[Federal Register: March 5, 2004 (Volume 69, Number 44)]
[Notices]
[Page 10464-10468]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05mr04-94]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Alturas Indian Rancheria of California Liquor Control Ordinance
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
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SUMMARY: This notice publishes the Alturas Indian Rancheria of
California Liquor Control Ordinance. The
[[Page 10465]]
ordinance regulates and controls the importation, distribution,
possession, consumption and sale of alcohol within the boundaries of
the Alturas Indian Rancheria.
EFFECTIVE DATE: This Ordinance is effective on March 5, 2004.
FOR FURTHER INFORMATION CONTACT: Duane T. Bird Bear, Office of Tribal
Services, Bureau of Indian Affairs, 1951 Constitution Avenue, NW., MS-
320-SIB, Washington, DC 20240, Telephone: (202) 513-7641.
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 General Council of the Alturas
Indian Rancheria of California adopted a Liquor Control Ordinance on
August 29, 2003. The purpose of this ordinance is to govern the
importation, distribution, possession, consumption, and sale of liquor
within the boundaries of the Alturas Indian Rancheria, California.
This notice is published in accordance with the authority delegated
by the Secretary of the Interior to the Assistant Secretary--Indian
Affairs. Amendments to the ordinance are subject to the approval of the
Assistant Secretary for Indian Affairs and published in the Federal
Register before the amendments become effective.
I certify that the Alturas Indian Rancheria Liquor Control
Ordinance was duly adopted by the General Council of the Alturas Indian
Rancheria through General Council Resolution No. 03-003 by a vote of
four (4) for, zero (0) against, and zero (0) abstaining, on August 29,
2003.
Dated: February 27, 2004.
Dave Anderson,
Assistant Secretary--Indian Affairs.
The Alturas Indian Rancheria Liquor Control Ordinance reads as
follows:
The Alturas Indian Rancheria Liquor Control Ordinance
As Adopted by General Council Resolution No. 03-0003 on August 29, 2003
Article I--Declaration of Public Policy and Purpose
Section 1.1. The importation, distribution, possession, consumption
and sale of liquor within the boundaries of the Alturas Indian
Rancheria is a matter of special concern to the members of the Alturas
Indian Rancheria (the ``Tribe'').
Section 1.2. Federal law, as codified at 18 U.S.C. 1154 and 1161,
currently prohibits the introduction of liquor into Indian country,
except in accordance with State law and the duly enacted law of the
Tribe. By adoption of this Ordinance, it is the intention of the
Alturas Indian Rancheria General Council to establish tribal law
regulating the sale, distribution and consumption of liquor on tribal
lands and to ensure that such activity conforms to all applicable
provisions of the laws of the State of California.
Section 1.3. The General Council, according to article VII, section
3, (a) of the Constitution and Bylaws of the Alturas Indian Rancheria
(the ``Constitution'') as the governing body of the Tribe is endowed
with the power to (i) promulgate all ordinances, resolutions, and other
enactments of the Alturas Indian Rancheria; and (ii) to represent the
members in all negotiations between the Tribe and local, state and
Federal Government, their agencies and officers. The General Council
has determined that it is in the best interest of the Tribe to enact a
tribal ordinance governing the importation, distribution, sale,
possession, and consumption of liquor within the boundaries of the
Alturas Indian Rancheria (the ``Rancheria''). By General Council
Resolution No. 03-0003, the General Council has adopted this Ordinance
for the regulation of the importation, distribution, sale, possession
and consumption of liquor on the Rancheria.
Section 1.4. The General Council has determined that the purchase,
distribution and sale of liquor shall take place only at duly licensed
(i) tribally-owned enterprises; (ii) tribally-licensed establishments;
and (iii) tribally-sanctioned Special Events, all as operating on
tribal lands.
Section 1.5. The General Council has determined that any
importation, possession, consumption, sale or other commercial
distribution of liquor on the Rancheria, other than sales and
distribution in strict compliance with this Ordinance, is detrimental
to the health, safety and welfare of the members of the Tribe and is
therefore prohibited.
Section 1.6. Based upon the foregoing findings and determinations,
the General Council hereby enacts this Liquor Control Ordinance (this
``Ordinance'') as follows:
Article II--Definitions
As used in this Ordinance, the following words shall have the
following meanings, unless the context clearly requires otherwise.
