[Federal Register Volume 61, Number 176 (Tuesday, September 10, 1996)]
[Notices]
[Pages 47763-47766]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23042]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Modoc Tribe of Oklahoma 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 DM 8, and in accordance with the Act of August
15, 1953, 67 Stat. 586, 18 U.S.C. Sec. 1161, as interpreted by the U.S.
Supreme Court in Rice v. Rehner, 463 U.S. 713 (1983). I certify that
Resolution No. 95-22, the Modoc Tribe of Oklahoma Liquor Control
Ordinance, was duly adopted by the Elected Council of the Modoc Tribe
of Oklahoma on September 7, 1995. The Ordinance provides for the
regulation and control of the possession and sale of liquor on Modoc
Tribe trust lands.
DATES: This Ordinance is effective as of September 10, 1996.
FOR FURTHER INFORMATION CONTACT: Bettie Rushing, Division of Tribal
Government Services, 1849 C Street, NW, MS 4641-MIB, Washington, D.C.,
20240-4001; telephone (202) 208 - 4400.
SUPPLEMENTARY INFORMATION: The Modoc Tribe of Oklahoma Liquor Control
Ordinance is to read as follows:
Liquor Control Ordinance of the Modoc Tribe of Oklahoma
Chapter I--Introduction
Section 101. Title. This ordinance shall be known as the ``Modoc
Tribe Liquor Ordinance.''
Section 102. Authority. This ordinance is enacted pursuant to the
Act of August 15, 1953, 67 Stat. 586, codified at 18 U.S.C. Section
1161, and by the authority of the Modoc Tribe Elected Council.
Section 103. Purpose. The purpose of this ordinance is to regulate
and control the possession and sale of liquor on the Modoc Tribe Trust
Land. The enactment of a tribal ordinance governing liquor possession
and sale will increase the ability of the Tribal government to control
the sale, distribution, and possession of liquor on the Modoc Tribe
Trust Lands, and will provide an important source of revenue for the
continued operation and strengthening of the tribal government and the
delivery of tribal government services.
Section 104. Effective Date. This ordinance shall be effective on
certification by the Secretary of the Interior and its publication in
the Federal Register.
Article 1. Declaration of Public Policy and Purpose
(a) The introduction, possession, and sale of liquor on the Modoc
Tribe Trust Land is a matter of special concern to the Modoc Tribe.
(b) Federal law currently prohibits the introduction of liquor into
Indian Country (18 U.S.C. Section 1154), except as provided therein and
expressly delegates to the tribes the decision regarding when and to
what extent liquor transactions shall be permitted, 18 U.S.C. Section
1161.
(c) The Modoc Tribe Elected Council finds that a complete ban on
liquor within the Modoc Tribe Trust Land is ineffective and
unrealistic. However, it recognizes that a need still exists for strict
regulation and control over liquor transactions within the Modoc Tribe
Trust Land, because of the many potential problems associated with the
unregulated or inadequately regulated sale, possession, distribution,
and consumption of liquor. The Modoc Tribe Elected Council finds that
exclusive tribal control and regulation of liquor is necessary to
achieve maximum economic benefit to the Tribe, to protect the health
and welfare of tribal members, and to address specific concerns
relating to alcohol use on the Modoc Tribe Trust Land.
(d) It is in the best interests of the Tribe to enact a tribal
ordinance governing liquor sales on the tribal lands and which provides
for exclusive purchase, distribution, and sale of liquor only on tribal
lands within the exterior boundaries of the Modoc Tribe Trust Land.
Further, the Tribe has determined that said purchase, distribution, and
sale shall take place only at tribally-owned enterprises and/or
tribally-licensed establishments operating on land leased from or
otherwise owned by the Tribe.
Article II. Definitions
As used in this title, the following words shall have the following
meanings unless the context clearly requires otherwise:
(a) ``Alcohol'' means that substance known as ethyl alcohol,
hydrated oxide of ethyl, ethanol, or spirits of wine, from whatever
source or by whatever process produced.
(b) ``Alcoholic Beverage'' is synonymous with the term ``liquor''
as defined in Article 11 (f) of this Chapter.
