[Federal Register Volume 75, Number 110 (Wednesday, June 9, 2010)]
[Notices]
[Pages 32813-32816]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13809]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
St. Croix Chippewa Indians of Wisconsin Alcoholic Beverage
Control Ordinance
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: This notice publishes the Secretary's certification of the
amended St. Croix Chippewa Indians of Wisconsin Alcoholic Beverage
Control Ordinance. The amended Ordinance regulates and controls the
possession, sale, and consumption of liquor within the tribal lands.
The tribal lands are located in Indian Country and this Ordinance
allows for possession and sale of alcoholic beverages within their
boundaries. This Ordinance will increase the ability of the tribal
government to control the tribe'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 July 12, 2010.
FOR FURTHER INFORMATION CONTACT: David Christensen, Tribal Operations
Officer, Midwest Regional Office, One Federal Drive, Room 550, Ft.
Snelling, MN 55111, Telephone (612) 725-4554; or Elizabeth Colliflower,
Office of Tribal Services, 1849 C Street, NW., Mail Stop 4513-MIB,
Washington, DC 20240; Telephone (202) 513-7640.
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 St. Croix Tribal Council of the
adopted this amended Liquor Ordinance on December 3, 2009. The purpose
of this Ordinance is to govern the sale, possession and distribution of
alcohol within the St. Croix tribal lands.
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 Alcoholic Beverage Control Ordinance was
duly adopted by the Tribal Council of the St. Croix Chippewa Indians of
Wisconsin by Resolution No. 12-3-09-01 on December 3, 2009.
Dated: June 1, 2010.
Paul Tsosie,
Chief of Staff, Office of the Assistant Secretary--Indian Affairs.
The St. Croix Chippewa Indians of Wisconsin Alcoholic Beverage
Control Ordinance reads as follows:
St. Croix Chippewa Indians of Wisconsin
Alcoholic Beverage Control Ordinance
The St. Croix Chippewa Indians of Wisconsin, a federally
recognized Indian Tribe organized pursuant to the Act of June 18,
1934 (48 Stat. 984), acting pursuant to Article V of the
Constitution of the St. Croix Chippewa Indians of Wisconsin and the
Act of August 15, 1953, Public Law 83-277, 18 U.S.C. 1161, hereby
establishes and enacts this Ordinance to authorize, license and
regulate alcoholic beverages within the Indian country under the
jurisdiction of the St. Croix Chippewa Indians of Wisconsin.
Section 1. Title
This Ordinance shall be known as the St. Croix Chippewa Indians
of Wisconsin Alcoholic Beverage Control Ordinance.
Section 2. Definitions
As used in this Ordinance:
(a) ``Alcoholic Beverages'' shall mean fermented malt beverages
and intoxicating liquor.
(b) ``Fermented Malt Beverages'' shall mean any beverage made by
the alcohol fermentation of an infusion in potable water of barley
malt and hops, with or without unmalted grains or decorticated and
degerminated grains or sugar containing 0.5% or more of alcohol by
volume.
(c) ``License'' shall mean any Class A or Class B Beer License,
any Class A or Class B Liquor License, and any Beer or Liquor
Wholesalers License.
(d) ``Intoxicating Liquor'' shall mean all ardent, spirituous,
distilled or vinous liquors, liquids or compounds, whether
medicated, proprietary, patented or not, and by whatever name
called, containing 0.5% or more of alcohol by volume, which are
beverages, but does not include ``Fermented Malt Beverages.''
(e) ``Minor'' shall mean any person under twenty-one (21) years
of age.
(f) ``Tribe'' shall mean the St. Croix Chippewa Indians of
Wisconsin.
(g) ``Council'' shall mean the duly elected governing body of
the St. Croix Chippewa Indians of Wisconsin.
(h) ``Package'' shall mean the original container or receptacle
used for holding intoxicating liquor or fermented malt beverages.
(i) ``Possession'' or ``Possessing'' shall mean control over
one's person, vehicle or other property and includes constructive
possession through control without regard to ownership.
