06-5447. Liquor Control Ordinance of the Ottawa Tribe of Oklahoma

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes the Liquor Control Ordinance of the Ottawa Tribe of Oklahoma (Tribe). The Ordinance regulates and controls the possession, sale and consumption of liquor within the tribal lands of the Tribe. The tribal lands are located on trust land and this Ordinance allows for possession and sale of alcoholic beverages within its exterior boundaries. 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 June 16, 2006.

FOR FURTHER INFORMATION CONTACT:

Charles Head, Tribal Government Services Officer, Eastern Oklahoma Regional Office, 3100 W. Peak Blvd., Muskogee, OK 74402, Telephone: [phone], Fax: [phone]; or Ralph Gonzales, Office of Tribal Services, 1849 C Street, NW., Room 4513-MIB, Washington, DC 20240, Telephone: [phone].

SUPPLEMENTARY INFORMATION:

Pursuant to the Act of August 15, 1953, Public Law 83-277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in Rice v. Rehner, 463 U.S. 713 (1983), the Secretary of the Interior shall certify and publish in the Federal Register notice of adopted liquor ordinances for the purpose of regulating liquor transactions in Indian country. The Business Committee of the Ottawa Tribe of Oklahoma (Business Committee) adopted its Liquor Ordinance by Resolution No. 2005-31 on December 15, 2005, which is the first Liquor Ordinance passed by the Tribe. The purpose of this Ordinance is to govern the sale, possession and distribution of alcohol within tribal lands of the Tribe.

This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Principal Deputy Assistant Secretary—Indian Affairs. I certify that this Liquor Ordinance of the Ottawa Tribe of Oklahoma was duly adopted by the Business Committee on December 15, 2005.

Dated: June 8, 2006.

Michael D. Olsen,

Acting Principal Deputy Assistant Secretary—Indian Affairs.

The Ottawa Tribe of Oklahoma Liquor Ordinance reads as follows:

Liquor Control Ordinance of the Ottawa Tribe of Oklahoma

Section One: Purposes and Public Policy

1.1 The Ottawa Tribal Business Committee, in accordance with Article VI of the Constitution and By-Laws of the Ottawa Tribe of Oklahoma, is authorized to enact resolutions, regulations, and ordinances, and act on behalf of the Ottawa Tribe.

1.2 The Business Committee finds that tribal control and regulation of liquor is necessary to protect the health and welfare of tribal members, to address specific concerns relating to alcohol use on tribal lands, and to achieve maximum economic benefit to the tribe.

1.3 The introduction, possession, and sale of alcohol on tribal lands is a matter of special concern to the Business Committee.

1.4 The Business Committee finds that a complete ban of alcohol on tribal lands is unrealistic and would be ineffective in accomplishing the stated purposes of this Ordinance. However, due to the many problems and potential problems associated with the unregulated or inadequately regulated sale, distribution, and possession of alcohol, the Business Committee recognizes the need for strict regulation and control over liquor transactions on tribal lands.

1.5 Federal law prohibits the introduction, possession, and sale of liquor in Indian Country except when the same is in conformity with the laws of both the State and the Tribe (18 U.S.C. 1161). Therefore, compliance with this Ordinance shall be in addition to, rather than a substitute for, compliance with the laws of the State of Oklahoma.

1.6 This Ordinance governs the sale, purchase, and distribution of alcohol on Tribal lands within the exterior boundaries of the former reservation.

Section Two: Definitions

As used in this Ordinance, the terms below shall have these meanings unless the context clearly requires otherwise:

2.1 Alcohol. That substance known as ethyl alcohol, hydrated oxide of ethyl alcohol, ethanol, spirits of wine, or the like, from whatever source or by whatever process produced.

2.2 Alcoholic Beverage. Synonymous with the term liquor as defined in Section 1.6.

2.3 Bar. Any establishment with special space and accommodations for the sale of liquor by the glass and for consumption on the premises as defined here.