(c) ``Bar'' means any establishment with special space and
accommodations for the sale of liquor by the glass and for consumption
on the premises as herein defined.
(d) ``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 or cereal in pure
water and containing the percent of alcohol by volume subject to
regulation as an intoxicating beverage in the state where the beverage
is located.
[[Page 47764]]
(e) ``Elected Council'' means the Modoc Tribe Elected Council.
(f) ``Liquor'' includes all fermented, spirituous, vinous, or malt
liquor or combinations thereof, and mixed liquor, a part of which is
fermented, and every liquid or solid or semisolid or other substance,
patented or not, containing distilled or rectified spirits, potable
alcohol, beer, wine, brandy, whiskey, rum, gin, aromatic bitters, and
all drinks or drinkable liquids and all preparations or mixtures
capable of human consumption and any liquid, semisolid, solid, or other
substances, which contains more than one half of one percent of
alcohol.
(g) ``Liquor Store'' means any store at which liquor is sold and,
for the purpose of this ordinance, including stores only a portion of
which are devoted to the sale of liquor or beer.
(h) ``Malt Liquor'' means beer, strong beer, ale, stout and porter.
(i) ``Package'' means any container or receptacle used for holding
liquor.
(j) ``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, stores, 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 unrestricted right of access, and which
are generally used by the public. For the purpose 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.
(k) ``Sale'' and ``Sell'' include exchange, barter and traffic; and
also includes fhe 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 of wine by any person to any person.
(l) ``Spirits'' means any beverage, which contains alcohol obtained
by distillation, including wines exceeding seventeen percent of alcohol
by weight.
(m) ``Wine'' means any alcoholic beverage obtained by fermentation
of the natural contents of fruits, vegetables, honey, milk, or other
products containing sugar, whether or not other ingredients are added,
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.
(n) ``Modoc Tribe Council'' means the general council of the Modoc
Tribe which is composed of the voting membership of the Tribe.
(o) ``Modoc Tribe Trust Land'' means those lands which are held in
trust by the United States for the Modoc Tribe and not for any
individual Indian.
Article III. Powers of Enforcement
Section 1. The Elected Council. In furtherance of this ordinance,
the Elected Council shall have the following powers and duties:
(a) To publish and enforce rules and regulations adopted by the
Elected Council governing the sale, manufacture, distribution, and
possession of alcoholic beverages on the Modoc Tribe Trust Land;
(b) To employ managers, accountants, security personnel, inspectors
and such other persons as shall be reasonably necessary to allow the
Elected Council to perform its functions. Such employees shall be
tribal employees;
(c) To issue licenses permitting the sale or manufacture or
distribution of liquor on Modoc Tribe Trust Land;
(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 violations of the ordinance;
(g) To make such reports as may be required by the Modoc Tribe
Council;
(h) To collect taxes and fees levied or set by the Elected Council
and to keep accurate records, books, and accounts.
Section 2. Limitations on Powers. In the exercise of its powers and
duties under this ordinance, the Elected Council and its individual
members shall not:
(a) Accept any gratuity, compensation or other thing of value from
any liquor wholesaler, retailer, or distributor or from any licensee;
(b) Waive the immunity of the Modoc Tribe from suit without the
express consent of the Elected Council.
Section 3. Inspection Rights. The premises on which liquor is sold
or distributed shall be open for inspection by the Elected Council at
all reasonable times for the purpose of ascertaining whether the rules
and regulations of the Elected Council and this ordinance are being
complied with.
Article IV. Sales of Liquor
Section 1. License Required. Sales of liquor and alcoholic
beverages within the exterior boundaries at Modoc Tribe Trust Land may
only be made at businesses which hold a Modoc Tribe Liquor License.
Section 2. Sales for Cash. All liquor sales within the Modoc Tribe
Trust Land 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 payment for purchases with the use of
credit cards such as Visa, MasterCard, American Express, etc.
