[Federal Register Volume 62, Number 164 (Monday, August 25, 1997)]
[Notices]
[Pages 44988-44991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22534]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Liquor Ordinance of the Susanville Indian Rancheria
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 DM 8, and in accordance with the Act of August
15, 1953, 67 Stat. 586, 18 U.S.C. 1161. I certify that Resolution No.
SU-BC-19-97, approving Ordinance No. 97-3, the Liquor Ordinance of the
Susanville Indian Rancheria, was duly adopted and certified by the
General Council of the Susanville Indian Rancheria on May 5, 1997. The
Ordinance provides for the regulation of the sale, possession and
consumption of liquor in the area of the Susanville Indian Rancheria,
under the jurisdiction of the Susanville Indian Rancheria, and is in
conformity with the laws of the State of California.
DATES: This Ordinance is effective August 25, 1997.
FOR FURTHER INFORMATION CONTACT: Bettie Rushing, Division of Tribal
Government Services, 1849 C Street NW, MS 4603-MIB, Washington, DC
20240-4001; telephone (202) 208-3463.
SUPPLEMENTARY INFORMATION: The Liquor Ordinance of the Susanville
Indian Rancheria is to read as follows:
Liquor Ordinance of the Susanville Indian Rancheria
Introduction
101. Title. This Ordinance shall be known as the ``Liquor Ordinance
of the Susanville Indian Rancheria.''
102. Authority. This Liquor Ordinance is enacted pursuant to the
Act of August 15, 1953 (Pub. L. 83-277, and 67 Stat. 586, 18 U.S.C.
1161) and the Constitution of the Susanville Indian Rancheria adopted
on October 10, 1996, and applicable laws.
103. Purpose. The purpose of this Liquor Ordinance is to regulate
and to control the possession and sale of liquor to and on the
Susanville Indian Rancheria. 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.
104. Tribal Jurisdiction. This ordinance applies to all lands in
which the Susanville Indian Rancheria holds an ownership interest and
which are defined as Indian country under 18 U.S.C. 1151. At the time
of enacting this ordinance, the Rancheria does not have an ownership
interest in any lands defined by 18 U.S.C. 1154(c) as fee-patented land
in a non-Indian community or rights-of-ways which run through the
Rancheria's lands. This ordinance is in conformity with California
State alcohol laws as required by 18 U.S.C. 1161.
Definitions
201. As used in this Liquor 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 any liquor or alcoholic beverage, as herein defined.
205. Beer means any beverage obtained by the alcoholic fermentation
of an infusion or concoction 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
purpose 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. The Tribal Business Council as used herein means the body
authorized by the Susanville Indian Rancheria constitution to
promulgate all tribal ordinances and regulations.
207. General Council means the general council of the Susanville
Indian Rancheria 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
substance, 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 Liquor Ordinance, includes 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 purpose of this Liquor
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 Susanville Indian Rancheria (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 Susanville Indian Rancheria.
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 any such land leased to other parties.
218. Trust Account means the account designated by the Tribal
Business Council for deposit of proceeds from
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any tax or fee levied by the Tribal Business Council and relating to
the sale of alcoholic beverages.
219. Trust Agent means the Tribal Chairperson or his or her
designee.
220. 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.
Powers of Enforcement
301. Powers. The Tribal Business Council, in furtherance of this
Liquor 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
Tribal Business Council to perform its functions; all 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 Liquor Ordinance or for
the issuance or revocation of licenses hereunder pursuant to sections
501 through 506 ;
e. To bring suit in the appropriate court to enforce this Liquor
Ordinance as necessary;
f. To determine and seek damages for violation of this Liquor
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 Tribal Business
Council, 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 Liquor Ordinance, the Tribal Business 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.
303. Inspection Rights. The premises on which Liquor is sold or
distributed shall be open for inspection by the Tribal Business Council
or its designee at all reasonable times, which includes the hours the
business is open to the public, for the purposes of ascertaining
whether the rules and regulations of this Liquor Ordinance are being
followed.
Sales of Liquor
401. Tribal Liquor License Required; Tribally Owned Businesses. 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. Nothing in this section shall prohibit a
tribal licensee or the Tribe from purchasing liquor from an off-
reservation source for resale on the Reservation or the delivery to the
Tribe for a tribal licensee of liquor purchased from off-reservation
sources for resale on the Reservation.
