[Federal Register Volume 76, Number 16 (Tuesday, January 25, 2011)]
[Notices]
[Pages 4366-4369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1391]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Iipay Nation of Santa Ysabel Liquor Control Law
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
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SUMMARY: This notice publishes Liquor Control Law No. LB-06-08 of the
Iipay Nation of Santa Ysabel (Nation). The Liquor Control Law regulates
and controls the possession, sale, and consumption of liquor within the
tribal lands. The tribal lands are located in Indian country and this
Liquor Control Law allows for possession and sale of alcoholic
beverages within their boundaries. The Liquor Control Law contains
provisions requiring the Nation to issue licenses to all businesses
that intend to sell liquor. This Liquor Control Law 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.
DATES: Effective Date: This Liquor Control Law is effective on January
25, 2011.
FOR FURTHER INFORMATION CONTACT: Fred Doka, Tribal Government Services
Officer, Pacific Regional Office, 2800 Cottage Way, Sacramento, CA
95825, Telephone (916) 978-6067; or Elizabeth Colliflower, Office of
Indian Services, 1849 C Street, NW., Mail Stop 4513-MIB, 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 Legislature of the Nation adopted
Bill No. LB 06-08, Liquor Control Law, on October 8, 2008. The purpose
of the Liquor Control Law is to govern the distribution, possession,
consumption and sale of liquor within tribal lands of the 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 the Legislature of the Iipay Nation of Santa
Ysabel adopted its Liquor Control Law, LB 06-08, on October 8, 2008.
Dated: January 11, 2011.
Larry Echo Hawk,
Assistant Secretary--Indian Affairs.
The Liquor Control Law of the Iipay Nation of Santa Ysabel reads as
follows:
LIQUOR CONTROL LAW
ARTICLE I--TITLE.
Section 1.1. This law shall be referred to as the ``Liquor
Control Law'' or the ``Liquor Control Ordinance'' (``Ordinance'').
ARTICLE II--FINDINGS.
Section 2.1. The Legislature finds:
(a) The Iipay Nation of Santa Ysabel (``Nation'') owns and
operates the new Santa Ysabel Resort and Casino (``Casino'') within
the Territory of the Nation; and,
(b) The sale of alcoholic beverages at the Casino provides an
amenity to the customers of the Casino and directly impacts the
overall financial success of the Casino.
ARTICLE III--DECLARATION OF PUBLIC POLICY AND PURPOSE.
Section 3.1. The distribution, possession, consumption and sale
of liquor on the Santa Ysabel Indian Reservation (``Reservation'')
is a matter of special concern to the Nation.
Section 3.2. Federal law, as codified at 18 U.S.C. 1154, 1161,
currently prohibits the introduction of liquor into Indian country,
except in accordance with State Law and the duly enacted law of the
Nation. By adoption of this Ordinance, it is the intention of the
Legislature to establish a law regulating the sale, distribution and
consumption of Liquor and to ensure that such activity conforms with
all applicable provisions of the laws of the State of California and
all applicable Federal laws.
Section 3.3. The Legislature, as the legislative body of the
Nation vested with legislative powers, has the authority pursuant to
Article V, Section 2 of the Constitution of the Nation
(``Constitution'') to administer the Nation's assets and manage all
economic affairs and enterprises of the Nation, as well as has the
inherent right to enact ordinances and laws to safeguard and provide
for the health, safety and welfare of the Reservation Community.
Accordingly, the Legislature has determined that it is in the best
interests of the Nation to enact a law governing the distribution,
possession, consumption and sale of liquor within the exterior
boundaries of the Reservation.
Section 3.4. The Legislature 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 3.5. The Legislature has determined that any sale or
other commercial distribution of Liquor on the Reservation, other
than sales and distribution in strict compliance with this
Ordinance, is detrimental to the health, safety and welfare of the
members of the Nation and is therefore prohibited.
Section 3.6. Based upon the foregoing findings and
determinations, the Legislature hereby enacts this Liquor Control
Ordinance.
ARTICLE IV--DEFINITIONS
As used in this Ordinance, the following words shall have the
following meanings, unless the context clearly requires otherwise.
Section 4.1. Alcohol. 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 all dilutions and
mixtures of this substance.
Section 4.2. Alcoholic Beverage. Shall be defined identically in
meaning to the term ``liquor'' as defined herein.
Section 4.3. Bar. Any establishment with special space and
accommodations for sale by the glass and for consumption on the
premises, of liquor, as herein defined.
Section 4.4. Beer. Any beverage obtained by the alcoholic
fermentation at an infusion or concoction 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 4.5. Gaming Compact. The federally approved Tribal-State
Compact, dated September 10, 2003, between the State of California
and the Nation.
Section 4.6. Liquor. 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 that contains more
than one percent (1%) of alcohol by weight, shall be conclusively
deemed to be intoxicating.
Section 4.7. Liquor Store. Any store at which liquor is sold
and, for the purpose of
[[Page 4367]]
this Ordinance, including any store only a portion of which is
devoted to the sale of liquor or beer.
Section 4.8. Licensed Wholesaler. A wholesale seller of liquor
that is duly licensed by the Nation and the State.
Section 4.9. Malt liquor. Beer, strong beer, ale, stout and
porter.
Section 4.10. Package. Any container or receptacle used for
holding liquor.
Section 4.11. 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 4.12. Sale and Sell. 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 4.13. Special Event. Any social, charitable or for-
profit discreet activity or event conducted by the Nation or any
enterprise on Tribal Lands at which Liquor is sold or proposed to be
sold.
Section 4.14. Spirits. Any beverage, which contains alcohol
obtained by distillation, including wines exceeding seventeen
percent (17%) of alcohol by weight.