2.4 Beer. Any beverage obtained by the alcoholic fermentation of an infusion or decoction of pure hops, or pure extract of hops and pure barley malt or other wholesome grain or cereal in pure water and containing the percent of alcohol by volume subject to regulation as an intoxicating beverage in the state where the beverage is located.

2.5 Business Committee. The governing body of the Ottawa Tribe of Oklahoma, as defined in the Tribal Constitution.

2.6 Liquor. All fermented, spirituous, vinous, or malt liquor or combinations thereof, and mixed liquor, a part of which is fermented, and every liquid or solid or semisolid or other substance, patented or not, containing distilled or rectified spirits, potable alcohol, beer, wine, brandy, whiskey, rum, gin, aromatic bitters, and all drinks or drinkable liquids and all preparations or mixtures capable of human consumption and any liquid, solid, semisolid, or other substances which contain more than one-half of one percent of alcohol by volume.

2.7 Liquor Control Board. The Ottawa Liquor Control Board as established by Section Three of this Ordinance.

2.8 Liquor Store. Any store at which liquor is sold and, for the purpose of this Ordinance, includes stores where only a portion of sales consist of liquor or beer.

2.9 Malt Liquor. Beer, strong beer, ale, stout, or porter.

2.10 Package. Any container or receptacle used for holding liquor.

2.11 Public Place. Federal, State, county, or tribal highways and roads; buildings and grounds used for school purposes; public dance halls and grounds adjacent thereto; soft drink establishments, public buildings, public meeting halls, lobbies, halls and dining rooms of hotels, restaurants, and theaters, gaming facilities, entertainment centers, stores, garages, and filling stations which are open to and/or generally used by the public and to which the public is permitted to have generally unrestricted access; public conveyances of all kinds and character; and all other places of like or similar nature to which the general public has unrestricted right of access, and which are generally used by the public.

2.12 Sale. The exchange, barter, and traffic, including 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 of wine by any person to any person.

2.13 Spirits. Any beverage which contains alcohol obtained by distillation, including all wines exceeding seventeen percent of alcohol by weight.

2.14 Tribal Court. Refers to the Ottawa Tribal Court or the Court of Indian Offenses, more specifically designated for purposes of this Ordinance as 25 CFR Court located at the Miami Agency of the Bureau of Indian Affairs in Miami, Oklahoma.

2.15 Tribal Lands. Any or all lands over which the Tribe exercises governmental power and that is either held in trust by the United States for the benefit of the Tribe or individual members of the Tribe, or held by the Tribe or individual members of the Tribe subject to restrictions by the United States against alienation.

2.16 Wine. Any alcoholic beverage obtained by fermentation of the natural contents of fruits, vegetables, honey, milk, or other products containing sugar, whether or not other ingredients are added, 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 the like, not exceeding seventeen percent of alcohol by weight.

Section Three: Ottawa Liquor Control Board

3.1 There is hereby established an Ottawa Liquor Control Board, composed of a Chairperson, Vice-Chairperson, Secretary/Treasurer, and two additional members.

3.2 The Liquor Control Board shall consist of the officers and members of the Ottawa Business Committee.

3.3 Officers and members of the Business Committee shall hold the same positions on the Liquor Control Board as such officers and members hold on the Business Committee. The Principal Chief shall serve as the Liquor Control Board Chairperson; the Second Chief shall serve as the Vice-Chairperson of the Liquor Control Board; and the Secretary/Treasurer of the Business Committee shall serve as Secretary/Treasurer of the Liquor Control Board.

3.4 The Liquor Control Board shall meet on call, but not less than once each quarter of the calendar year, upon public notice of the meeting. The Chairman of the Liquor Control Board shall call meetings of the Liquor Control Board.

3.5 A quorum of the Liquor Control Board shall consist of three members. A quorum must be present in order to transact business.

