree with the alleged authority of the United States or the State of Washington to interfere with the Samish Indian Nation's sovereign authority to regulate the control of liquor within Samish Indian Nation lands. Nothing in this Ordinance shall be interpreted as a waiver of the Samish Indian Nation's right and power to challenge such authority in judicial forums of competent jurisdiction, or by use of the political process. This Ordinance shall conform with the laws of the State of Washington as required by 11 U.S.C. § 1161, and Rice v. Rehner, 463 U.S. 713 (1983).

(b) Conformity to State Law. The Samish Indian Nation of Washington agrees to perform in the sale and possession of liquor in the same manner as any other Washington business entity for the purpose of liquor licensing and regulations, including but not limited to licensing, compliance with the regulations of the Washington Liquor Control Commission (WLCC), maintenance of liquor liability insurance, and other applicable subjects as the State may address by statute or regulation from time to time. The Tribal Council may enter into an inter-governmental agreement with the State of Washington to address the details of compliance with state law and regulation under this Ordinance, provided, that any such intergovernmental agreement shall not conflict with or supersede the terms of this Ordinance, and shall not have force of law, unless and until this Ordinance has been validly amended and such amendment has been approved by the appropriate officials of the United States Department of the Interior, as required by federal law.

(c) Jurisdiction and Dispute Resolution. Jurisdiction for enforcement of the provisions of this Ordinance by the State of Washington shall be set forth in an appropriate inter-governmental agreement between the Samish Indian Nation and the State of Washington. No consent to jurisdiction in the courts of the State of Washington and no consent to limited waiver of the Samish Indian Nation's sovereign immunity shall be implied or inferred except through negotiation and express consent to jurisdiction and limited waiver of sovereign immunity in a valid inter-governmental agreement. Such agreement shall not supersede or conflict with any of the terms of this Ordinance, and shall not have force of law, unless and until this Ordinance has been validly amended and such amendment has been approved by the appropriate officials of the United States Department of the Interior, as required by federal law.

Part III

Powers of Enforcement

§ 16.004

(a) Powers: The Tribal Council, in furtherance of the Ordinance, shall have the following powers and duties, or may delegate such duties by resolution:

(1) To publish and enforce the rules and regulations governing the sale, manufacture, and distribution of alcoholic beverages on the Samish Indian Nation lands;

(2) To employ managers, accountants, security personnel, inspectors, and such other persons as shall be reasonably necessary to allow the Tribal Council to perform its functions. Such employees shall be tribal employees;

(3) To issue licenses permitting the sale or manufacture or distribution of liquor on the Samish Indian Nation lands;

(4) To hold hearing on violations of this Ordinance or for the issuance or revocation of licenses hereunder;

(5) To bring suit in the appropriate court to enforce this ordinance as necessary;

(6) To determine and seek damages for violation of this ordinance;

(7) To make such reports as may be required;

(8) To collect taxes and fees levied or set by the Tribal Council, and to keep accurate records, books and accounts; and

(9) To exercise such other powers as are necessary and appropriate to fulfill the purposes of this Ordinance.

§ 16.005 Limitation on Powers

In the exercise of its powers and duties under this Ordinance, the Tribal Council and its individual members shall not accept any gratuity, compensation or other thing of value from any liquor wholesaler, retailer, or distributor or from any licensee.

§ 16.006 Inspection Rights

The premises on which liquor is sold or distributed shall be open for inspection by the Tribal Council, or their authorized representative, at all reasonable times for the purposes of ascertaining whether the rules and regulations of this Ordinance are being complied with.

Part IV

Sales of Liquor

§ 16.007 Licenses Required

No sales of alcoholic beverages shall be made, except at a tribally-licensed or tribally-owned business operated on Samish Indian Nation lands within the State of Washington.

§ 16.008 Sales for Cash

All liquor sales within the Samish Indian Nation lands boundaries shall be on a cash only basis and no credit shall be extended to any person, organization, or entity, except that this provision does not prevent the use of major credit cards.

§ 16.009 Sale for Personal Consumption

All sales shall be for the personal use and consumption of the purchaser. Resale of any alcoholic beverage purchased within the exterior boundaries of the Samish Indian Nation lands is prohibited. Any person who is not licensed pursuant to this Ordinance who purchases an alcoholic beverage within the boundaries of the Samish Indian Nation lands and sells it, whether in the original container or not, shall be guilty of a violation of this Ordinance and shall be subjected to paying damages to the Samish Indian Nation as set forth herein.