402. Sale 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 ATM cards, debit cards, or major
credit cards such as MasterCard, 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 Liquor
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 Liquor Ordinance and shall be
subject to paying damages to the Tribe as set forth herein.
Licensing
501. Applicable for Tribal Liquor License Requirements. No Tribal
license shall be issued under this Liquor Ordinance except upon a sworn
application filed with the Tribal Business Council 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 to sell Alcoholic Beverages;
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 Alcoholic Beverages
are to be sold and proof that the applicant is the owner of such
premises or the 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 fee established from time to time by the Tribal
Business Council. Said fee is established initially at $250.00 but can
be changed by Tribal Business Council resolution at any time;
f. Satisfactory proof that neither the applicant, nor the
applicant's spouse, nor any principal owner, officer, shareholder, or
director of the applicant, if an entity, has ever been convicted of a
felony or a crime of moral turpitude as defined by the laws of the
State of California;
g. Satisfactory proof that notice of the application has been
posted in a prominent, noticeable place on the premises where Alcoholic
Beverages are to be sold for at least 30 days prior to consideration by
the Tribal Business Council and has been published at least twice in
such local newspaper serving the community that may be affected by the
license as the Tribal Business Council may authorize. The notice shall
state the date, time, and place when the application shall be
considered by the Tribal Business Council 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
Tribal Business Council in open session at which the applicant, his,
her or its 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
Business Council, 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 Tribal Business Council, in its
discretion, determines that granting the license is in the best
interest of the Tribe. In the event that the applicant is a member of
the Tribal Business Council, or the applicant is a member of the
immediate family of a Tribal Business Council member, such Tribal
Business Council member shall not vote on the application or
participate in the hearings as a Tribal Business Council member.
503. Temporary Permits. The Tribal Business Council or its designee
may grant a temporary permit for the sale of Liquor for a period not to
exceed three (3) days to any person applying to the same in connection
with a Tribal or community activity, provided that the
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conditions prescribed in section 504 of this Liquor Ordinance shall be
observed by the permittee. Each permit issued shall specify the types
of Alcoholic Beverages to be sold. Further, a fee of $50.00 will be
assessed on temporary permits.
504. Conditions of a Tribal Liquor License. Any Tribal liquor
license issued under this Liquor Ordinance shall be subject to such
reasonable conditions as the Tribal Business Council shall fix
including but not limited to the following:
a. The license shall be for a term not to exceed one (1) year.
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 Tribal law
enforcement personnel and such other law enforcement officials as may
be authorized under federal, California, or Tribal 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 Liquor or Alcoholic 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
Tribal Business 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 California.
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
Tribe, and including special days of observation as designated by the
Tribal Business Council.
g. All acts and transactions under authority of the Tribal liquor
license shall be in conformity with the laws of the State of
California, with this Liquor Ordinance, and with any Tribal liquor
license issued pursuant to this Liquor Ordinance.
h. 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 or area.
i. 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 Liquor 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 a license/permit in a subsequent time period.
506. Assignment or Transfer. No Tribal license issued under this
Liquor Ordinance shall be assigned or transferred without the prior
written approval of the Tribal Business Council expressed by formal
resolution.
Rules, Regulations, and Enforcement
601. Sale 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 Liquor Ordinance, or who
shall operate or shall have Liquor in his possession with intent to
sell or distribute without a license or permit, shall be guilty of a
violation of this Liquor Ordinance.
602. Purchases From Other Than Licensed or Allowed Facilities. Any
person who, within the boundaries of the Reservation, buys Liquor from
any person other than at a properly licensed or allowed facility shall
be guilty of a violation of this Liquor 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 Liquor 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 of such person who shall knowingly
permit any person to drink any Liquor in any public conveyances 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 Liquor
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 years 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 Liquor 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 Liquor 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 Liquor
Ordinance.
608. Use of False or Altered Identification. Any person who
attempts to purchase an Alcoholic Beverage through the use of a false
or altered identification shall be guilty of violating this Liquor
Ordinance.
609. Acceptable Identification. Where there may be a question of a
person's right to purchase Liquor by reason of his or her age, such
person shall be required to present any one of the following cards of
identification which shows his or her correct age and bears his or her
signature and photograph: (1) A driver's license of any state or
identification card issued by any state department of motor vehicles;
(2) United States active duty military; or (3) a passport.
