[Federal Register Volume 60, Number 122 (Monday, June 26, 1995)]
[Notices]
[Pages 33068-33071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15529]
[[Page 33067]]
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Part III
Department of the Interior
_______________________________________________________________________
Bureau of Indian Affairs
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The Twenty-Nine Palms Band of Mission Indians Liquor Control Ordinance;
Notice
Federal Register / Vol. 60, No. 122 / Monday, June 26, 1995 / Notices
[[Page 33068]]
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
The Twenty-Nine Palms Band of Mission Indians Liquor Control
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 DM8, and in accordance with the Act of August 15,
1953, 67 Stat 586, 18 U.S.C. 1161. I certify that the Twenty-Nine Palms
Band of Mission Indians Liquor Ordinance was duly adopted by the
Twenty-Nine Palms Band of Mission Indians on October 6, 1994, and
amended twice, by resolution No. 950608 of June 8, 1995, and by
resolution No. 950615A of June 15, 1995. The Ordinance provides for the
regulation, distribution, possession, sale, and consumption of liquor
on lands held in trust belonging to the Twenty-Nine Palms Band of
Mission Indians.
DATES: This ordinance is effective as of June 26, 1995.
FOR FURTHER INFORMATION CONTACT: Chief, Branch of Judicial Services,
Division of Tribal Government Services, 1849 C Street, NW., MS 2611-
MIB, Washington, DC 20240-4001; telephone 202/208-4400.
SUPPLEMENTARY INFORMATION: The Twenty-Nine Palms Band of Mission
Indians Liquor Control Ordinance is to read as follows:
Liquor Ordinance of the Twenty-Nine Palms Band of Mission Indians
Chapter I--Introduction
101. Title. This ordinance shall be known as the ``Liquor ordinance of
the Twenty-Nine Palms Band of Mission Indians.''
102. Authority. This ordinance is enacted pursuant to the Act of August
15, 1953 (Pub. L. 83-277, 67 Stat. 588, 18 U.S.C. 1161) and Article
6A(5) of the Twenty-Nine Palms Band of Mission Indians Articles of
Association.
103. Purpose. The purpose of this ordinance is to regulate and control
the possession and sale of liquor on the Twenty-Nine Palms Indian
Reservation. The enactment of a tribal ordinance governing liquor
possession and sale on the reservation will increase the ability of the
tribal government to control reservation 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 government services.
Chapter II--Definitions
201. As used in this ordinance, the following words shall have the
following meanings unless the context clearly requires otherwise.
202. ``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.
203. ``Alcoholic Beverage.'' Is synonymous with the term ``Liquor'' as
defined in Section 208 of this Chapter.
204. ``Bar.'' Means any establishment with special space and
accommodations for sale by the glass and for consumption on the
premises of beer, as herein defined.
205. ``Beer.'' Means 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 of cereal in pure
water containing not more than four percent of alcohol by volume. For
the purposes of this title, any such beverage, including ale, stout,
and porter, containing more than four percent of alcohol by weight
shall be referred to as ``strong beer.''
206. ``Committee.'' Means the Business Committee of the Twenty-nine
Palms Band of Mission Indians.
207. ``General Council.'' Means the general council of the Twenty-nine
Palms Band of Mission Indians which is composed of the voting
membership of the Tribe as a whole.
208. ``Liquor.'' Includes 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.
209. ``Liquor Store.'' Means any store at which liquor is sold and, for
the purposes of this ordinance, including stores only a portion of
which are devoted to sale of liquor or beer.
210. ``Malt Liquor.'' Means beer, strong beer, ale stout, and porter.
211. ``Package.'' Means any container or receptacle used for holding
liquor.
212. ``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 unrestricted 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.
213. ``Reservation.'' Means land held in trust by the United States
Government for the benefit of the Twenty-nine Palms Band of Mission
Indians (see also Tribal Land).
214. ``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.
215. ``Spirits.'' Means any beverage, which contains alcohol obtained
by distillation, including wines exceeding seventeen percent of alcohol
by weight.
216. ``Tribe.'' Means the Twenty-nine Palms Band of Mission Indians.
217. ``Tribal Land.'' Means any land within the exterior boundaries of
the Reservation which is held in trust by the United States for the
Tribe as a whole, including and such land leased to other parties.
[[Page 33069]]
218. ``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.
219. ``Trust Account.'' Means the account designated by the tribal
treasurer for deposit of proceeds from the tax from the sale of
alcoholic beverages.
220. ``Trust Agent.'' Means the tribal Chairperson or a designee of the
Chairperson.