Part V

Licensing

§ 16.010 Requirements for Application for Tribal Liquor License

No individual tribal license shall issue under this Ordinance except upon a sworn application filed with the Tribal Council, or their designated representative, containing a full and complete showing of the following:

(a) Satisfactory proof that the applicant is or will be duly licensed by the State of Washington.

(b) Satisfactory proof that the applicant is of good character and reputation among the people of the Samish Indian Nation and that the applicant is financially responsible.

(c) The description of the premises in which the intoxicating beverages are to be sold, proof that the applicant is the owner of such premises, or lessee of such premises, for at least the term of the license.

(d) Agreement by the applicant to accept and abide by all conditions of the tribal license.

(e) Payment of a license fee as prescribed by the Tribal Council.

(f) Satisfactory proof that the applicant has never been convicted of a felony.

(g) Satisfactory proof that notice of the application has been posted in a prominent, noticeable place on the premises where intoxicating beverages are to be sold for at least 30 days prior to consideration by the Tribal Council and has been published at least twice in such local newspaper serving the community that may be affected by the license. The notice shall state the date, time, and place when the application shall be considered by the Tribal Council pursuant to Section 16.011 of this Ordinance.

§ 16.011 Hearing on Application for Tribal Liquor License

All applications for a tribal liquor license shall be considered by the Tribal Council in open session at which the applicant, his/her attorney, and any person protesting the application shall have the right to be present, and to offer sworn oral or documentary evidence relevant to the application. After the hearing, the Tribal Council, by secret ballot, shall determine whether to grant or deny the application based on:

1. Whether the requirements of Section 16.010 have been met; and

2. Whether the Tribal Council, in its discretion, determines that granting the license is in the best interest of the Samish Indian Nation.

In the event that the applicant is a member of the Tribal Council, or a member of the immediate family of a Tribal Council member, such member shall not vote on the application or participate in the hearings as a Tribal Council member.

§ 16.012 Temporary Permits

The Tribal Council or its designee may grant a temporary permit for the sale of intoxicating beverages for a period not to exceed three (3) days to any person applying for the same in connection with a tribal or community activity, provided that the conditions prescribed in Section 16.013 of this Ordinance shall be observed by the permittee. Each permit issued shall specify the types of intoxicating beverages to be sold. Further, a fee, as set by the Tribal Council, will be assessed on temporary permits.

§ 16.013 Conditions of the Tribal License

Any tribal license issued under this Ordinance shall be subject to such reasonable conditions as the Tribal Council shall fix, including, but not limited to the following:

(a) The license shall be for a term not to exceed 2 years;

(b) The licensee shall at all times maintain an orderly, clean, and neat establishment, both inside and outside the licensed premises;

(c) The licensed premises shall be subject to patrol by the tribal police department, and such other law enforcement officials as may be authorized under applicable law;

(d) The licensed premises shall be open to inspection by duly authorized tribal officials at all times during the regular business hours;

(e) Subject to the provisions of subsection (g) to this section, no intoxicating beverages shall be sold, served, disposed of, delivered or given to any person, or consumed on the licensed premises except in conformity with the hours and days prescribed by the laws of the State of Washington, and in accordance with the hours fixed by the Tribal Council, provided that the licensed premises shall not operate or open earlier or operate or close later than is permitted by the laws of the State of Washington.

(f) No liquor shall be sold within 200 feet of a polling place on tribal election days, or when a referendum is held of the people of the Samish Indian Nation, and including special days of observance as designated by the Tribal Council.

(g) All acts and transactions under authority of the tribal liquor license shall be in conformity with the laws of the State of Washington, as required by federal law, and shall be in accordance with this ordinance and any tribal license issued pursuant to this Ordinance.

(h) No person under the age permitted under the laws of the State of Washington shall be sold, served, delivered, given, or allowed to consume alcoholic beverages in the licensed establishment and/or area.

(i) There shall be no discrimination in the operations under the tribal license by reason of race, color, or creed.

§ 16.014 License Not a Property Right

Notwithstanding any other provision of this ordinance, a tribal liquor license is a mere permit for a fixed duration of time. A tribal liquor license shall not be deemed a property right or vested right of any kind, nor shall the granting of a tribal liquor license give rise to a presumption of legal entitlement to the granting of such license for a subsequent time period.

