04-17856. Seneca Nation Sale and Consumption of Alcoholic Beverages

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes the Seneca Nation Liquor Control Code. The Code regulates and controls the possession, sale and consumption of liquor on the Seneca Nation. The land is located on trust land and this Code allows for the possession and sale of alcoholic beverages on the Seneca Nation and will increase the ability of the tribal government to control the Nation's liquor distribution and possession, and at the same time will provide an important source of revenue for the continued operation and strengthening of the tribal government and the delivery of tribal services.

EFFECTIVE DATE:

This Code is effective on August 5, 2004.

FOR FURTHER INFORMATION CONTACT:

Harold Spears, Eastern Regional Office, Division of Tribal Government, 711 Stewarts Ferry Pike, Nashville, Tennessee 37214, Telephone [phone] or Ralph Gonzales, Office of Tribal Services, 1951 Constitution Avenue, NW., MS-320-SIB, Washington, DC 20240; Telephone [phone].

SUPPLEMENTARY INFORMATION:

Pursuant to the Act of August 15, 1953, Public Law 83-277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in Rice v. Rehner, 463 U.S. 713 (1983), the Secretary of the Interior shall certify and publish in the Federal Register notice of adopted liquor ordinances for the purpose of regulating liquor transactions in Indian country. The Seneca Nation adopted its Code, CN:R-04-10-04-19 on April 10, 2004.

The purpose of this Code is to govern the sale, possession and distribution of alcohol on the Seneca Nation.

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 this Liquor Ordinance, a Legislative Code of the Seneca Nation, was duly adopted by the Seneca Nation Tribal Council on March 15, 2004.

David W. Anderson,

Assistant Secretary—Indian Affairs.

The Seneca Nation Liquor Control Code, CN:R-04-10-04-19 reads as follows:

Adopted by Seneca Nation Tribal Council by Resolution CN:R-04-10-04-19 (April 10, 2004)

Seneca Nation of Indians Alcoholic Beverage Control Code

Section 1—Title

This Code shall be known as the “Seneca Nation of Indians Alcoholic Beverage Control Code.”

Section 2—Authority and Purpose

The authority for this Code and its adoption by the Council of the Seneca Nation of Indians (“Nation Council”) is found in Article XIII of the Constitution of the Seneca Nation of Indians of 1848, as amended, and in the Act of August 15, 1953, Public Law 83-277, 18 U.S.C. 1161.

Pursuant to the inherent sovereignty of the Nation and in the exercise of the Nation's powers for the purpose of protecting the welfare, health, peace, morals and safety of Nation members, the Nation adopts this Code for the purpose of regulating and controlling the possession, sale and consumption of alcoholic beverages within the boundaries of the Seneca Nation Territory. This Code is enacted in conformity with the Nation's concurrent jurisdiction with the State of New York over alcoholic beverage regulation within the Seneca Nation Territory pursuant to the Act of August 15, 1953, Public Law 83-277, 18 U.S.C. 1161.

Section 3—Relation to Other Seneca Nation Regulations

Nation Council resolution CN: R-11-16-02-17, duly adopted by the Nation Council on November 16, 2002, is hereby repealed and replaced. Any and all prior ordinances, resolutions, regulations or other form of control of the Nation, whether written or unwritten, which authorize, prohibit, or deal with the sale of alcohol are hereby repealed and have no further force and effect. No Nation ordinance or regulation shall be applied in a manner inconsistent with the provisions of this Code.

Section 4—Application of This Code to Seneca Nation Territory

The Seneca Nation lands to which this Code applies is the Indian Country that is subject to the jurisdiction of the Nation, including those lands acquired by the Nation in restricted fee status pursuant to the Seneca Nation Land Claims Settlement Act of 1990, 25 U.S.C. 1774f(c). For the purposes of this Code only, all lands to which this Code applies shall be referred to herein as the “Seneca Nation Territory.”

