[Federal Register Volume 62, Number 142 (Thursday, July 24, 1997)]
[Notices]
[Pages 39855-39859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19410]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Confederated Tribes of Siletz Indians of Oregon Alcohol Beverage
Control Law
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. Sec. 1161. I certify that Resolutions
numbered 96-110, 97-064 and 97-211, Liquor Ordinance of the
Confederated Tribes of Siletz Indians, was duly adopted by the Siletz
Tribal Council on April 20, 1996 and February 16, 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 Confederated Tribes of Siletz
Indians of Oregon.
DATES: This Ordinance is effective July 24, 1997.
FOR FURTHER INFORMATION CONTACT: Bettie Rushing, Office of Tribal
Services, 1849 C Street NW, MS 4641-MIB, Washington, D.C. 20240-4001;
telephone (202) 208-4400.
SUPPLEMENTARY INFORMATION: The Confederated Tribes of Siletz Indians of
Oregon's Resolutions numbered 96-110 and 97-064 read as follows.
Liquor Ordinance of the Confederated Tribes of Siletz Indians of
Oregon, Chapter 14, Part I
Introduction
Section 14.01 Title
This Ordinance shall be known as the ``Liquor Ordinance of the
Confederated Tribes of Siletz Indians'' (hereinafter ``Siletz Tribe'').
This ordinance may be referred to as the ``Siletz Liquor Control
Ordinance.''
Section 14.02 Purpose and Authority
The purpose of this ordinance is to regulate and control the
possession and sale of liquor within Siletz Indian country, as
specifically authorized and approved by the General Council referendum
under Article VII, Section 2 of the Siletz Tribal Constitution. The
authority for enactment of this Ordinance is as follows:
(a) The Act of August 15, 1953 (Public Law 83-277, 67 Stat. 586,
codified as 18 U.S.C. Sec. 1161) which provides a federal statutory
basis for the Siletz Tribe to regulate the activities of the
manufacture, distribution, sale and consumption of liquor on Indian
lands under the jurisdiction of the Confederated Tribes of Siletz
Indians of Oregon, so long as such ordinance is in conformance with the
laws of the State of Oregon; and
(b) Article IV, Section 1, of the Constitution of the Confederated
Tribes of Siletz Indians of Oregon, which vests the Tribal Council with
legislative and administrative authority, and otherwise empowers the
Tribal Council to act for the Confederated Tribes of Siletz Indians of
Oregon.
Part II
Definitions
Section 14.03
(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) Committee for the purposes of this Ordinance shall mean the
Tribal Council of the Siletz Tribe.
[[Page 39856]]
(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
establishments, public buildings, public meeting halls, lobbies, halls
and dining rooms of hotels, restaurants, theaters, 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 and 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) Reservation means the Siletz Tribe Reservation, which is held
in trust by the United States for the benefit of the Siletz Tribe or
held in trust for the benefit of an individual member of the Siletz
Tribe.
(12) 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.
(13) Spirits mean any beverage, which contains alcohol obtained by
distillation, including wines exceeding seventeen percent of alcohol by
weight.
(14) Tribe means the Confederated Tribes of Siletz Indians of
Oregon.
(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.
(b) (1) To the extent that definitions are not inconsistent with
tribal or federal law, the terms used in this ordinance shall have the
same meaning as defined in Title 37, Oregon Revised Statutes, Chapter
471, and as defined in Oregon Administrative Rules, Chapter 845.
(2) References in Section 14.03 to federal and Oregon state law
shall be those laws and regulations in effect as of May 18, 1996.
Subsequent changes in those laws and regulations shall be considered
incorporated into this ordinance and effective unless the Siletz Tribal
Council or the General Council amends this Ordinance.
Section 14.04 Conformity to State Law
(a) Statement of Objection. The Confederated Tribes of Siletz
Indians of Oregon does not agree with the alleged authority of the
United States or the State of Oregon to interfere with the Siletz
Tribe's sovereign authority to regulate the control of liquor within
Siletz Indian country. Nothing in this Ordinance shall be interpreted
as a waiver of the Siletz Tribe's right and power to challenge such
authority in judicial forums of competent jurisdiction, or by use of
the political process. The Ordinance shall conform with the laws of the
State of Oregon as required by 18 U.S.C. Sec. 1161, and Rice v. Rehner,
463 U.S. 713 (1983).
(b) Conformity to State Law. The Confederated Tribes of Siletz
Indians of Oregon agrees to perform in the sale and possession of
liquor in the same manner as any other Oregon business entity for the
purpose of liquor licensing and regulations, including but not limited
to licensing, compliance with the regulations of the Oregon Liquor
Control Commission (OLCC), 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
intergovernmental agreement with the State of Oregon 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 pursuant to STC Sec. 14.39 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/Dispute Resolution. Jurisdiction for enforcement
of the provisions of this Ordinance by the State of Oregon shall be as
set forth in an appropriate intergovernmental agreement between the
Siletz Tribe and the State of Oregon. No consent to jurisdiction in the
courts of the State of Oregon and no consent to a limited waiver of the
Siletz Tribe'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 intergovernmental 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 pursuant to STC Sec. 14.39 and such
amendment has been approved by the appropriate officials of the United
States Department of the Interior, as required by federal law.