(j) ``Premises'' shall mean the area described in a License.
(k) ``Purchase'' shall mean exchange, barter, traffic, receipt,
with or without consideration in any form.
(l) ``Sale'' shall mean 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.
(m) ``Transportation'' or ``Transport'' shall mean the
introduction of alcoholic beverage onto the Indian country under the
jurisdiction of the Tribe by any means of conveyance for the purpose
of sale or distribution.
Section 3. Conformity With Tribal and State Law Required
The introduction, possession, transportation, and sale of
alcoholic beverages shall be lawful within the Indian country under
the jurisdiction of the Tribe, provided that such introduction,
possession, transportation, and sale are in conformity with the
provisions of this Ordinance and the laws of the State of Wisconsin
pursuant to 18 U.S.C. 1161.
Section 4. Tribal License Required
No person or entity shall engage in the sale of any alcoholic
beverage within the Indian country under the jurisdiction of the
Tribe, unless duly licensed to do so by the State of Wisconsin and
the Tribe in accordance with the terms of this Ordinance.
Section 5. Retail License Classes
The Council may issue licenses to retailers in the following
classes.
(a) ``Class A Beer License,'' shall authorize the retail sale of
fermented malt beverages only for consumption away from the premises
where sold and in the original packages, containers or bottles.
(b) ``Class B Beer License,'' shall authorize the retail sale of
fermented malt beverages either for consumption on or off the
premises where sold and in the original packages, containers or
bottles if sold for off premises consumption.
(c) ``Class A Liquor License,'' shall authorize the retail sale
of alcoholic beverages only for consumption away from the premises
where sold and in the original packages, containers or bottles.
(d) ``Class B Liquor License,'' shall authorize the sale of
alcoholic beverages to be consumed by the glass only on the premises
where sold and also authorizes the sale of alcoholic beverages in
the original package or container, to be consumed off the premises
where sold.
(e) ``Temporary License,'' shall be a Class B Beer License
issued to bonafide clubs, fair
[[Page 32814]]
associations or agricultural societies, fraternal organizations, or
veterans organizations for particular meetings, picnics, or similar
gatherings for not more than seven days.
Section 6. Wholesale License Classes
The Council may issue licenses to wholesalers in the following
classes:
(a) ``Beer Wholesaler License,'' shall authorize the sale of
fermented malt beverages from premises located within Indian country
under the jurisdiction of the Tribe, only in the original package or
container, to retailers or wholesalers, not to be consumed in or
about the premises where sold.
(b) ``Liquor Wholesaler License,'' shall authorize the sale of
alcoholic beverages from premises located within Indian country
under the jurisdiction of the Tribe, only in the original package or
container in quantities of not less than four liters at any one time
to retailers or wholesalers, not to be consumed in or about the
premises where sold.
Section 7. License Fees
The Council shall by resolution set the annual fee for each
class of license and combination thereof. The fee shall be prorated
for the remaining months of the year if the License is obtained
after March 1.
