2015-18286. Pascua Yaqui Tribe of Arizona-2015 Liquor Control Ordinance

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes the Pascua Yaqui Tribe of Arizona's 2015 Liquor Control Ordinance. The ordinance regulates and controls the possession, sale and consumption of liquor within the Pascua Yaqui Tribe of Arizona's Indian country. This ordinance allows for the possession and sale of alcoholic beverages within the jurisdiction of the Pascua Yaqui Tribe of Arizona, will increase the ability of the tribal government to control the distribution and possession of liquor within their Indian country, and at the same time, will provide an important source of revenue, the strengthening of the tribal government, and the delivery of tribal services.

DATES:

Effective Date: This law is effective August 27, 2015.

FOR FURTHER INFORMATION CONTACT:

Sharlot Johnson, Tribal Government Services Officer, Western Regional Office, Bureau of Indian Affairs, 2600 North Central Avenue, Phoenix, AZ 85004; Phone: [phone]; Fax: [phone], or Laurel Iron Cloud, Chief, Division of Tribal Government Services, Office of Indian Services, Bureau of Indian Affairs, 1849 C Street NW., MS-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. Pascua Yaqui Tribal Council duly adopted this law by Resolution No. C06-103-15 on June 10, 2015.

This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs. I certify that the Pascua Yaqui Tribe of Arizona duly adopted the 2015 Liquor Control Ordinance 07-15 by Resolution No. C06-103-15 on June 10, 2015.

Dated: July 21, 2015.

Kevin K. Washburn,

Assistant Secretary—Indian Affairs.

The Pascua Yaqui Liquor Control Ordinance of 2015 shall read as follows:

Section 10 Short Title: Codification (8 PYTC § 6-5-10)

(A) This Ordinance is an Ordinance of the Pascua Yaqui Tribe of Arizona, and shall be known as the Pascua Yaqui Liquor Control Ordinance of 2015.

(B) This Ordinance shall be codified pursuant to the Pascua Yaqui Tribe Codification Ordinance as Title 8, Part VI, Chapter 6-5.

Section 20 General (8 PYTC § 6-5-20)

(A) This Ordinance is for the purpose of regulating the sale, possession and use of alcoholic liquor on the Pascua Yaqui Reservation and adjacent Trust Lands held by the United States for the benefit of the Pascua Yaqui Tribe of Arizona. The enactment of this Ordinance will enable the Pascua Yaqui Tribe of Arizona and its Tribal Government to regulate liquor distribution and possession on the Pascua Yaqui Reservation, as defined in Subsection 8 PYTC § 6-5-30 (C) below.

(B) Subject to certain limitations, Article VI, Sections 1(l), 1(0) 1(t), and 1(w) of the Constitution of the Pascua Yaqui Tribe of Arizona, adopted on January 26, 1988 and approved by the Secretary of the Interior on February 8, 1988 pursuant to Section 16 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 984), vests the Pascua Yaqui Tribal Council with legislative and executive authority, including the authority to adopt this Ordinance.

(C) Jurisdiction. This Ordinance is adopted in accordance with the 18 U.S.C.§ 1161, and conforms with all requisite laws of the State of Arizona in accordance with the requirements of 18 U.S.C.§ 1161.

Section 30 Definitions (8 PYTC § 6-5-30)

To the extent that definitions are consistent with tribal or federal laws, terms used herein shall have the same meaning as defined in Arizona Revised Statutes (“ARS”) Title 4, and as defined in Administrative Rules of the Arizona Department of Liquor Licenses and Control to administer ARS, Title 4.

(A) “Alcoholic Liquor” shall mean any alcoholic beverage containing more than one-half of one percent alcohol by volume, and every liquid or solid, patented or not, containing alcohol and capable of being consumed by a human being.

(B) “Land Assignment” means a Land Assignment as defined in the Pascua Yaqui Tribal Code.

(C) “Pascua Yaqui Reservation” shall mean all lands held in trust by the United States for the Pascua Yaqui Tribe of Arizona or its members. It also includes any roads or rights-of-way located within the external boundaries of the Pascua Yaqui Reservation.