Section 2.1. 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 dilutions and mixtures of this
substance.
Section 2.2. Alcoholic Beverage has the same meaning as the term
``liquor'' as defined herein.
Section 2.3. Bar means any establishment with special space and
accommodations for sale by the glass and for consumption on the
premises, of liquor, as herein defined.
Section 2.4. Beer means any beverage obtained by the alcoholic
fermentation at 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 containing not more than four percent (4%) of alcohol by volume.
For the purpose of this title, any such beverage, including ale, stout,
and porter, containing more than four percent (4%) of alcohol by weight
shall be referred to as strong beer.
Section 2.5. General Council means the duly elected entity, elected
by the General Council pursuant to the Constitution.
Section 2.6. Constitution is the Constitution and Bylaws of the
Alturas Indian Rancheria, adopted by the Tribe on April 18, 1972, and
approved by the Secretary of the Interior on May 30, 1972.
Section 2.7. Gaming Commission is the Tribal Gaming body appointed
in accordance with the duly adopted and approved Tribal Gaming
Ordinance of the Alturas Indian Rancheria.
Section 2.8. Gaming Compact means the federally approved Tribal-
State Compact, dated October 8, 1999, between the State of California
and the Tribe.
Section 2.9. Liquor means the four varieties of liquor herein
defined (alcohol, spirits, wine and beer), and all fermented
spirituous, vinous, or malt liquor or combinations thereof and mixed
liquor, or a part of which is fermented, spirituous, vinous, or malt
liquor, or otherwise intoxicating; and every other 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 substances
[[Page 10466]]
that contains more than one percent (1%) of alcohol by weight, shall be
conclusively deemed to be intoxicating.
Section 2.10. Liquor Store means any store at which liquor is sold
and, for the purpose of this Ordinance, including any store only a
portion of which is devoted to the sale of liquor or beer.
Section 2.11. Licensed Wholesaler means a wholesale seller of
liquor that is duly licensed by the Tribe and the State.
Section 2.12. Malt liquor means beer, strong beer, ale, stout and
porter.
Section 2.13. Package means any container or receptacle used for
holding liquor.
Section 2.14. Public Place includes gaming facilities and
commercial or community facilities of every nature 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 access, and which generally are
used by the public.
Section 2.15. Sale and Sell mean any exchange, barter, and traffic;
and also includes the selling of 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.
Section 2.16. Special Event means any social, charitable or for-
profit discreet activity or event conducted by the General Council or
any tribal enterprise on tribal lands at which liquor is sold or
proposed to be sold.
Section 2.17. Spirits means any beverage, which contains alcohol
obtained by distillation, including wines exceeding seventeen percent
(17%) of alcohol by weight.
Section 2.18. State Law means the duly enacted applicable laws and
regulations of the State of California, specifically, Division 9--
Alcoholic Beverages, as set forth at California Business and
Professions Code Division 9, Sections 23000 through 25762, as amended
from time to time, and all applicable provisions of the Compact.
Section 2.19. Tribe means the Alturas Indian Rancheria, located in
Modoc County, California.
Section 2.20. Tribal Enterprise means any business entity,
operation or enterprise owned, in whole or in part, by the Tribe.
Section 2.21. Tribal Land means all land within the exterior
boundaries of the Alturas Indian Rancheria that is held in trust by the
United States for the benefit of the Tribe.
Section 2.22. Wine means any alcoholic beverage obtained by
fermentation of any fruits (grapes, berries, apples, etc.), or fruit
juice and containing not more than seventeen percent (17%) of alcohol
by weight, including sweet wines fortified with wine spirits, such as
port, sherry, muscatel and angelica, not exceeding seventeen percent
(17%) of alcohol by weight.
Article III--Enforcement
Section 3.1. General Council Powers. The General Council or its
designees, in furtherance of this Ordinance, shall have the power and
duty to:
(a) Publish and enforce such rules and regulations governing the
purchase, sale, consumption and distribution of alcoholic beverages in
public places on the Alturas Indian Rancheria as the General Council
deems necessary.
(b) Employ managers, accountants, security personnel, inspectors
and such other persons as shall be reasonably necessary to allow the
General Council to exercise its authority as set forth in this
Ordinance.