(d) Future Changes in the Law. Amendment or modification of
regulation by the Siletz Tribe of the sale and possession of liquor
shall not be effective until this Ordinance has been validly amended
pursuant to STC Sec. 14.39 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
Section 14.05
(a) Powers. The Committee, 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
Reservation;
(2) 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;
(3) To issue licenses permitting the sale or manufacture or
distribution of liquor on the Reservation;
(4) To hold hearings on violations of this Ordinance or for the
issuance or revocation of licenses hereunder;
[[Page 39857]]
(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 Committee, 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.
(b) The Committee shall have the authority to authorize the sale of
liquor only on those areas of the Siletz Tribe's reservation that have
been specifically approved by the Siletz General Council, by
referendum, and under such conditions as may be included in said
referendum.
Section 14.06 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.
Section 14.07 Inspection Rights
The premises on which liquor is sold or distributed shall be open
for inspection by the Committee at all reasonable time for the purposes
of ascertaining whether the rules and regulations of this Ordinance are
being complied with.
Part IV
Sales of Liquor
Section 14.08 Licenses Required
No sales of alcoholic beverages shall be made, except at a
tribally-licensed or tribally-owned business operated on Reservation
land within the exterior boundaries of the Siletz Tribe.
Section 14.09 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.
Section 14.10 Sale for Personal Consumption
All sales shall be for the personal use and consumption of the
purchaser. Resale of any alcoholic beverage purchases 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 Siletz
Tribe as set forth herein.
Part V
Licensing
Section 14.11 Requirements for Application for Tribal Liquor License
No individual 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 Oregon.
(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 a license 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. The notice shall state the date, time, and place when the
application shall be considered by the Committee pursuant to Section
14.12 of this Ordinance.
Section 14.12 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/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 applicant. After the hearing, the Committee, by secret ballot,
shall determine whether to grant or deny the application based on:
(a) Whether the requirements of Section 14.11 have been met; and
(b) Whether the Committee, in its discretion, determines that
granting the license is in the best interest of the Siletz Tribe.
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 Committee member.
Section 14.13 Temporary Permits
The Committee 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 persons applying for the same in connection with a tribal
or community activity, provided that the conditions prescribed in
Section 14.14 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 Committee, will be assessed on
temporary permits.
Section 14.14 Conditions of the Tribal License
Any tribal license issued under this Ordinance 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 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) 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 Oregon, 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
Oregon.
(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
Siletz Tribe, and
[[Page 39858]]
including special days of observance as designated by the Committee.
(g) All acts and transactions under authority of the tribal liquor
licenses shall be in conformity with the laws of the State of Oregon,
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 Oregon 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.
Section 14.15 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.
Section 14.16 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.
Part VI
Rules, Regulations and Enforcement
Section 14.17 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.
Section 14.18 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.
Section 14.19 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.
Section 14.20 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.
Section 14.21 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 persons violating this Section
shall be guilty of a separate violation of this Ordinance for each and
every drink so consumed.
Section 14.22 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.
Section 14.23 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.
Section 14.24 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.
Section 14.25 Violation of This Ordinance
Any person guilty of a violation of this Ordinance shall be liable
to pay the Siletz Tribe a penalty not to exceed $500 per violation as
civil damages to defray the Siletz Tribe's cost of enforcement of this
Ordinance. In addition to any penalties so imposed, a license issued
hereunder may be suspended or canceled 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.
Section 14.26 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.
Section 14.27 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.
Section 14.28 Disposition of Seized Contraband
Any officer seizing contraband shall preserve the contraband in
accordance with applicable law. Upon being found in violation of this
Ordinance by the Committee, the party shall forfeit all right, title
and interest in the items seized which shall become the property of the
Siletz Tribe.
Part VII
Taxes
Section 14.29 Sales Tax
The Committee shall have the authority, by regulation, to levy and
collect a sales tax on each sale of alcoholic beverages on the
Reservation. 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 Reservation.
Section 14.30 Payment of Taxes to Tribe
All taxes from the sale of alcoholic beverages on the Reservation
shall be paid over to the agency of the Siletz Tribe.
Section 14.31 Taxes Due
All taxes for the sale of alcoholic beverages on the Reservation
are due
[[Page 39859]]
within thirty (30) days of the end of the calendar quarter for which
the taxes are due.
Section 14.32 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.
Section 14.33 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 Siletz 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.
Part VIII
Profits
Section 14.34 Disposition of Proceeds
The gross proceeds collected by the Committee from licensing and
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 of the Committee and its
activities.
(b) The remainder shall be turned over to the account of the Siletz
Tribe.
Part IX
Severability and Miscellaneous
Section 14.35 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.
Section 14.36 Prior Enactments
All prior enactments of the Tribal Council which are inconsistent
with the provisions of this Ordinance are hereby rescinded.
Section 14.37 Conformance With Oregon Laws
All acts and transactions under this ordinance shall be in
conformity with the laws of the State of Oregon as that term is used in
18 U.S.C. 1161.
Section 14.38 Effective Date
This Ordinance shall be effective on July 24, 1997.
Part X
Amendment
Section 14.39
This Ordinance may only be amended or repealed by a majority vote
of the Tribal Council. The authorized areas of the Siletz Tribe's
Reservation where alcohol may be sold may only be amended or repealed
by the General Council.
Part XI
Sovereign Immunity
Section 14.40
Nothing contained in this Ordinance is intended to, nor does in any
way limit, alter, restrict, or waive the Siletz Tribe's sovereign
immunity from unconsented suit.
Dated: July 15, 1997.
Ada E. Deer,
Assistant Secretary, Indian Affairs.
[FR Doc. 97-19410 Filed 7-23-97; 8:45 am]
BILLING CODE 4310-02-P