Section 5—Conformity With State Law and This Ordinance

The possession, sale and consumption of alcoholic beverages within the Seneca Nation Territory shall be lawful provided that such possession is in conformity with both this Ordinance and the laws of the State of New York pursuant to 18 U.S.C. 1161.

Section 6—Definitions

To the extent that definitions are consistent with Nation and federal law, terms used herein shall have the same meaning as defined in New York Consolidated Laws, Chapter 3-B (Alcoholic Beverage Control Law) and in Title 9, Subtitle B, Chapter I of the New York Regulations (Rules of the New York State Liquor Authority).

(a) “Alcohol” shall mean ethyl alcohol, hydrated oxide of ethyl or spirit of wine from whatever source or by whatever process produced.

(b) “Alcoholic beverage” shall mean any liquid suitable for human consumption, which contains one-half of one percent or more of alcohol by volume.

(c) “Beer” shall mean and include any fermented beverages of any name or description, manufactured from malt, wholly or in part, or from any substitute therefore.

(d) “Distilled spirits” shall mean any alcoholic beverage that is not beer, wine, sparkling wine or alcohol.

(e) “Liquor” shall mean and include any and all distilled or rectified spirits, brandy, whiskey, rum, gin, cordials or similar distilled alcoholic beverages, including all dilutions and mixtures of one or more of the foregoing.

(f) “Minor” shall mean any person under age twenty-one (21) years of age.

(g) “Nation Council” shall mean the duly elected governing body of the Seneca Nation of Indians.

(h) “Nation Enterprise,” for purposes of this Code only, shall mean those corporations chartered by the Nation and authorized to conduct Class II or III gaming and related commercial activities within Seneca Nation Territory pursuant to the Nation's Gaming Compact with New York State and that is licensed by the Nation Council after paying the appropriate fee set forth by the Nation Council by Resolution at not less than two hundred ($200.00) Dollars and not more than Five Thousand ($5,000) Dollars annually.

(i) “Possession or possessing” shall mean over one's person, vehicle or other property and includes constructive possession through control without regard to ownership.

(j) “Purchase” shall mean the exchange, barter, traffic, receipt, with or without consideration in any form.

(k) “Sale” shall mean the exchange, barter, traffic, donation, with or without consideration, in addition to the selling, supplying or distribution by any means, by any person to any person.

(l) “State” means the State of New York.

(m) “Transport” shall mean the introduction of alcoholic beverage onto the Seneca Nation Territory by any means of conveyance for the purpose of sale, or distribution, to any licensed dealer.

Section 7—Powers of Enforcement

(a) The Nation Council, or other designee as authorized by the Nation Council by Resolution, has primary regulatory authority over the subject matter of this Code. The Nation Council, or its duly authorized designee, shall have the following powers and duties:

(b) To establish, publish and enforce rules and regulations governing the sale of alcoholic beverages within Seneca Nation Territory. Such rules and regulations shall be in conformity with the rules and regulations of the State of New York and shall be approved by the Nation Council prior to taking effect;

(c) To employ managers, accountants, security personnel, inspectors, and other such persons as may be reasonably necessary to ensure adequate enforcement of this Code;

(d) To issue licenses permitting the sale of alcoholic beverages within Seneca Nation Territory;

(e) To hold hearings on violations of this Code or for the issuance or revocation of licenses hereunder;

(f) To bring suit to enforce this Code as necessary;

(g) To determine penalties for violations of this Code;

(h) To make such reports as may be required;

(i) To collect fees levied or set in relation to this Code and keep accurate records, books and accounts; and

(j) To exercise such other powers as is necessary and appropriate to fulfill the purposes of this Code.

(2) The Marshals, the Seneca Nation Conservation officers, and the officers of the Seneca Nation Law Enforcement Department are authorized to enforce this Code within the Seneca Nation Territory. Such officials are authorized to confiscate and preserve evidence of all alcoholic beverages sold, introduced for purposes of sale, or possessed in violation of this Code within the Seneca Nation Territory.