Section 8. Application for Tribal License; Requirements
Application for a License shall be made to the Council by the
person or authorized representative of the entity which seeks to
sell and serve alcoholic beverages. No Tribal License shall issue
under this Ordinance except upon sworn application, containing a
full and complete showing of the following:
(a) The name and address of the person or entity making the
application;
(b) If the applicant is a corporation, partnership, or other
non-governmental entity, identification of all persons or entities
holding an ownership interest of ten percent (10%) or more in that
entity and all persons having authority to control or manage the
entity. All such individuals are referred to hereinafter as ``owners
and managers'';
(c) The description of the premises in which the alcoholic
beverages are to be sold and proof that the applicant is the owner
of the premises, or the lessee of the premises for the term of the
License;
(d) Agreement by the applicant, its owners and managers, to
accept and abide by all conditions of the Tribal License, to obey
all Tribal ordinances, regulations, and other applicable Tribal law,
and to consent to the jurisdiction of the Tribal Court for
enforcement of all applicable law;
(e) Satisfactory proof that the applicant, its owners and
managers, are of good character and reputation and that the
applicant, its owners and managers are financially responsible;
(f) Agreement by the applicant, and all of the applicant's
owners and managers, to submit to and satisfactorily pass a criminal
history and financial background check. An applicant or any of its
owners or managers will be found to have failed a criminal history
background check if any of them have been convicted of or pled
guilty to any felony at any time, or any misdemeanor within the last
five years that involved or related to: liquor, controlled
substances, violence, theft, dishonesty, bribery, obstruction of law
enforcement, tampering with witnesses, gambling, exploitation of
children or any other crime where a child is the victim, any crime
involving loss or destruction of Tribal property, as well as
conspiracy or attempt to commit any of the foregoing crimes. An
applicant or any of its owners or managers will be found to have
failed a financial background check if any of them have declared
bankruptcy or insolvency within the past five years, are delinquent
on any debt owed to or guaranteed by the Tribe, any agency of the
Tribe, or corporation owned or controlled by the Tribe, or any of
them have any other delinquent debts or obligations which indicate
that the applicant is not financially responsible;
(g) Information stating whether the applicant, its owners and
managers, have previously applied for a liquor license from any
jurisdiction, the name of the jurisdiction, the date(s) of such
application, whether the license was granted, and if granted, the
period the license was in effect, and satisfactory proof that the
applicant, its owners and managers, have not previously been denied
a liquor license, or found to have violated the terms or conditions
of any liquor license, or had any liquor license revoked or
cancelled;
(h) Evidence that the applicant is or will be duly licensed
under the laws of the State of Wisconsin;
(i) 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 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 Chairman or Secretary may authorize.
The notice shall state the date, time and place when the application
shall be considered by the Council;
(j) Payment of a non-refundable application fee of $250, or $50
for a Temporary License;
(k) Such other information as the Council may require.
Section 9. Hearing on Application for a License
All applications for a License shall be acted upon by the
Council within 45 days from the time a completed application is
received by the Council. All applications for a License shall be
considered by the Council in open session at which the applicant,
and any person(s) supporting or opposing 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
Council, by secret ballot, shall determine whether to grant or deny
the application, based on whether the Council, in its discretion,
determines that granting the License is in the best interests of the
Tribe, including the health and safety of the public.
Section 10. Conditions of a License
Any Tribal License issued under this Ordinance shall be subject
to such reasonable conditions as the Council shall fix including,
but not limited to, the following:
(a) The License (other than a Temporary License) shall be for a
term of not more than one year and each License shall expire on
January 1. A Temporary License shall be for a specified period of
not to exceed seven days.
(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 the
Tribal Police Department, and such other law enforcement officials
as may be authorized under Tribal, federal or state law, and the
licensee shall cooperate with all duly authorized law enforcement
officers.
(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 (f) of this section,
no alcoholic beverages shall be sold, served, disposed of,
delivered, or given to any person, or consumed on a licensed
premises except in conformity with the hours and days prescribed by
the laws of Wisconsin, and in accordance with the hours and days
fixed by the Council, provided that the licensed premises shall not
open earlier or operate or close later than is permitted by the laws
of Wisconsin.
(f) No alcoholic beverages shall be sold:
(1) Within 200 feet of a polling place on tribal election days,
or when a referendum is held of the people of the Tribe, or
(2) On special days of observance as designated by the Council.
(g) All acts and transactions under authority of a Tribal
License shall be in conformity with the License, this Ordinance, and
other applicable Tribal and State law.
(h) No person under the age of 21 shall be sold, served,
delivered, given or allowed to consume alcoholic beverages in or by
a licensee. Where there may be a question of a person's right to
purchase an alcoholic beverage by reason of his or her age, such
person shall be required to present any one of the following forms
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 tribe or identification
card issued by any state or tribal department of motor vehicles;
(2) United States active duty military ID;
(3) A passport; or
(4) A St. Croix Chippewa tribal identification card or other
recognized tribal identification card.