Section Four: Powers and Duties of the Board

4.1 Powers and Duties. In furtherance of this Ordinance, the Liquor Control Board shall have the following powers and duties:

A. Publish and enforce rules and regulations adopted by the Business Committee governing the sale, manufacture, distribution, and possession of alcoholic beverages on tribal lands.

B. Employ managers, accountants, security personnel, inspectors, and such other persons as shall be reasonably necessary to allow the Liquor Control Board to perform its functions.

C. Issue licenses permitting the sale or manufacture or distribution of liquor on tribal lands.

D. Hold hearings on violations of this Ordinance or for the revocation of licenses hereunder.

E. Bring suit in Tribal Court or other appropriate court to enforce this Ordinance as necessary.

F. Determine and seek damages for violation of this Ordinance.

G. Make such reports as may be required by the Business Committee.

H. Collect taxes and fees levied or set by the Business Committee and keep accurate records, books, and accounts.

I. Adopt procedures which supplement these regulations and facilitate their enforcement. Such procedures shall include limitations on sales to minors, places where liquor may be consumed, identity of persons not permitted to purchase alcoholic beverages, hours and days when outlets may be open for business, and other appropriate matters and controls.

4.2 Limitations on Powers. In the exercise of its powers and duties under this Ordinance, the Liquor Control Board and its members shall not:

A. Accept any gratuity, compensation, or other thing of value from any liquor wholesaler, retailer, or distributor, or from any licensee.

B. Waive the immunity of the Ottawa Tribe of Oklahoma from suit without the express written consent and resolution of the Business Committee.

4.3 Inspection Rights. The premises on which liquor is sold or distributed shall be open for inspection by the Liquor Control Board and/or its staff at all reasonable times for the purposes of ascertaining whether the rules and regulations of the Business Committee and this Ordinance are being complied with.

Section Five: Sales of Liquor

5.1 License Required. A person or entity who is licensed by the Ottawa Tribe of Oklahoma may make retail sales of liquor in their facility and the patrons of the facility may consume said liquor within the facility. The introduction and possession of liquor consistent with this Section shall also be allowed. All other purchases and sales of liquor on tribal lands shall be prohibited. Sales of liquor and alcoholic beverages on tribal lands may only be made at businesses that hold an Ottawa Liquor License.

5.2 Sales for Cash. All liquor sales on tribal lands 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 payment for purchases with use of credit cards such as Visa, MasterCard, American Express, and the like.

5.3 Sale for Personal Consumption. All sales shall be for the personal use and consumption of the purchaser. Resale of any alcoholic beverages on tribal lands is prohibited. Any person who is not licensed pursuant to this Ordinance who purchases an alcoholic beverage on tribal 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 the payment of damages to the Ottawa Tribe of Oklahoma as set forth herein.

Section Six: Licensing and Application

6.1 Procedure. In order to control the proliferation of establishments on tribal lands that sell or serve liquor by the bottle or by the drink, all persons or entities that desire to sell liquor on tribal lands must apply to the Ottawa Liquor Control Board for a license to sell or serve liquor.

6.2 Application. Any enrolled member of the Ottawa Tribe of Oklahoma twenty-one (21) years of age or older, or an enrolled member of another Federally recognized tribe twenty-one (21) years of age or older, or other person twenty-one (21) years of age and older, may apply to the Liquor Control Board for a license to sell or serve liquor. Any person or entity applying for a license to sell or serve liquor on tribal lands must fill in the application provided for this purpose by the Ottawa Tribe of Oklahoma and pay such application fee as may be set by the Liquor Control Board. Said application must be filled out completely in order to be considered. A separate application and license will be required for each location where the applicant intends to serve liquor.

6.3 Licensing Requirements. The person applying for such license must make a showing once per year and must satisfy the Liquor Control Board that:

A. He/she is a person of good character, having never been convicted of violating any of the laws prohibiting the traffic in any spirituous, vinous, fermented, or malt liquors;

B. He/she has never been convicted of violating any of the gambling laws of this state or of any other state of the United States, or of this or any other Tribe;

C. He/she has not had, preceding the date of his/her application for a license, a felony conviction of any of the laws commonly called “Prohibition Laws;” and

D. He/she has not had any permit or license to sell any intoxicating liquors revoked in any county of this state, or any other state, or of any Tribe.