(D) Whenever the words “sell” or “to sell” refer to anything forbidden by this Chapter and related to alcoholic liquor, they include:

(1) To solicit or receive and order;

(2) To keep or expose for sale;

(3) To deliver for value or in any way other than purely gratuitously;

(4) To peddle;

(5) To keep with intent to sell;

(6) To traffic in;

(7) To engage in a transaction for any consideration or promise obtained directly or indirectly under any pretext or by any means or to procure or allow to be procured for any other person;

(8) The word “sale” includes every act of selling as defined in this Subsection (D) of Section 8 PYTC § 6-5-30;

(9) The word “person” includes a human being or any entity that is recognized by law as having the rights and/or duties of a human being.

(E) “Tribal” refers to the Pascua Yaqui Tribe of Arizona.

(F) “Tribe” shall mean the Pascua Yaqui Tribe of Arizona.

Section 40 Civil Violation (8 PYTC § 6-6-40)

Any of the following shall be a civil violation in prosecutable in the Pascua Yaqui Tribal Court under this Ordinance:

(A) For any person to sell, trade or manufacture any alcoholic liquor on the Pascua Yaqui Reservation, except as provided for in this Ordinance.

(B) For any business establishment or person on the Pascua Yaqui Reservation to possess, transport or keep with intent to sell, barter or trade to another, any liquor, except for those commercial liquor establishments on the Pascua Yaqui Reservation licensed by the Arizona Department of Liquor Licenses and Control and approved by the Pascua Yaqui Tribal Council by resolution, provided however that a person may transport liquor from a licensed establishment consistent with the terms of the license.

(C) For any person to consume alcoholic liquor on a public road on the Pascua Yaqui Reservation.

(D) For any person to publicly consume any alcoholic liquor at any community function, or at or near any place of business, celebration grounds, recreational areas, including ballparks, Tribal government facilities, and any other public area where minors gather for meetings or recreation, except within a licensed establishment where alcohol is sold.

(E) For any person under the age of 21 years to buy, attempt to buy or to misrepresent their age in attempting to buy alcoholic liquor.

(F) For any person under the age of 21 years to transport, possess or consume any alcoholic liquor on the Pascua Yaqui Reservation, or to be under the influence of alcohol or to be at an established commercial liquor establishment, except as authorized under this Ordinance.

(G) For any person to sell or furnish alcoholic liquor to any person under 21 years of age.

(H) For alcoholic liquor to be given as a prize, premium or consideration for a lottery, contest, game of chance or skill, or competition of any kind.

Section 50 Criminal Violations (8 PYTC § 6-5-50)

(A) Except as set forth in subsections (B), (C), and (D) below, it shall be a violation of 18 U.S.C. § 1154(a) for any person not having a license issued by the State of Arizona for the sale alcohol on the Pascua Yaqui Reservation to sell or distribute alcohol on the Pascua Yaqui Reservation, and the criminal penalties therefore shall be as established in 18 U.S.C. § 1154(a).

(B) It shall be permissible, and shall not be a criminal violation of 18 U.S.C. § 1154(a), for a person who is 21 years of age or older to distribute, but not sell, alcohol to any other person 21 years of age or older, who are both lawfully present on a residential Land Assignment of the Pascua Yaqui Tribe with the consent of the Land Assignment holder.

(C) It shall be permissible, and shall not be a criminal violation of 18 U.S.C. § 1154(a), for a person who is 21 years of age or older to distribute, but not sell, alcohol to any other person 21 years of age or older, who are both lawfully present at a rental residence, or its surrounding land, owned by the Pascua Yaqui Tribe with the consent of the authorized tenant.

(D) It shall be permissible, and shall not be a criminal violation of 18 U.S.C. § 1154(a), for a person or entity having a liquor license issued by the State of Arizona for sale of liquor on the Pascua Yaqui Reservation, or for any employee of a person or entity having a liquor license issued by the State of Arizona for sale of liquor on the Pascua Yaqui Reservation, to sell or distribute alcohol on the Pascua Yaqui Reservation.

Section 60 Licensing Procedure (8 PYTC § 6-5-60)

(A) Requests, issuances of, and renewals of, licenses under this Ordinance shall be made to the State of Arizona in accordance with the standards set forth by the State of Arizona in ARS Title 4 and the regulations established by the Arizona Liquor License Control Board to administer ARS Title 4.

(B) The Pascua Yaqui Tribal Council shall be the “local governing body,” as set out in ARS § 4-201, for license applications, issuances, and renewals for locations on the Pascua Yaqui Reservation.

(C) Licensees shall not conduct operations under those licenses, nor activities related thereto, on Tribal Land Assignments or rental properties, which are reserved for residential purposes only.

