E9-23542. Cherokee Nation Limited Mixed Beverage Sales Act

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes the legislation passed by the Cherokee Nation amending Cherokee Nation Legislative Act # 09-04 that regulates and controls the possession, sale, and consumption of liquor within the tribal lands. The tribal lands are located in Indian country and this enactment allows for possession and sale of alcoholic beverages within their boundaries. This law will increase the ability of the tribal government to control the community'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.

DATES:

Effective Date: This Ordinance is effective on October 30, 2009.

FOR FURTHER INFORMATION CONTACT:

Charles Head, Tribal Government Services Officer, Eastern Oklahoma Regional Office, PO Box 8002, Muskogee, OK 74402-8002, Telephone: [phone], Fax [phone]; or Elizabeth Colliflower, Office of Indian Services, 1849 C Street, NW., Mail Stop 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. The governing body of the Cherokee Nation passed the Limited Mixed Beverage Sales Act on July 14, 2008. This enactment amends the Cherokee Nation's alcohol control laws last published in the Federal Register June 28, 2004. The purpose of this amendment is to authorize the Cherokee Nation's limited liability company or other person to apply for a license to establish liquor retail sales at various locations within tribal lands of the Tribe.

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 Limited Mixed Beverage Sales Act—Legislative Act #41-03 was enacted by the legislative body of the Cherokee Nation on July 14, 2008.

Dated: September 21, 2009.

Larry Echo Hawk,

Assistant Secretary—Indian Affairs.

The Limited Mixed Beverage Sales Act of the Cherokee Nation reads as follows:

Legislative Act 13-08

A Legislative Act Amending the Cherokee Nation Limited Mixed Beverage Sales Act—Legislative Act #41-03, as Amended by Legislative Act #09-04

Be It Enacted by the Cherokee Nation:

Title and Codification:

This Act shall be known as the 2008 Technical Amendment to The Cherokee Nation Limited Mixed Beverage Sales Act and codified as ____ (Title) ____ (Section) ____ of the Cherokee Nation Code Annotated. The Cherokee Nation Limited Mixed Beverage Sales Act is hereby amended to read as follows:

Section 1. Title and Codification

This Act shall be known as The Cherokee Nation Limited Mixed Beverage Sales Act and codified as __________ (Title) _________ (Section) ___________ of the Cherokee Nation Code Annotated.

Section 2. Authority

This legislation is enacted by the authority of the Cherokee Nation Tribal Council under Article V, Section 7 of the Constitution of the Cherokee Nation and the Federal Act of August 15, 1953, 67 Stat. 586, codified at 18 U.S.C. Section 1161.

Section 3. Purpose

This Act authorizes the Board of Directors of Cherokee Nation Enterprises, LLC (“CNE”), a limited liability company wholly owned by the Cherokee Nation, or other person approved by CNE, to apply for a license from the Tax Commission to establish retail liquor sales at designated locations within hotel, restaurant, entertainment and/or gaming operations located on trust land. The purpose of this Act is to regulate and control the possession and sale of liquor on trust land. This enactment will increase the ability of the Cherokee Nation to control the sale, distribution and possession of liquor at limited and designated areas on tribal trust land.

Section 4. Application of 18 U.S.C. Section 1161

Federal law requires that any Indian tribal authorization for the sale of liquor or other alcoholic beverages must be in conformity with the laws of the State and approved by an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country. All acts and transactions under this law of the Cherokee Nation shall be in conformity with federal law and with the laws of the State of Oklahoma as applicable.

Section 5. Effective Date

This Act shall be effective on the date of certification by the Secretary of the Interior or designee, or the date of its publication in the Federal Register, whichever is later.

Section 6. Definitions

As used in this Act, the following words shall have the following meanings unless the context clearly requires otherwise:

(a) “Alcohol” means the 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 this Chapter.

(c) “Board of Directors” means the Board of Directors of Cherokee Nation Enterprises, LLC

(d) “CNE” means Cherokee Nation Enterprises, LLC

(e) “Liquor” includes mixed beverages and 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.

(f) “Sale” or “Sell” includes exchange, barter and traffic; and also includes the selling or supplying or distribution, by any means whatsoever, of liquor.

(g) “Tax Commission” means the Cherokee Nation Tax Commission.

(h) “Trust Land” means those lands that are held in trust by the United States for the Cherokee Nation and not for any individual Indian.

Section 7. Powers of Enforcement

The Tax Commission. In furtherance of this Act, the Tax Commission shall have the power to:

(a) Issue licenses pursuant to Section 8 of this Act;

(b) collect the excise tax specified in Section 9 of this Act;

(c) publish and enforce rules and regulations adopted by the Tax Commission governing the sale, consumption and possession of alcoholic beverages;

(d) establish procedure for conducting hearings related to licensing; and

(e) take all necessary steps to enforce sections 8 and 9 of this Act, including the collection of fees, taxes and damages related thereto.