Section 3. 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
Modoc Tribe Trust Land is prohibited. Any person who is not licensed
pursuant to this ordinance who purchases an alcoholic beverage within
the boundaries of the Modoc Tribe Trust Land and sells it, whether in
the original container or not, shall be guilty of a violation of this
ordinance and shall be subject to paying damages to the Modoc Tribe as
set forth herein.
Article V. Licensing
Section 1. Procedure. In order to control the proliferation of
establishments on the Modoc Tribe Trust Land which sell or serve liquor
by the bottle or by the drink, all persons or entities which desire to
sell liquor within the exterior boundaries of the Modoc Tribe Trust
Land must apply to the Modoc Tribe for a license to sell or serve
liquor.
Section 2. Application. Any person or entity applying for a license
to sell or serve liquor on the Modoc Tribe Trust Land must fill in the
application provided for this purpose by the Modoc Tribe and pay such
application fee as may be set from time to time by the Elected Council
for this purpose. Said application must be filled out completely in
order to be considered.
Section 3. Issuance of License. The Elected Council may issue a
license if it believes that such issuance is in the best interests of
the Modoc Tribe and its members.
Section 4. Period of License. Each license may be issued for a
period not to exceed two (2) years from the date of issuance.
Section 5. Renewal of License. A licensee may renew its license if
the licensee has complied in full with this ordinance provided however,
that the Elected Council may refuse to renew a license if it finds that
doing so would
[[Page 47765]]
not be in the best interests of the health and safety of the Modoc
Tribe.
Section 6. Revocation of License. The Elected Council may revoke a
license for reasonable cause upon notice and hearing at which the
licensee is given an opportunity to respond to any charges against it
and to demonstrate why the license should not be suspended or revoked.
Section 7. Transferability of License. A license issued by the
Elected Council shall not be transferable and may only be utilized by
the person or entity in whose name it was issued.
Article VI. Taxes
Section 1. Sales Tax. There is hereby levied and shall be collected
a tax on each retail sale of liquor or alcoholic beverage on the Modoc
Tribe Trust Land in the amount of three percent (3%) of the retail
sales price. All taxes from the sale of liquor and alcoholic beverages
on the Modoc Tribe Trust Land shall be paid over to the General
Treasury of the Modoc Tribe.
Section 2. Taxes Due. All taxes for the sale of liquor and
alcoholic beverages on the Modoc Tribe Trust Land are due on the 15th
day of the following month.
Section 3. Delinquent Taxes. Past due taxes shall accrue interest
at 2% per month.
Section 4. Reports. Along with payment of the taxes imposed herein,
the taxpayer shall submit a monthly accounting of all income from the
sale or distribution of liquor, as well as for the taxes collected.
Section 5. 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 liquor and alcoholic beverages on the Modoc
Tribe Trust Land. Said review or audit may be done periodically by the
Tribe through its agents or employees whenever, in the opinion of the
Elected Council, such a review or audit is necessary to verify the
accuracy of reports.
Article VII. Rules, Regulations, and Enforcement
Section 1. In any proceeding under this ordinance, conviction of
one unlawful sale or distribution of liquor shall establish prima facie
intent of unlawfully keeping liquor for sale, selling liquor or
distributing liquor in violation of this ordinance.
Section 2. Any person who shall sell or offer for sale or
distribute or transport in any manner, liquor in violation of this
ordinance, or who shall operate or shall have liquor for sale in his
possession without a license, shall be guilty of a violation of this
ordinance subjecting him or her to civil damages assessed by the
Elected Council.
Section 3. Any person within the boundaries of the Modoc Tribe
Trust Land who buys liquor from any person other than a properly
licensed facility shall be guilty of a violation of this ordinance.
Section 4. Any person who keeps or possesses liquor upon his person
or in any place or on premises conducted or maintained by his principal
or agent with the intent to sell or distribute it contrary to the
provisions of this title, shall be guilty of a violation of this
ordinance.
Section 5. Any person who knowingly sells liquor to a person under
the influence of liquor shall be guilty of a violation of this
ordinance.
Section 6. Any person engaging 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 liquor in
any public conveyance shall be guilty of an offense. Any person who
shall drink liquor in a public conveyance shall be guilty of a
violation of this ordinance.