(D) Licenses may be terminated by the Arizona Department of Liquor Licenses and Control and/or Arizona Liquor License Control Board in accordance with their respective laws, regulations, policies and procedures. The laws, rules and regulations of the Arizona Department of Liquor Licenses and Control and/or the Arizona Liquor License Control Board with regard to liquor license enforcement, review, and revocation proceedings shall be applicable to Liquor Licenses on the Pascua Yaqui Reservation.

Section 70 Warning Signs Required (8 PYTC § 6-5-70)

Licensees on the Pascua Yaqui Reservation shall comply with the requirements of ARS § 4-261, and shall post the signs required by that section in accordance with the requirements of that section.

Section 80 Jurisdiction & Violations of this Ordinance (8 PYTC § 6-5-80)

(A) The Pascua Yaqui Tribal Court shall have exclusive jurisdiction over enforcement of all provision of this Ordinance, except for violations of 8 PYTC § 6-5-50 (A) committed by non-Indians. This shall not preclude any of the United States of America, the Arizona Department of Liquor Licenses and Control and/or the Arizona Liquor License Control Board from administering and enforcing their respective laws, regulations, policies and procedures, including, but not limited to, unlawful distribution of alcohol, licensing requirements, the issuance of liquor licenses, liquor license violations, licensee disciplinary proceedings, and license revocation proceedings.

(B) Any person present on the Pascua Yaqui Reservation shall be deemed to have consented to the civil jurisdiction of the Pascua Yaqui Tribal Court, and any Indian present on the Pascua Yaqui Reservation shall be deemed to have consented to criminal jurisdiction of the Pascua Yaqui Tribal Court, and may be subject to a civil or criminal penalty as applicable in the Pascua Yaqui Tribal Court for a civil or criminal violations of this Ordinance. The Indian Civil Rights Act shall be applicable to Indians charged with criminal violations of this Ordinance.

(C) For any violation of 8 PYTC § 6-6-40 the Pascua Yaqui Tribal Court may impose a civil penalty in an amount not to exceed $1,000 per violation.

(D) The Pascua Yaqui Prosecutor's Office shall bring enforcement actions of alleged violations of 8 PYTC § 6-6-40.

(E) The burden of proof for alleged violations of 8 PYTC § 6-6-40 shall be a preponderance of the evidence.

(F) There shall be no right of jury trial or court-appointed legal counsel for alleged violations of 8 PYTC § 6-6-40.

(G) Alleged violations of 8 PYTC § 6-6-40 above may be brought jointly with a criminal violation of Pascua Yaqui Tribal law, or may be brought separately.

(H) The Tribal Council hereby specifically finds that civil penalties imposed for violations of 8 PYTC § 6-6-40 are payable to the Pascua Yaqui Tribe, and are reasonably necessary and related to the expense of governmental administration necessary in maintaining law and order and public safety, and in managing, protecting and developing the natural resources on the Reservation. It is the legislative intent of the Tribal Council that all violations of 8 PYTC § 6-6-40, whether committed by tribal members, non-member Indians, or non-Indians, shall be considered civil in nature, rather than criminal.

Section 90 Severability (8 PYTC § 6-5-90)

If a court of competent jurisdiction finds any provision of this Ordinance to be invalid or illegal under applicable Federal or Tribal law, such provision shall be severed from the Ordinance and the remainder of this Ordinance shall remain in full force and effect.

Section 100 Compliance with 18 U.S.C. 1154(a) and 18 U.S.C. 1161 (8 PYTC § 6-5-100)

The Tribe will comply with 18 U.S.C. § 1154(a) and 18 U.S.C. 1161, and other laws of the United States regarding distribution of alcohol on the Pascua Yaqui Reservation, and will comply with the laws and regulations of the State of Arizona regarding licenses to sell alcohol to the extent they are applicable to the Tribe under 18 U.S.C. 1161, other laws of the United States, or the laws of the State of Arizona.

Section 110 Effective Date (8 PYTC § 6-5-110)

This Ordinance shall be effective on the THIRTY FIRST DAY AFTER approval by the Secretary of Interior, and publication in the Federal Register as provided by 18 U.S.C. 1161.

Section 120 Sovereign Immunity (8 PYTC § 6-5-120)

Nothing in this Ordinance either waives or shall be deemed or construed as a waiver of the sovereign immunity of the Tribe, nor any of its elected officials, officers, directors, employees or governmental enterprises, entities, departments or components and any respective officers, directors or employees thereof.”