Chapter III--Powers of Enforcement
301. Powers. The Committee, in furtherance of this ordinance, shall
have the following powers and duties:
a. To publish and enforce the rules and regulations governing the
sale, manufacture, and distribution of alcoholic beverages on the
Reservation;
b. To employ managers, accountants, security personnel, inspectors,
and such other persons as shall be reasonably necessary to allow the
Committee to perform its functions. Such employees shall be tribal
employees;
c. To issue licenses permitting the sale or manufacture or
distribution of liquor on the Reservation;
d. To hold hearings on violations of this ordinance or for the
issuance or revocation of licenses hereunder;
e. To bring suit in the appropriate court to enforce this ordinance
as necessary;
f. To determine and seek damages for violation of this ordinance;
g. To make such reports as may be required by the General Council;
h. To collect taxes and fees levied or set by the Committee, and to
keep accurate records, books and accounts; and
i. To exercise such other powers as are delegated by the General
Council.
302. Limitation on Powers. In the exercise of its powers and duties
under this ordinance, the Committee 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.
303. Inspection Rights. The premises on which liquor is sold or
distributed shall be open for inspection by the Committee at all
reasonable times for the purposes of ascertaining whether the rules and
regulations of this ordinance are being complied with.
Chapter IV--Sales of Liquor
401. Licenses Required. No sales of alcoholic beverages shall be made
within the exterior boundaries of the Reservation, except at a
tribally-licensed or tribally-owned business operated on tribal land
within the exterior boundaries of the Reservation.
402. Sales Only on Tribal Land. All liquor sales within the exterior
boundaries of the Reservation shall be on Tribal Land, including leases
thereon.
403. Sales for Cash. All liquor sales within the Reservation 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 such as Visa, American Express,
etc.
404. 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 Reservation is
prohibited. Any person who is not licensed pursuant to this ordinance
who purchases an alcoholic beverage within the boundaries of the
Reservation 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 Tribe as set forth herein.
Chapter V--Licensing
501. Applicable for Tribal Liquor License Requirements. No tribal
license shall issue under this ordinance except upon a sworn
application filed with the Committee 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 California.
b. Satisfactory proof that the applicant is of good character and
reputation among the people of the Reservation 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 $250.00 fee as prescribed by the Committee.
f. Satisfactory proof that neither the applicant nor the
applicant's spouse has ever 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 Committee and has been published at least twice in
such local newspaper serving the community that may be affected by the
license of the Tribal Chairman or Secretary may authorize. The notice
shall state the date, time, and place when the application shall be
considered by the Committee pursuant to section 502 of this ordinance.
502. Hearing on Application for Tribal Liquor License. All applications
for a tribal liquor license shall be considered by the Committee in
open session at which the applicant, his 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 Committee, by secret ballot, shall determine
whether to grant or deny the application based on:
(1) Whether the requirements of section 501 have been met; and
(2) Whether the Committee, in its discretion, determines that
granting the license is in the best interests of the Tribe.
In the event that the applicant is a member of the General Council, or
a member of the immediate family of a General Council member, such
member shall not vote on the application or participate in the hearings
as a Committee member.
503. Temporary Permits. The Committee or their 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 504 of this ordinance shall be
observed by the permittee. Each permit issued shall specify the types
of intoxicating beverages to be [[Page 33070]] sold. Further, a fee of
$25.00 will be assessed on temporary permits.
504. Conditions of the Tribal License. Any tribal license issued under
this title shall be subject to such reasonable conditions as the
Committee shall fix, including, but not limited to the following:
a. The license shall be for a term not to exceed 1 year.
b. The license shall at all times maintain an orderly, clean, and
neat establishment, both inside and outside the licensed premises.
c. The State of California shall have jurisdiction over offenses
and civil causes of action committed on the licensed premises to the
same extent that it has jurisdiction over offenses civil causes of
action committed elsewhere within California, and the California
criminal laws, and civil laws of general applicability to private
persons or private property, shall have the same force and effect on
the licensed premises as they have elsewhere in California.
d. The licensed premises shall be subject to patrol by the tribal
police department, and such other law enforcement officials as may be
authorized under federal, California, or tribal law.
e. The licensed premises shall be open to inspection by duly
authorized tribal officials at all times during the regular business
hours.
f. Subject to the provisions of subsection ``g'' of 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 California, and in accordance with the hours fixed by the
Committee, 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 California.
g. 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
Tribe, and including special days of observation as designated by the
Committee.
h. All acts and transactions under authority of the tribal liquor
license shall be in conformity with the laws of the State of
California, and shall be in accordance with this ordinance and any
tribal license issued pursuant to this ordinance.
i. No person under the age permitted under the laws of the State of
California shall be sold, served, delivered, given, or allowed to
consume alcoholic beverages in the licensed establishment and/or area.
j. There shall be no discrimination in the operations under the
tribal license by reason of race, color, or creed.