6.4 Processing of Application. The Liquor Control Board shall receive and process applications and related matters. All actions by the Liquor Control Board shall be by majority vote. A quorum of the Liquor Control Board is that number of members set forth in Section 3.5 of this Ordinance. The Liquor Control Board may, by resolution, authorize a staff representative to issue licenses for the sale of liquor and beer products.

6.5 Issuance of Licenses. The Liquor Control Board may issue a license if it believes that such issuance is in the best interests of the Ottawa Tribe of Oklahoma. The purpose of this Ordinance is to permit liquor sales and consumption at facilities located on designated tribal lands. Issuance of a license for any other purposes will not be considered to be in the best interest of the Ottawa Tribe of Oklahoma.

6.6 Period of License. Each license shall be issued for a period not to exceed one year from the date of issuance.

6.7 Renewal of License. A licensee may renew its license if the licensee has complied in full with this Ordinance; provided, however, that the Liquor Control Board may refuse to renew a license if it finds that doing so would not be in the best interests of health and safety of the Ottawa Tribe of Oklahoma.

6.8 Revocation of License. The Liquor Control Board may suspend or revoke a license due to one or more violations of this Ordinance upon notice and hearing, at which the licensee is given an opportunity to respond to any charges against it and to demonstrate why the license should not be suspended or revoked.

6.9 Hearings. Within fifteen (15) days after a licensee is mailed written notice of a proposed license suspension or revocation of the license, of the imposition of fines or of other adverse action proposed by the Liquor Control Board under this Ordinance, the licensee may deliver to the Liquor Control Board a written request for a hearing on whether the proposed action should be taken. A hearing on the issues shall be held before a person or persons appointed by the Liquor Control Board and a written decision shall be issued. Such decisions will be considered final unless an appeal is filed with the Tribal Court within fifteen (15) calendar days of the date of mailing the decision to the licensee. The Tribal Court will then conduct a hearing and will issue an order, which is final with no further right of appeal. All proceedings conducted under all sections of this Ordinance shall be in accord with due process of law.

6.10 Non-Transferability of Licenses. Licenses issued by the Liquor Control Board shall not be transferable and may only be utilized by the person or entity in whose name it is issued.

Section Seven: Taxes

7.1  As a condition precedent to the conduct of any operations pursuant to a license issued by the Liquor Control Board, the licensee must obtain from the Ottawa Tribe Tax Commission such license, permits, tax stamps, tags, receipts, or other documents or things evidencing receipt of any license or payment of any tax or fee administered by the Ottawa Tribe Tax Commission or otherwise showing compliance with the tax laws of the Tribe.

7.2 In addition to any other remedies provided in this Ordinance, the Liquor Control Board may suspend or revoke any licenses issued by it upon the failure of the licensee to comply with the obligations imposed upon the licensee by the General Revenue and Taxation Act of the Ottawa Tribe of Oklahoma, or any rule, regulation, or order of the Ottawa Tribe Tax Commission.

Section Eight: Rules, Regulations, and Enforcement

8.1 In any proceeding under this Ordinance, conviction of one unlawful sale or distribution of liquor shall establish prima facie intent of unlawfully keeping liquor for sale, selling liquor, or distributing liquor in violation of this Ordinance.

8.2 Any person who shall in any manner sell or offer for sale or distribution or transport, liquor, in violation of this Ordinance, shall be subject to civil damages assessed by the Liquor Control Board.

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

8.4 Any person who keeps or possesses liquor upon his person or in any place or on premises conducted or maintained by his principal or agent with the intent to sell or distribute it contrary to the provisions of this Section shall be guilty of a violation of this Ordinance.