§ 16.015 Assignment or Transfer

No tribal license issued under this Ordinance shall be assigned or transferred without the written approval of the Tribal Council expressed by formal resolution.

Part VI

Rules, Regulations and Enforcement

§ 16.016 Sales or Possession With Intent To Sell Without a Permit

Any person who shall sell or offer for sale or distribute or transport in any manner, any liquor in violation of this ordinance, or who shall operate or shall have liquor in his/her possession with intent to sell or distribute without a permit, shall be guilty of a violation of this Ordinance.

§ 16.017 Purchases From Other Than Licensed Facilities

Any person within the boundaries of Samish Indian Nation lands who buys liquor from any person other than at a properly licensed facility shall be guilty of a violation of this Ordinance.

§ 16.018 Sales to Persons Under the Influence of Liquor

Any person who knowingly sells liquor to a person apparently under the influence of liquor shall be guilty of violation of this Ordinance. Under the influence means a person who demonstrates physical signs of intoxication. Signs of intoxication included lack of physical coordination, carelessness or clumsiness with money, clumsy with cigarette handling, unsteady walking, behavior changes and changes in speech pattern. A person cannot legally drive and is legally intoxicated if his or her blood alcohol concentration is .08 percent or above. A person need not be legally intoxicated to be considered “under the influence” under this Ordinance.

§ 16.019 Consuming Liquor in Public Conveyance

Any person engaged wholly or in part in the business of carrying passengers for hire, and every agent, servant or employee of such person who shall knowingly permit any person to drink any liquor in any public conveyance shall be guilty of a violation of this Ordinance. Any person who shall drink any liquor in a public conveyance shall be guilty of a violation of this Ordinance.

§ 16.020 Consumption or Possession of Liquor by Persons Under 21 Years of Age

No person under the age of 21 years shall consume, acquire or have in his/her possession any alcoholic beverage. No person shall permit any other person under the age of 21 to consume liquor on his/her premises or any premises under his/her control except in those situations set out in this section. Any person violating this section shall be guilty of a separate violation of this Ordinance for each and every drink so consumed.

§ 16.021 Sales of Liquor to Persons Under 21 Years of Age

Any person who shall sell or provide liquor to any person under the age of 21 years shall be guilty of a violation of this Ordinance for each sale or drink provided.

§ 16.022 Transfer of Identification to Minor

Any person who transfers in any manner an identification of age to a minor for the purpose of permitting such minor to obtain liquor shall be guilty of an offense; provided, that corroborative testimony of a witness other than the minor shall be a requirement of finding a violation of this ordinance.

§ 16.023 Use of False or Altered Identification

Any person who attempts to purchase an alcoholic beverage through the use of false or altered identification, which falsely purports to show the individual to be over the age of 21 years shall be guilty of violating this Ordinance.

§ 16.024 Violation of This Ordinance

Any person guilty of a violation of this Ordinance shall be liable to pay the Samish Indian Nation a penalty not to exceed $500 per violation as civil damages to defray the Samish Indian Nation's cost of enforcement of this Ordinance. In addition to any penalties so imposed, any license issued hereunder may be suspended or canceled by the Tribal Council for the violation of any of the provisions of this Ordinance, or of the tribal license, upon hearing before the Tribal Council after 10 days notice to the licensee. The decision of the Tribal Council shall be final.

§ 16.025 Acceptable Identification

Where there may be a question of a person's right to purchase liquor by reason of his/her age, such person shall be required to present any one of the following issued cards of identification which shows his/her correct age and bears his/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.

§ 16.026 Possession of Liquor Contrary to This Ordinance

Alcoholic beverages which are possessed contrary to the terms of this Ordinance are declared to be contraband. Any tribal agent, employee, or officer who is authorized by the Tribal Council to enforce this section shall have the authority to and shall seize, all contraband.

§ 16.027 Disposition of Seized Contraband

Any officer seizing contraband shall preserve the contraband in accordance with applicable law. Upon being found in violation of the Ordinance by the Tribal Council, the party shall forfeit all right, title and interest in the items seized which shall become the property of the Samish Indian Nation.

Part VII

Abatement

§ 16.028 Nuisance

Any room, house, building, vehicle, structure, or other place where liquor is sold, manufactured, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this Ordinance or of any other tribal law relating to the manufacture, importation, transportation, possession, distribution, and sale of liquor, and all property kept in and used in maintaining such place, is hereby declared to be a nuisance.