Section 8. Sales of Liquor

A. License Required. Sales of liquor and alcoholic beverages may only be made by CNE, or other person approved by CNE, under a license issued by the Tax Commission.

B. Identification. When requested by the provider of liquor, any person asking to purchase liquor or being served in a group shall be required to present official documentation bearing the holder's age, signature and photograph before being served. Official documentation includes one of the following:

(1) Driver's license or identification card issued by any state department of motor vehicles or foreign nation;

(2) United States Military identification;

(3) Official Passport issued by any nation and accepted by the United States Department of State for entry into the United States.

Section 9. Taxes

Excise Tax: In lieu of any otherwise applicable tribal sales tax on the retail sale of liquor for alcoholic beverages, there shall be an excise tax in the amount of two percent (2%) of the retail sales price, to be collected by the Tax Commission. These revenues shall be used to promote mental health and related issues associated with substance abuse and shall be reserved for expenditure as provided for in the annual budget by the Cherokee Nation Health Service. The Board of Directors shall be entitled to make recommendation as to how these revenues are expended.

Section 10. Rules, Regulations, and Enforcement

A. Sales Without License. Any person who shall sell or offer for sale, distribute or transport, in any manner, liquor in violation of this Act, or who shall operate or shall have liquor for sale in his possession without a license, shall be guilty of a violation of this Act subjecting him or her to prosecution for a crime.

B. Sale for Personal Consumption. All sales shall be for the personal consumption of the purchaser or persons in a group. Resale of any alcoholic beverage is prohibited. Any person not licensed pursuant to this Act who purchases an alcoholic beverage and sells it, whether in the original container or not, shall be guilty of a crime.

C. Illegal Purchases. Any person who buys liquor from any person other than a properly licensed facility shall be guilty of a violation of this Act, subjecting him or her to prosecution for a crime.

D. Minors. 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 violation of this Act, subjecting him or her to prosecution for a crime.

E. Sales to Minors. Any person who shall sell or provide any liquor to any person under the age of 21 years shall be guilty of a crime.

F. Sales to Intoxicated Persons. Any person who shall sell or provide any alcoholic beverage to an individual who is intoxicated, or appears intoxicated, shall be guilty of a crime.

G. False Identification. 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 or any alcoholic beverage shall be in violation of this Act, subjecting him or her to prosecution for a crime.

H. Using False Identification. Any person who attempts to purchase liquor or any 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 Act, subjecting him or her to prosecution for a crime.

I. Punishment. Any person found guilty of a crime under this section may be punished by imprisonment for up to one (1) year and/or fined up to $500.00 for each violation.

J. Contraband Liquor. Any liquor, possessed contrary to the terms of this Act, whether for personal consumption, hospitality, sale, or otherwise, is declared to be contraband. Any tribal law enforcement officer who is authorized to enforce this section shall seize all contraband and preserve it in accordance with the provisions established for the preservation of impounded property.

K. Forfeiture. Upon being found in violation of this Act, the party shall forfeit all right, title and interest in the items seized which shall become the property of the Cherokee Nation.

Section 11. Severability and Effective Date

If any provision or application of this Act is determined by review to be invalid, such determination shall not be held to render ineffectual the remaining portions of this Act or to render such provisions inapplicable to other persons or circumstances.

Enacted by the Council of the Cherokee Nation on the 14th day of July, 2008.

/s/ Meredith A. Frailey

Meredith A. Frailey,

Speaker, Council of the Cherokee Nation.

Attest:

/s/ Don Garvin

Don Garvin,

Secretary, Council of the Cherokee Nation.

Approved and signed by the Principal Chief this 21st day of July, 2008.

/s/ Chadwick Smith

Chadwick Smith,

Principal Chief, Cherokee Nation.

Attest:

/s/ Melanie Knight

Melanie Knight,

Secretary of State, Cherokee Nation.

Yeas and Nays as Recorded:

Tina Glory Jordan	Yea
Bill John Baker	Yea
Joe Crittenden	Nay
Jodie Fishinghawk	Yea
Janelle Lattimore Fullbright	Yea
David W. Thornton, Sr.	Yea
Don Garvin	Yea
Harley L. Buzzard	Yea
Curtis G. Snell	Yea
Meredith A. Frailey	Yea
Chris Soap	Yea
Cara Cowan Watts	Yea
Buel Anglen	Yea
Bradley Cobb	Yea
Charles Hoskin, Jr.	Yea
Julia Coates	Yea
Jack D. Baker	Yea