(c) Issue licenses permitting the sale and/or distribution of
Liquor on the Alturas Indian Rancheria.
(d) Hold hearings on violations of this Ordinance or for the
issuance or revocation of licenses hereunder;
(e) Bring suit in the appropriate court to enforce this Ordinance
as necessary;
(f) Determine and seek damages for violation of this Ordinance;
(g) Publish notices and make such reports to the General Council as
may be appropriate;
(h) Collect sales taxes and fees levied or set by the General
Council on liquor sales and the issuance of liquor licenses, and to
keep accurate records, books and accounts;
(i) Take or facilitate all action necessary to follow or implement
applicable provisions of State law and Federal law as required;
(j) Cooperate with appropriate State of California authorities for
purposes of prosecution of any violation of any criminal law of the
State of California; and
(k) Exercise such other powers as may be delegated from time to
time by the General Council.
Section 3.2. Limitation on Powers. In the exercise of its powers
and duties under this Ordinance, the General Council and its individual
members, employees and agents shall not:
(a) Accept any gratuity, compensation or other thing of value from
any liquor wholesaler, retailer or distributor, or from any licensee;
or
(b) Waive the immunity of the Tribe from suit except by express
resolution of the General Council, such waiver being subject to the
following limitations: the waiver must be transaction specific, limited
as to duration and beneficiary, include a provision that limits
recourse only to specified assets or revenues of the Tribe or a tribal
entity, and specifies the process and venue for dispute resolution,
including applicable law.
Section 3.3. Inspection Rights. The public places on or within
which liquor is sold or distributed shall be open for inspection by the
General Council or its designees at all reasonable times for the
purposes of ascertaining compliance with this Ordinance and other
regulations promulgated pursuant hereto.
Article IV--Liquor Sales
Section 4.1. License Required. No distribution or sales of liquor
shall be made on or within public places within the exterior boundaries
of the Alturas Indian Rancheria, except at a duly licensed and
authorized Special Event, a Tribal Enterprise, Bar, or Liquor Store
located on tribal lands.
Section 4.2. 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 payment for purchases with the use
of cashiers or personal checks, payroll checks, debit credit cards or
credit cards issued by any financial institution.
Section 4.3. Sale For Personal Consumption. Except for sales by
Licensed Wholesalers, all sales shall be for the personal use and
consumption of the purchaser or members of the purchaser's household,
including guests, who have attained a minimum age of twenty-one (21).
Resale of any alcoholic beverage purchased within the exterior
boundaries of the Reservation is prohibited. Any person who is not
licensed pursuant to this Ordinance who purchases an alcoholic beverage
within the boundaries of the Reservation and re-sells it, whether in
the original container or not, shall be guilty of a violation of this
Ordinance and shall be subjected to exclusion from tribal lands or
liability for money damages of up to five hundred dollars ($500), as
determined by the Tribal Gaming Commission after notice and an
opportunity to be heard.
Section 4.4. Compliance Required. All distribution, sale and
consumption of liquor on tribal lands shall be in compliance with this
Ordinance including all applicable provisions of State law and
applicable Federal law.
[[Page 10467]]
Article V--Licensing
Section 5.1. Licensing Procedures. In order to control the
proliferation of establishments on the Reservation that sell or provide
liquor by the bottle or by the drink, all persons or entities that
desire to sell liquor, whether wholesale or retail, within the exterior
boundaries of the Alturas Indian Rancheria must apply to the General
Council for a license to sell or provide liquor; provided, however,
that no license is necessary to provide liquor within a private single-
family residence on the Reservation for which no money is requested or
paid.
Section 5.2. State Licensing. In the event dual tribal and State
licenses are required by State law, no person shall be allowed or
permitted to sell or provide liquor on the Alturas Indian Rancheria
unless such person is also licensed by the State of California, as
required, to sell or provide such liquor. If any such license from the
State is revoked or suspended, any applicable tribal license shall
automatically be revoked or suspended.
Section 5.3. Application. Any person applying for a license to sell
or provide liquor on the Alturas Indian Rancheria shall complete and
submit an application provided for this purpose by the General Council
and pay such application fee as may be set from time-to-time by the
General Council for this purpose. An incomplete application will not be
considered. The General Council shall establish licensing procedures
and application forms for wholesalers, retailers and special events.