610. Violations of this Liquor Ordinance. Any person guilty of a
violation of this Ordinance shall be liable to pay the Tribe a civil
fine not to exceed $500 per violation as civil damages to defray the
Tribe's cost of enforcement of this Liquor Ordinance. In addition to
any penalties so imposed, any license or permit issued hereunder may be
suspended or canceled by the Tribal Business Council for the violation
of any of the provisions of this Liquor Ordinance, or of the Tribal
license or permit, upon hearing before the Tribal Business Council
after 10 days notice to the licensee. The decision of the Tribal
Business Council shall be final and no appeal therefrom allowed. The
Tribal Business Council shall grant all persons in any hearing
regarding violations, penalties, or license suspensions under this
Ordinance all the rights and due process granted by the Indian Civil
Rights Act, 25 U.S.C. 1302, et seq. Notice of a Tribal Business Council
hearing regarding an alleged violation of this Ordinance shall be given
to the affected individual(s) or entity(ies) at least 10 days in
advance of the hearing. The notice will be delivered in person or by
certified mail with The Tribal Business Council retaining proof of
service. The notice will set out the right of the alleged violator to
be represented by counsel retained by the alleged violator, the right
to speak and to present witnesses and to cross-examine any witnesses
against them.
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611. Possession of Liquor Contrary to This Liquor Ordinance.
Alcoholic Beverages which are possessed contrary to the terms of this
Liquor Ordinance are declared to be contraband. Any Tribal agent,
employee, or officer who is authorized by the Tribal Business Council
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 this
Liquor Ordinance by the Tribal Business Council, the party shall
forfeit all right, title and interest in the items seized which shall
become the property of the Tribe.
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. 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 from 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 Alcoholic 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 Tribal Business Council, such a review
or audit is necessary to verify the accuracy of reports.
Profits
801. Disposition of Proceeds. The gross proceeds collected by the
Tribal Business Council from all licensing provided under this Liquor
Ordinance, or the imposition of civil penalties for violating this
Ordinance, or 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.
Severability and Miscellaneous
901. Severability. If any provision or application of this Liquor
Ordinance is determined upon review by a court of competent
jurisdiction to be invalid, such adjudication shall not be held to
render ineffectual the remaining portions of this Ordinance or to
render such provisions inapplicable to other persons or circumstances.
902. Prior Enactments. Any and all prior ordinances, resolutions or
enactments of the Tribal Business Council which are inconsistent with
the provisions of this Liquor Ordinance are hereby rescinded.
903. Conformance with Tribal, State and Federal Law. This Ordinance
conforms with all Rancheria tribal law and governing documents such as
the Constitution and By-Laws. All provisions and transactions under
this Ordinance shall be in conformity with California State law
regarding alcohol to the extent required by 19 U.S.C. 1161 and with all
federal laws regarding alcohol in Indian country.
904. Enforcement. All actions brought by the Tribal Business
Council to enforce the provisions of this Ordinance shall be filed in
the Tribal Court of the Susanville Indian Rancheria. In the absence of
a tribal court, said actions shall be filed in Federal court in the
Eastern District of California and be appealable in the federal court
system. If the federal court should determine that it lacks
jurisdiction over said action, it shall be filed in the California
state court in Lassen County with the subject matter jurisdiction and
venue over the action. The first court system to have jurisdiction over
an enforcement action, analyzing first, tribal court; second, Federal
court; and third, state courts shall have exclusive jurisdiction over
such actions.
905. Effective Date. This Liquor Ordinance shall be effective after
the Secretary of the Interior certifies the Ordinance and publishes it
in the Federal Register.
Amendment
1001. Amendment or Repeal. This Ordinance may be amended or
repealed by a majority vote of the Tribal Business Council or by the
General Council at a properly held meeting. Amendments of this
Ordinance need not be published in the Federal Register to become
effective.
Sovereign Immunity.
1101. Nothing contained in this Liquor Ordinance is intended to nor
does in anyway limit, alter, restrict, or waive the Tribe's sovereign
immunity from unconsented suit or action.
Dated: August 18, 1997.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 97-22534 Filed 8-22-97; 8:45 am]
BILLING CODE 4310-02-U