8.5 Any person who knowingly sells liquor to a person who is obviously intoxicated or appears to be intoxicated shall be guilty of a violation of this Ordinance.

8.6 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 liquor in any public conveyance shall be guilty of violating this Ordinance. Any person who shall drink liquor in a public conveyance shall be guilty of a violation of this Ordinance.

8.7 No person under the age of twenty-one (21) years shall consume, acquire, or have in his/her possession any liquor or alcoholic beverage. No person shall permit any other person under the age of twenty-one (21) years to consume liquor on his/her premises or any premises under his/her control. Any person violating this prohibition shall be guilty of a separate violation of this Ordinance for each and every drink so consumed.

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

8.9 Any person who transfers in any manner an identification of age to a person under the age of twenty-one (21) years for the purpose of permitting such person to obtain liquor shall be guilty of an offense; provided that corroborative testimony of a witness other than the underage person shall be a requirement of finding a violation of this Ordinance.

8.10 Any person who attempts to purchase an alcoholic beverage through the use of false or altered identification that falsely purports to show the individual to be over the age of twenty-one (21) years shall be guilty of violating this Ordinance.

8.11 Any person who is convicted or pleads guilty to a violation of this Ordinance shall be liable to pay the Ottawa Tribe of Oklahoma an amount of up to $1,000 per violation as civil damages to defray the Tribe's cost of enforcement of this Ordinance.

8.12 When requested by the provider of liquor, any person shall be required to present official documentation of the bearer's age, signature, and photograph. Official documentation includes one of the following:

A. Driver's license or identification card issued by any state department of motor vehicles;

B. United States Active Duty Military Identification Card; or

C. Passport.

8.13 The consumption or possession of liquor on premises where such consumption or possession is contrary to the terms of this Ordinance will result in a declaration that such liquor is contraband. Any tribal agent, employee, or officer who is authorized by the Liquor Control Board to enforce this Ordinance shall seize all contraband and preserve it in accordance with provisions established for the preservation of impounded property. Upon being found in violation of this Ordinance, the party owning or in control of the premises where contraband is found shall forfeit all right, title, and interest in the items seized which shall become the property of the Ottawa Tribe of Oklahoma.

Section Nine: Abatement

9.1 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 an used in maintaining such place, is hereby declared a nuisance.

9.2 The Chairman of the Liquor Control Board, or, if the Chairman fails or refuses to do so, the Liquor Control Board, by a majority vote, shall institute and maintain an action in the Tribal Court in the name of the Ottawa Tribe of Oklahoma to abate and perpetually enjoin any nuisance declared under this Section. 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 year or until the owner, lessee, tenant, or occupant thereof shall give bond or sufficient sum from $1,000 to $15,000 depending upon the severity of the offense, past offenses, the risk of future offenses, and any other appropriate criteria, payable to the Tribe and conditioned that liquor will not thereafter be manufactured, kept, sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this Ordinance or of any other applicable tribal laws.

If any conditions of the bond are violated, the bond may be applied to satisfy any amounts due to the Tribe under this Ordinance.

Section Ten: Severability and Effective Date

10.1 If any provision under this Ordinance is determined by court 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.

10.2 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.

10.3 Any and all previous liquor control enactments of the Business Committee which are inconsistent with this Ordinance are hereby rescinded.

Section Eleven: Amendment and Construction

11.1 This Ordinance may only be amended by vote of the Ottawa Business Committee.

11.2 Nothing in this Ordinance shall be construed to diminish or impair in any way the rights or sovereign powers of the Ottawa Tribe or its Tribal Government other than the due process provision of Section 6.9 which provides that licensees whose licenses have been revoked or suspended may seek review of that decision in Tribal Court.

11.3 The foregoing Liquor Control Ordinance of the Ottawa Tribe of Oklahoma was duly enacted and approved by the Business Committee of the Ottawa Tribe of Oklahoma this 8th day of December 2005.

Charles A. Todd,

Principal Chief.

Bert Kleidon,

Secretary/Treasurer.