Section 5.4. Issuance of License. The General Council may issue a
license if it believes that such issuance is in the best interest of
the Tribe, the residents of the Alturas Indian Rancheria and the
surrounding community. Licensure is a privilege, not a right, and the
decision to issue any license rests in the sole discretion of the
General Council.
Section 5.5. Period of License. Each license may be issued for a
period not to exceed two (2) years from the date of issuance.
Section 5.6. Renewal of License. A licensee may renew its license
if it has complied in full with this Ordinance and has maintained its
licensure with the State of California, as required; however, the
General Council may refuse to renew a license if it finds that doing so
would not be in the best interests of the health and safety of the
members of the Tribe and the other residents of the Alturas Indian
Rancheria.
Section 5.7. Revocation of License. The General Council may revoke
a license for reasonable cause upon notice and hearing at which the
licensee shall be given an opportunity to respond to any charges
against it and, to demonstrate why the license should not be suspended
or revoked.
Section 5.8. Transferability of Licenses. Licenses issued by the
General 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 6.1. Sales Tax. The General Council shall have the
authority to impose a sales tax on all wholesale and retail liquor
sales that take place on tribal lands. Such tax may be implemented by
duly enacted resolution of the General Council, as supplemented by
regulations adopted pursuant to this Ordinance. Any tax imposed by
authority of this section shall apply to all retail and wholesale sales
of liquor on tribal lands, and to the extent permitted by law shall
preempt any tax imposed on such liquor sales by the State of
California.
Section 6.2. Payment of Taxes to the Tribe. All taxes imposed
pursuant to this Article VI shall be paid over to the General Treasury
of the Tribe and be subject to the distribution by the General Council
in accordance with its usual appropriation procedures for essential
governmental functions and social services, including administration of
this Ordinance.
Article VII--Rules, Regulations and Enforcement
Section 7.1. Evidence. In any proceeding under this title, proof of
one unlawful sale or distribution of liquor shall suffice to establish
prima facie intent or purpose of unlawfully keeping liquor for sale,
selling liquor or distributing liquor in violation of this Ordinance.
Section 7.2. Civil Violations. Any person who shall sell or offer
for sale or distribute or transport in any manner any liquor in
violation of this Ordinance, or who shall have liquor in his/her
possession for distribution or resale without a permit, shall be guilty
of a violation of this Ordinance subjecting him/her to civil damages
assessed by the General Council. Nothing in this Ordinance shall apply
to the possession or transportation of any quantity of liquor by
members of the Tribe or other persons located on tribal lands for their
personal or other noncommercial use, and the possession,
transportation, sale, consumption or other disposition of liquor
outside public places on the Alturas Indian Rancheria shall be governed
solely by the laws of the State of California.
Section 7.3. Illegal Purchases. Any person within the boundaries of
the Alturas Indian Rancheria who, in a public place, buys liquor from
any person other than at a properly licensed facility shall be guilty
of a violation of this Ordinance.
Section 7.4. Sale to Intoxicated Person. Any person who sells
liquor to a person apparently under the influence of liquor shall be
guilty of a violation of this Ordinance.
Section 7.5. Providing Liquor to Underage Person. No person under
the age of twenty-one (21) years shall serve, consume, acquire or have
in his/her possession any alcoholic beverages. Any person violating
this section in a public place shall be guilty of a separate violation
of this Ordinance for each and every drink so consumed.
Section 7.6. Selling Liquor to Underage Person. Any person who, in
a public place, shall sell or provide any liquor to any person under
the age of twenty-one (21) years shall be guilty of a violation of this
Ordinance for each such sale or drink, provided.
Section 7.7. Civil Penalty. Any person guilty of a violation of
this Ordinance shall, be liable to pay the Tribe the amount of two
hundred fifty dollars ($250) per violation as civil damages to defray
the Tribe's cost of enforcement of this Ordinance. The payment of such
damages in each case shall be determined by the General Council based
upon a preponderance of the evidence available to the General Council
after the person alleged to have violated this Ordinance has been given
notice, hearing and an opportunity to respond to such allegations.