(i) Licenses, except for Temporary Licenses, shall expire
January 1 of each year. Any person or entity seeking a License for a
subsequent year shall, by November 15 of the prior year, comply with
the procedures and meet all the requirements of Sections 8 and 9 of
this Ordinance.
(j) Every licensee shall post and keep its License in a
conspicuous place on the premises.
Section 11. Prohibited Activities
It shall be a violation of this Ordinance for any person:
(a) To sell or offer for sale or distribute or transport in any
manner, any alcoholic
[[Page 32815]]
beverage or to have alcoholic beverages in his possession with
intent to sell or distribute without a License;
(b) To buy any alcoholic beverage from any person other than a
person or entity holding a License as required by this Ordinance;
(c) To sell or provide any alcoholic beverage to any person
under the age of 21 years;
(d) To permit any person under the age of 21 years to consume
any alcoholic beverage on his or her premises or any premises under
his or her control;
(e) To transfer in any manner an identification of age to a
minor for the purpose of permitting such minor to obtain any
alcoholic beverage;
(f) To attempt to purchase an alcoholic beverage through the use
of a false or altered identification;
(g) To consume, acquire or have in his or her possession any
alcoholic beverage while under 21 years of age.
(h) To sell alcoholic beverages during hours not permitted by
Tribal law.
(i) To sell alcoholic beverages to any person known or believed
to be intoxicated.
Section 12. Enforcement
(a) Criminal Penalties. A violation of this Ordinance by any
person subject to the criminal jurisdiction of the Tribe is a
misdemeanor and may be prosecuted by the Tribe pursuant to Title--of
the Tribal Code.
(b) Civil fines. The Tribe may bring a civil action in the
Tribal Court against any person or entity for violation of this
Ordinance or the terms of a License issued under this Ordinance, and
a person found to have violated this Ordinance or the terms of a
License issued under the Ordinance may be subject to a civil fine of
not to exceed $5,000 per violation.
(c) Injunctive relief. The Tribe may bring a civil action in the
Tribal Court against any person or entity to enjoin a violation of
this Ordinance.
(d) Contraband. Alcoholic beverages confiscated from any person
found in violation of this Ordinance are declared to be contraband.
Where a person is found to have violated this Ordinance, all
alcoholic beverages in such person's possession shall be contraband.
Any tribal agent, employee, or officer who is authorized by the
Council to enforce this Ordinance shall have the authority to, and
shall, seize all contraband. Any officer seizing contraband shall
preserve the contraband in accordance with applicable Tribal and
State law. Upon being found in violation of this Ordinance by the
Tribal Court, the party shall forfeit all right, title and interest
in the items seized which shall become the property of the Tribe.
(e) Notice of violation.
(1) The Council may appoint a law enforcement officer or other
person as Alcoholic Beverage Control Agent (``Agent'') for the
purpose of investigating, reporting and seeking corrective action
with respect to violations of this Ordinance and Licenses under this
Ordinance. Where it appears, based on an investigation done by the
Agent, that a violation has occurred, but may be cured by having the
licensee take corrective action, the Agent may issue a written
Notice of Violation to the licensee describing the violation and, as
appropriate, describing the corrective action to be taken. A copy of
the Notice of Violation shall also be provided to the Council.
(2) The appropriate corrective action will depend on the
specific facts and circumstances of the violation as well as any
history of prior violations with regard to the licensee. Corrective
action may include, but will not necessarily be limited to,
requirements for additional management or employee training, the
improvement of internal polices and procedures, and the taking of
appropriate personnel action with regard to negligence or misconduct
by an employee of the licensee. The Notice of Violation will also
require the licensee to submit a written report to the Agent, with a
copy to the Council, on the corrective action taken and shall set a
deadline by which this is to occur.
(3) If the licensee disputes the findings contained in the
Notice of Violation or the directive on corrective action, the
licensee shall submit to the Agent, within five business days of
receipt of the Notice, a written statement of the basis for its
disagreement and any evidence in support of its position. A copy
shall also be provided to the Council. The Agent will then review
the licensee's response, conduct such additional investigation as
the Agent deems appropriate, and then submit to the licensee a
written notice that either reconfirms, modifies or withdraws the
original Notice of Violation.