Section 8—Conditions Regarding Sales of Alcoholic Beverages Within Seneca Nation Territory

(a) License Required. The sale and introduction for purposes of sale of alcoholic beverages shall be unlawful within the Seneca Nation Territory unless pursuant to an alcoholic beverage license issued by the Nation Council or its duly authorized designee. Any person who is not licensed pursuant to this Code who sells, or introduces for sale, alcoholic beverages within the Seneca Nation Territory, whether in the original container or not, shall be guilty of a violation of this Code and shall be subject to a fine under this Code.

(b) Unlawful Possession. The possession and consumption of alcoholic beverages shall be unlawful on the public lands of the Seneca Nation Territory, including public highways, bridges, Nation property, parking lots, driveways and surrounding Nation Buildings. Any person who possesses or consumes alcoholic beverages in violation of this provision shall be guilty of a violation of this Code and shall be subject to a fine under this Code.

(c) Possession by minors. It shall be unlawful for any person under the age of twenty-one to possess or consume alcoholic beverages, or for any person to give alcoholic beverages to any person under the age of twenty-one, within the Seneca Nation Territory. Any person in violation of this provision shall be guilty of a violation of this Code and shall be subject to a fine under this Code.

(d) Sale to minors. It shall be unlawful for any person to maintain a premises within the Seneca Nation Territory where alcoholic beverages are consumed, possessed or served to any person under the age of twenty-one. Any person in violation of this provision shall be guilty of a violation of this Code and shall be subject to a fine under this Code.

Section 9—Violations of the Code Within Seneca Nation Territory

(a) The Nation may bring an action in the Peacemakers' Court against any person for violation of the provisions of this Code within Seneca Nation Territory. The action shall be initiated by the filing of a written complaint with the court of the tribal prosecutor, sworn to by a person having personal knowledge of the charged violation, or by a Marshal or Seneca Nation Law Enforcement officer having personal knowledge of the charged violation. The complaint shall set forth the essential facts charging that named individual has violated the Code. Such action, including any appeal which is taken from the decision of the Peacemakers' Court, shall be governed by the Seneca Nation of Indians Peacemakers' Court and surrogate's court civil procedure rules.

(b) Any person found to have violated the Code shall pay a fine of:

(1) No more than $5000 and no less than $0 for a Section 8(a) violation, plus court costs.

(2) No more than $5000 and no less than $0 for a Section 8(b) violation, plus court costs.

(3) No more than $5000 and no less than $0 for a Section 8(c) violation, plus court costs.

(4) No more than $5000 and no less than $0 for a Section 8(d) violation, plus court costs.

In addition to the penalty described for such violation, all alcoholic beverages confiscated from any person found to have violated this Code shall be destroyed.

(c) In lieu of imposing a fine pursuant to subsection (b) above, the Peacemakers' Court may employ the procedure provided in section 4-102(a), (b) of the Seneca Nation of Indians Peacemakers' Court and surrogate's court civil procedure rules.

(d) Any person found to have violated this Code who is charged with a second subsequent violation may be referred to any other jurisdiction which the Peacemakers' Court determines has concurrent jurisdiction over the charge.

(e) In addition to other remedies, the Peacemakers' Court may enjoin any person in violation of this Code.

Section 10—Licensing

(1) License Requirements. No license shall be issued under this Code except upon a sworn application filed with the Nation Council, or its duly authorized designee, containing a full and complete showing of the following:

(a) Satisfactory proof that the applicant is duly licensed by the State of New York to sell alcoholic beverages.

(b) Satisfactory completion of a background investigation including but not limited to a determination that the applicant is of good character and reputation and that the applicant is financially responsible.

(c) The description and location of the premises in which the alcoholic beverages are to be sold and proof that the applicant is entitled to use such premises for such purposes for the duration of the time period of the license.