505. 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.
506. Assignment or Transfer. No tribal license issued under this
ordinance shall be assigned or transferred without the written approval
of the Committee expressed by formal resolution.
Chapter VI--Rules, Regulations, and Enforcement
601. 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 possession with intent to sell or
distribute without a permit, shall be guilty of a violation of this
ordinance.
602. Purchases From Other Than Licensed Facilities. Any person within
the boundaries of the Reservation who buys liquor from any person other
than at a properly licensed facility shall be guilty of a violation of
this ordinance.
603. Sales to Persons Under the Influence of Liquor. Any person who
sells liquor to a person apparently under the influence of liquor shall
be guilty of a violation of this ordinance.
604. 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 or such person who shall knowingly permit
any person to drink any liquor in any public conveyance shall be guilty
of an offense. Any person who shall drink any liquor in a public
conveyance shall be guilty of a violation of this ordinance.
605. 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 possession any alcoholic beverage. No person shall permit any
other person under the age of 21 to consume liquor on his premises or
any premises under his 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.
606. 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.
607. 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.
608. 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.
609. Violations of This Ordinance. Any person guilty of a violation of
this ordinance shall be liable to pay the Tribe a penalty not to exceed
$500 per violation as civil damages to defray the Tribe's cost of
enforcement of this ordinance. In addition to any penalties so imposed,
any license issued hereunder may be suspended or cancelled by the
Committee for the violation of any of the provisions of this ordinance,
or of the tribal license, upon hearing before the Committee after 10
days notice to the licensee. The decision of the Committee shall be
final.
610. Acceptable Identification. Where there may be a question of a
person's right to purchase liquor by reason of his age, such person
shall be required to present any one of the following issued cards of
identification which shows his correct age and bears his 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;
3. Passport [[Page 33071]]
611. 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 Committee to enforce this section shall have
the authority to, and shall seize, all contraband.
612. Disposition of Seized Contraband. Any officer seizing contraband
shall preserve the contraband in accordance with the appropriate
California law code. Upon being found in violation of the ordinance by
the Committee, the party shall forfeit all right, title and interest in
the items seized which shall become the property of the Tribe.
Chapter VII--Taxes
701. Sales Tax. There is hereby levied and shall be collected a tax on
each sale of alcoholic beverages on the Reservation in the amount of
one percent (1%) of the amount actually collected, including payments
by major credit cards. The tax imposed by this section shall apply to
all retail sales of liquor on the Reservation and shall preempt any tax
imposed on such liquor sales by the State of California.
702. Payment of Taxes to Tribe. All taxes from the sale of alcoholic
beverages on the Reservation shall be paid over to the trust agent of
the Tribe.
703. Taxes Due. All taxes for the sale of alcoholic beverages on the
Reservation are due within thirty (30) days of the end of the calendar
quarter for which the taxes are due.
704. Reports. Along with payment of the taxes imposed herein, the
taxpayer 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.
705. 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 Reservation. Said review or audit
may be done annually by the Tribe through its agents or employees
whenever, in the opinion of the Committee, such a review or audit is
necessary to verify the accuracy of reports.
Chapter VIII--Profits
801. Disposition of Proceeds. The gross proceeds collected by the
Committee from all licensing provided from the taxation of the sales of
alcoholic beverages on the Reservation shall be distributed as follows:
a. For the payment of all necessary personnel, administrative
costs, and legal fees for the operation and its activities.
b. The remainder shall be turned over to the Trust Account of the
Tribe.
Chapter IX--Severability and Miscellaneous
901. Severability. If any provision or application of this ordinance is
determined by review to be invalid, such adjudication shall not be held
to render ineffectual the remaining portions of this title or to render
such provisions inapplicable to other persons or circumstances.
902. Prior Enactments. And all prior enactments of the Committee which
are inconsistent with the provisions of this ordinance are hereby
rescinded.
903. Conformance with California Laws. All acts and transactions under
this ordinance shall be in conformity with the laws of the State of
California as that term is used in 18 U.S.C. 1161.
904. Effective Date. This ordinance shall be effective on June 26,
1995, such date as the Secretary of the Interior certifies this
ordinance and publishes the same in the Federal Register.
Chapter X--Amendment
1001. This ordinance may only be amended by a majority vote of the
General Council.
Chapter XI--Sovereign Immunity
1101. 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 or action.
Dated: June 16, 1995.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 95-15529 Filed 6-23-95; 8:45 am]
BILLING CODE 4310-02-P