(4) If the licensee continues to dispute the findings contained
in the Notice of Violation or the directive for corrective action,
the licensee may appeal that Notice by submitting to the Agent and
the Council, within 5 business days from receipt of the Agent's
final decision, a written request for a hearing before the Council.
The Council shall send written notices of the hearing to the
licensee and the Agent, on the time and place of the hearing. A
decision by the Council on an appeal from a Notice of Violation
shall be final.
(f) Suspension or revocation of License.
(1) Any License issued under this Ordinance may be suspended or
revoked by the Council for violation of any of the provisions of
this Ordinance, or of the Tribal License. The Council may consider
License suspension or revocation based on information provided by
the Alcoholic Beverage Control Agent, or a member of the public. A
Notice of Violation is not required prior to Council consideration
of suspension or revocation of a License.
(2) A License shall not be suspended or revoked except following
a hearing before the Council after 10 days notice to the licensee.
The notice will be delivered in person or by certified mail with the
Council retaining proof of service. The notice will set out the
rights of the alleged violator, including but not limited to the
right to an attorney to represent the alleged violator, the right to
speak and to present witnesses and to cross-examine any witnesses
against them.
(3) The Council shall grant all persons in any hearing regarding
a License suspension or revocation all the rights and due process
granted by the Indian Civil Rights Act, 25 U.S.C. 1302, et seq. At
the hearing, the grounds for the alleged violation shall be
presented by the Agent, or such other person as may be designated
for such purpose by the Council. Upon hearing the evidence presented
and finding that a breach of this Ordinance or the terms and
conditions of any License has occurred, the Council shall have the
authority to impose one or more of the following sanctions:
(i) Issue a written reprimand for a minor violation;
(ii) Impose conditions on the License or require that the
licensee take corrective action, including, but not limited to,
requirements for additional management or employee training,
improvement of internal policies and procedures, the taking of
appropriate personnel action with regard to negligence or misconduct
by an employee of the licensee;
(iii) Impose a civil fine of not to exceed $5,000 per violation;
(iv) Suspend the license for a specified period of time; or
(v) Revoke the license.
The decision of the Council shall be final.
Section 13. License Not a Property Right
Notwithstanding any other provision of this Ordinance, a License
under this Ordinance is a mere permit for a fixed duration of time.
A License under this Ordinance shall not be deemed a property right
or vested right of any kind, nor shall the granting of a License
under this Ordinance give rise to a presumption or legal entitlement
to the granting of such License for a subsequent time period.
Section 14. Assignment or Transfer
No tribal License issued under this Ordinance shall be assigned
or transferred without the written approval of the Council expressed
by formal resolution and upon prior satisfaction of the conditions
required for a License as set out in Sections 8 and 9.
Section 15. Severability
If a court of competent jurisdiction invalidates any part of
this Ordinance, all valid parts that are severable from the invalid
part shall remain in effect. If a part of this Ordinance is invalid
in one or more of its applications, that part shall remain in effect
in all valid applications that are severable from the invalid
applications.
Section 16. Repealer
All prior Tribal ordinances regulating alcoholic beverages
within the Indian country under the jurisdiction of the Tribe,
including the Ordinance approved by the Council pursuant to
Resolution 5-18-92-1, are hereby repealed, upon the effective date
of this Ordinance.
Section 17. Sovereign Immunity
Notwithstanding any other provision of law, nothing contained in
this Ordinance in any way limits, alters, restricts, or waives the
Tribe's sovereign immunity.
Section 18. Effective Date
This Ordinance shall be effective upon its certification by the
Secretary of the Interior
[[Page 32816]]
and its publication 30 days after publication in the Federal
Register.
[FR Doc. 2010-13809 Filed 6-8-10; 8:45 am]
BILLING CODE 4310-4J-P