(d) Agreement by the applicant to accept and abide by all conditions of the license as established by the Nation Council.

(e) Payment of a fee established by the Nation Council.

(f) Satisfactory proof that neither the applicant, nor the applicant's spouse, nor any principal owner, officer, shareholder, or director of the applicant, has ever been convicted of a felony or a crime of moral turpitude as defined by the laws of the State of New York.

Section 11—Processing Applications for Tribal Alcoholic Beverages License

The Nation Council will consider the merits of applications for alcoholic beverages licenses based on the following factors:

(1) whether the requirements of Section 10 have been met; and

(2) whether granting the license is in the best interests of the Nation.

No member of the Nation Council shall be a part of the decision making process of an application submitted by a Nation Council member or any person in the immediate family of a Nation Council member.

Section 12—Temporary Permits

The Nation Council may grant a temporary permit for the sale of alcoholic beverages, in any form, for a period not to exceed 3 days to any persons applying for the same in connection with a tribal or community activity, provided that the conditions prescribed in Sections 8 of this Code shall be observed by the permittee. Each permit issued shall specify the types of alcoholic beverages to be sold, the time, date and location permitted. A fee, as set by the Nation Council, will be assessed on temporary permits.

Section 13—Conditions of the Tribal License

(1) Any license issued under this Code shall be subject to such reasonable conditions, as the Nation Council 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 open to inspection by duly authorized tribal officials at all times during regular business hours.

(d) Alcoholic beverages shall be sold, served, disposed of, delivered or given to any person, and consumed on the licensed premises in conformity with the hours and days prescribed by the laws of the State, and in accordance with the hours fixed by the Nation Council.

(e) All acts and transactions under authority of a alcoholic beverages license shall be in conformity with State and Federal law, and shall be in accordance with this Code and any license issued pursuant to this Code.

(f) No person under the age permitted under the laws of the State (21 years) shall be sold, served, delivered, given, or allowed to consume alcoholic beverages.

(g) There shall be no discrimination in the operations under the license by reason of race, color, or creed.

Section 14—License not a Property Right

Notwithstanding any other provision of this Code, a alcoholic beverages license is a mere permit for a fixed duration of time. An alcoholic beverages license shall not be deemed a property right or vested right of any kind, nor shall the granting of a alcoholic beverages license give rise to a presumption of legal entitlement to the granting of such license for a subsequent time period.

Section 15—Assignment or Transfer

No license issued under this Code shall be assigned or transferred without the written approval of the Nation Council expressed in a formal resolution.

Section 16—Inspection Rights

The premises upon which alcoholic beverages is sold or distributed shall be open to inspection by the Nation Council or its authorized designee during all hours of operation for the purposes of ascertaining compliance with this Code.

Section 17—Sovereign Immunity Preserved

Nothing in this Code is intended nor shall be construed as a waiver of sovereign immunity by the Nation. No officer, manager or employee of any Nation Enterprise shall be authorized nor shall attempt to waive the sovereign immunity of the Nation.

Section 18—Disclaimer

Nothing in this Code shall be construed to authorize or require the criminal trial and punishment of non-Indians by the Nation except to the extent allowed by an applicable present or future Act of Congress or any applicable laws.

Section 19—Regulations

The Nation Council shall have the exclusive authority to adopt and enforce the rules and regulations to implement this Code on the Seneca Nation Territory and to further the purposes of this Code. Such rules and regulations shall have the force of law upon promulgation by Nation Council Resolution.

Section 20—Severability

If any clause, part or section of this Code shall be adjudged as invalid, such judgment shall not affect or invalidate the remainder of the ordinance but shall be confined in its operation to the clause, part or section directly involved in the controversy in which such judgment was rendered.

Section 21—Effective Date

This Code shall be effective upon the date that the Secretary of Interior certifies this Code and it is published in the Federal Register.

Section 22—Duration

The duration of this Code shall be perpetual until repealed or amended by Nation Council Resolution.