Section 7. No person under the age of 21 years shall consume,
acquire or have in his possession any liquor or 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.
Section 8. Any person who shall sell or provide any liquor to any
person under the age of 21 years shall be guilty of a violation of this
ordinance for each such sale or drink provided.
Section 9. Any person who transfers in any manner an identification
of age to a person under the age of 21 years for the purpose of
permitting such person to obtain liquor shall be guilty of an offense;
provided, that corroborative testimony of a witness other than the
under age person shall be a requirement of finding a violation of this
ordinance.
Section 10. 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 11. Any person guilty of a violation of this ordinance
shall be liable to pay the Modoc Tribe the amount of $1,000 per
violation as civil damages to defray the Tribe's cost of enforcement of
this ordinance.
Section 12. When requested by the provider of liquor, any person
shall be required to present official documentation of the bearers age,
signature and photograph. Official documentation includes one of the
following:
(1) Drivers license or identification card issued by any state
department of motor vehicles;
(2) United States Active Duty Military;
(3) Passport
Section 13. Liquor which is possessed, including for sale, contrary
to the terms of this ordinance is declared to be contraband. Any tribal
agent, employee or officer who is authorized by the Elected Council to
enforce this section shall seize all contraband and preserve it in
accordance with the provisions established for the preservation of
impounded property.
Section 14. Upon being found in violation of the ordinance, the
party shall forfeit all right, title and interest in the items seized
which shall become the property of the Modoc Tribe.
Article VIII. Abatement
Section 1. Any room, house, building, vehicle, structure, or other
place where liquor is sold, manufactured, bartered, exchanged, given
away, furnished, or otherwise disposed of in violation of the
provisions of this ordinance or of any other tribal law relating to the
manufacture, importation, transportation, possession, distribution, and
sale of liquor, and all property kept in and used in maintaining such
place, is hereby declared to be a nuisance.
Section 2. The Chief of the Elected Council or, if the Chief fails
or refuses to do so, by a majority vote, the Elected Council shall
institute and maintain an action in the name of the Tribe to abate and
perpetually enjoin any nuisance declared under this article. In
addition to all other remedies at tribal law, the Court may also order
the room, house, building, vehicle, structure, or place closed for a
period of one (1) year or until the owner, lessee, tenant, or occupant
thereof shall give bond of sufficient sum not less than $25,000 payable
to the Tribe and conditioned that liquor will not be thereafter
manufactured, kept, sold, bartered, exchanged, given away, furnished,
or otherwise disposed of in violation of the provisions of this
ordinance or of any other applicable tribal law and that he will pay
all fines, costs and damages assessed against him for any violation of
this ordinance or other tribal liquor laws. If any conditions of the
bond be
[[Page 47766]]
violated, the bond may be recovered for the use of the Tribe.
Section 3. In all cases where any person has been found in
violation of this ordinance relating to the manufacture, importation,
transportation, possession, distribution, and sale of liquor, an action
may be brought to abate as a nuisance any real estate or other property
involved in the violation of the ordinance and violation of this
ordinance shall be prima facie evidence that the room, house, building,
vehicle, structure, or place against which such action is brought is a
public nuisance.
Article IX. Revenue
Section 1. Revenue provided for under this ordinance, from whatever
source, shall be expended for administrative costs incurred in the
enforcement of this ordinance. Excess funds shall be subject to
appropriation by the Elected Council for essential governmental and
social services.
Article X. Severability and Effective Date
Section 1. If any provision or application of this ordinance is
determined by review to be invalid, such determination shall not be
held to render ineffectual the remaining portions of this ordinance or
to render such provisions inapplicable to other persons or
circumstances.
Section 2. This ordinance shall be effective on such date as the
Secretary of the Interior certifies this ordinance and publishes the
same in the Federal Register.
Section 3. Any and all prior enactments of the Elected Council
which are inconsistent with the provisions of this ordinance are hereby
rescinded.
Article XI. Amendment
This ordinance may only be amended by a majority vote of the
Elected Council.
Dated: September 3, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-23042 Filed 9-9-96; 8:45 am]
BILLING CODE 4310-02-P