§ 16.029 Tribal Court Action

The Chairman of the Tribal Council or, if the Chairman fails or refuses to do so, by a majority vote, the Tribal Council shall institute and maintain an action in the Tribal Court in the name of the Tribe to abate and perpetually enjoin any nuisance declared under this article. In addition to other remedies at tribal law, the Tribal Court may also order the room, house, building, vehicle, structure, or place closed for a period of one (1) year or until the owner, lessee, tenant, or occupant thereof shall give bond of sufficient sum from $1,000 to $15,000, depending upon the severity of past offenses, the risk of offenses in the future and any other appropriate criteria, payable to the Tribe and conditioned that liquor will not be thereafter manufactured, kept, sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this Ordinance or of any other violation of this Ordinance or other tribal liquor laws. If any conditions of the bond be violated, the bond may be applied to satisfy any amounts due to the Tribe under this Ordinance.

§ 16.030 Prima Facie Evidence of Nuisance

In all cases where any person has been found in violation of this Ordinance relating to the manufacture, importation, transportation, possession, distribution, and sale of liquor, an action may be brought to abate as a nuisance any real estate or other property involved in the violation of the Ordinance and violation of this Ordinance shall be prima facie evidence that the room, house, building, vehicle, structure, or place against which such action is brought is a public nuisance.

Part VIII

Taxes

§ 16031 Sales Tax

The Tribal Council shall have the authority, by regulation, to levy and collect a sales tax on each sale of alcoholic beverages on the Samish Indian Nation lands. The amount of such tax shall be set by regulation, shall include credit card payments, and shall include all retail sales of liquor on the Samish Indian Nation lands.

§ 16.032 Payment of Taxes to Tribe

All taxes from the sale of alcoholic beverages on the Samish Indian Nation lands shall be paid over to the agent of the Samish Indian Nation.

§ 16.033 Taxes Due

All taxes for the sale of alcoholic beverages on the Samish Indian Nation lands are due within thirty (30) days of the end of the calendar quarter for which the taxes are due.

§ 16.034 Reports

Along with payment of the taxes imposed herein, the taxpayers shall submit an accounting for the quarter of all income from the sale or distribution of said beverages as well as for the taxes collected.

§ 16.035 Audit

As a condition of obtaining a license, the licensee must agree to the review or audit of its books and records relating to the sale of alcoholic beverages on the Samish Indian Nation lands. Said review or audit may be done annually by the Tribe through its agents or employees whenever, in the opinion of the Tribal Council, such a review or audit is necessary to verify the accuracy of reports.

Part VIII

Revenue

§ 16.036 Revenue

Revenue provided for under this Ordinance, from whatever source, shall be expended for administrative costs incurred in the enforcement of this Ordinance. Excess funds shall be subject to appropriation by the Tribal Council for essential governmental and social services.

Part IX

Severability and Effective Date

§ 16.037 Severability and Effective Date

If any provision or application of this Ordinance is determined by review to be invalid, such determination shall not be held to render ineffectual the remaining portions of this Ordinance or to render such provisions inapplicable to other persons or circumstances.

This Ordinance shall be effective on such date as the Secretary of the Interior certifies this Ordinance and publishes the same in the Federal Register. Any and all prior liquor control enactments of the Tribal Council, which are inconsistent with the provisions of this Ordinance are hereby rescinded.

Part X

Amendment and Construction

§ 16.038

This ordinance may only be amended by a vote of the Tribal Council, the governing body of the Samish Indian Nation and shall be effective upon approval of the Assistant Secretary-Indian. Nothing in this Ordinance shall be construed to diminish or impair in any way the rights or sovereign powers of the Samish Indian Nation or its tribal government.

Part XI

Sovereign Immunity

§ 16.039

Nothing contained in this Ordinance is intended to, nor does in any way limit, alter, restrict, or waive the Tribe's sovereign immunity from unconsented suit.

Certification

The foregoing ordinance was amended by the Samish Tribal Council at a Regular Council meeting held on the 18th day of November, 2004 at which a quorum was present, and the ordinance was amended by a vote of 5 FOR, 0 AGAINST, and 0 ABSTAINING.

Samish Tribal Council.

Kenneth C. Hansen,

Tribal Chairman.