Section 7.8. Identification Requirement. Whenever it reasonably
appears to a licensed purveyor of liquor that a person seeking to
purchase liquor is under the age of twenty-seven (27), the prospective
purchaser shall be required to present any one of the following
officially issued cards of identification which shows his/her correct
age and bears his/her signature and photograph:
(1) Drivers license of any State or identification card issued by
any State Department of Motor Vehicles;
(2) United States Uniformed Services identification documents;
(3) Passport; or
(4) Gaming license or work permit issued by the Tribal Gaming
Commission, if said license or permit contains the bearer's correct
age, signature and photograph.
[[Page 10468]]
Article VIII--Abatement
Section 8.1. Public Nuisance Established. Any public place where
liquor is sold, manufactured, bartered; exchanged, given away,
furnished, or otherwise disposed of in violation of the provisions of
this Ordinance, and all property kept in and used in maintaining such
place, is hereby declared to be a public nuisance.
Section 8.2. Abatement of Nuisance. The Tribal Chairperson, upon
authorization by a majority of the General Council or, if he/she fails
to do so, a majority of the General Council acting at a duly-called
meeting at which a quorum is present, shall institute and maintain an
action in a court of competent jurisdiction in the name of the Tribe to
abate and perpetually enjoin any nuisance declared under this title.
Upon establishment that probable cause exists to find that a nuisance
exists, restraining orders, temporary injunctions and permanent
injunctions may be granted in the cause as in other injunction
proceedings, and upon final judgment against the defendant the court
may also order the room, 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 of not less than five thousand dollars
($5,000) payable to the Tribe and conditioned that liquor will not be
thereafter manufactured, kept, sold, bartered, exchanged, given away,
furnished or otherwise disposed of thereof in violation of the
provision of this title or of any other applicable tribal law, and that
s/he will pay all fines, costs and damages assessed against him/her for
any violation of this title or other Tribal liquor laws. If any
conditions of the bond should be violated, the whole amount may be
recovered for the use of the Tribe.
Section 8.3. Evidence. In all cases where any person has been found
responsible for a violation of this Ordinance relating to manufacture,
importation, transportation, possession, distribution and sale of
liquor, an action may be brought to abate as a public nuisance the use
of any real estate or other property involved in the violation of this
Ordinance, and proof of violation of this Ordinance shall be prima fade
evidence that the room, house, building, vehicle, structure, or place
against which such action is brought, is a public nuisance.
Article IX--Use of Proceeds
Section 9.1. Application of Proceeds. The gross proceeds collected
by the General Council from all Licensing of the sale of alcoholic
beverages on tribal lands and from fines imposed as a result of
violations of this Ordinance, shall be applied as follows:
(a) First, for the payment of all necessary personnel,
administrative costs, and legal fees incurred in the enforcement of
this Ordinance; and
(b) Second, the remainder shall be turned over to the General Fund
of the Tribe and expended by the General Council for governmental
services and programs on tribal lands.
Article X--Miscellaneous Provisions
Section 10.1. Severability and Savings Clause. If any provision or
application of this Ordinance is determined by judicial review to be
invalid, such provision shall be deemed ineffective and void, but shall
not render ineffectual the remaining portions of this Ordinance, which
shall remain in full force and effect.
Section 10.2. Effective Date. This Ordinance shall be effective as
of the date on which the Secretary of the Interior certifies this
Ordinance and publishes the same in the Federal Register.
Section 10.3. Repeal of Prior Acts. Any and all prior resolutions,
laws, regulations or ordinances pertaining to the subject matter set
forth in this Ordinance are hereby rescinded and repealed in their
entirety.
Section 10.4. Conformance with State Law and Federal Law. All acts
and transactions under this Ordinance shall be in conformity with the
Compact, the laws of the State of California and applicable Federal Law
as that term is used in 18 U.S.C. 1161, but only to the extent required
by the laws of the United States.
Article XI--Amendments
This Ordinance may be amended only pursuant to a duly enacted
Resolution of the General Council, with certification by the Secretary
of the Interior and publication in the Federal Register, if required.
Wendy Del Rosa,
Chairperson.
Phillip Del Rosa,
Secretary-Treasurer.
[FR Doc. 04-4941 Filed 3-4-04; 8:45 am]