Section 4.15. State Law. 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 4.16. Legislature. The legislative body of the Nation as
defined in the Constitution.
Section 4.17. Nation. Means or refers to the Iipay Nation of
Santa Ysabel, a federally recognized Indian tribe.
Section 4.18. Tribal Enterprise. Any business entity, operation
or enterprise owned, in whole or in part, by the Nation.
Section 4.19. Tribal Land. All land within the exterior
boundaries of the Santa Ysabel Indian Reservation that is held in
trust by the United States for the benefit of the Tribe.
Section 4.20. Wine. 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 V--ENFORCEMENT
Section 5.1. Executive Powers. The Chairman of the Nation, as
the official vested with the executive powers of the Nation under
the Article VI, Section 2 of the Constitution and/or his
designee(s), 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 Santa Ysabel Indian Reservation as the
Chairman deems necessary.
(b) Employ managers, accountants, security personnel, inspectors
and such other persons as shall be reasonably necessary to allow the
Chairman or his designee(s) to exercise the authority as set forth
in this Ordinance.
(c) Issue licenses permitting the sale and/or distribution of
Liquor on the Santa Ysabel Indian Reservation.
(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, in the case of any Chairman
designee(s), make such reports to the Legislature as may be
appropriate;
(h) Collect sales taxes and fees levied or set by the Chairman
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 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 necessary and
appropriate, and in the case of any Chairman designee(s), delegated
from time to time by the Chairman, to implement and enforce this
Ordinance.
Section 5.2. Limitation on Powers. In the exercise of his powers
and duties under this Ordinance, the Chairman, his designee(s), and
their 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
law enacted by the Legislature, such waiver being subject to the
following limitations: the waiver must be transaction specific,
limited as to scope, duration and beneficiary, include a provision
that limits recourse only to specified assets or revenues of the
Nation or the Nation's entity, and specify the process and venue for
dispute resolution, including applicable law.
Section 5.3. Inspection Rights. The public places on or within
which liquor is sold or distributed shall be open for inspection by
the Chairman or his designee(s) at all reasonable times for the
purposes of ascertaining compliance with this Ordinance and other
regulations promulgated pursuant hereto.
ARTICLE VI--LIQUOR SALES
Section 6.1. License Required. No distribution or sales of
Liquor shall be made on or within public places within the exterior
boundaries of the Santa Ysabel Indian Reservation, except at a duly
licensed and authorized Special Event, a Tribal Enterprise, Bar, or
Liquor Store located on Tribal Lands.
Section 6.2. Sale only on Tribal Land. All liquor sales within
the exterior boundaries of the Reservation shall be on Tribal Land,
including leases thereon.
Section 6.3. 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 6.4. 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 are over the 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 subject to exclusion from
the Reservation or liability for money damages of up to five hundred
dollars ($500), as determined by the Chairman or his designee(s)
after notice and an opportunity to be heard.
Section 6.5. Compliance Required. All distribution, sale and
consumption of liquor within the Law.
ARTICLE VII--LICENSING
Section 7.1. 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 Santa Ysabel Indian
Reservation must apply to the Chairman or his designee(s) 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 7.2. 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 Santa Ysabel Indian
Reservation 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
license issued by the Nation shall automatically be revoked or
suspended.
Section 7.3. Application. Any person applying for a license to
sell or provide liquor on the Santa Ysabel Indian Reservation shall
complete and submit an application provided for this purpose by the
Chairman or his designee(s) and pay such application fee as may be
set from time to time by the Chairman for this purpose. An
incomplete application will not be considered. The Chairman shall
establish licensing procedures and application forms for
wholesalers, retailers and special events.
Section 7.4. Issuance of License. The Chairman or his designee
may issue a license if he believes such issuance is in the best
interests of the Nation, the residents of the
[[Page 4368]]
Santa Ysabel Indian Reservation 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 Chairman.
Section 7.5. Period of License. Each license may be issued for a
period not to exceed two (2) years from the date of issuance.
Section 7.6. 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 Chairman or his designee may refuse to renew a license
if he finds that doing so would not be in the best interests of the
health and safety of the members of the Nation and the other
residents of the Santa Ysabel Indian Reservation.
Section 7.7. Revocation of License. The Chairman or his designee
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 7.8. Transferability of Licenses. Licenses issued by the
Chairman or his designee shall not be transferable and may only be
utilized by the person or entity in whose name it was issued.
ARTICLE VIII--TAXES
Section 8.1. Sales Tax. The Chairman shall have the authority to
impose a sales tax on all wholesale and retail liquor sales that
take place within the Reservation. Such tax may be implemented by
duly promulgated regulation issued by the Chairman or his designee
pursuant to this Ordinance. Any tax imposed by authority of this
Section shall apply to all retail and wholesale sales of liquor
within the Reservation, and to the extent permitted by law shall
preempt any tax imposed on such liquor sales by the State of
California.
Section 8.2. Payment of Taxes to the Nation. All taxes imposed
pursuant to this Article VIII shall be paid over to the Nation and
be subject to distribution by the Legislature in accordance with its
usual appropriation procedures for essential governmental functions
and social services, including administration of this Ordinance.
ARTICLE IX--RULES, REGULATIONS, AND ENFORCEMENT
Section 9.1. 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 9.2. 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 Chairman or his designee. Nothing in this
Ordinance shall apply to the possession or transportation of any
quantity of liquor by members of the Nation or other persons located
within the Reservation for their personal or other noncommercial
use, and the possession, transportation, sale, consumption or other
disposition of liquor outside public places on the Santa Ysabel
Indian Reservation shall be governed solely by the laws of the State
of California.
Section 9.3. Illegal Purchases. Any person within the boundaries
of the Santa Ysabel Indian Reservation 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 9.4. 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 9.5. 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 9.6. 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 9.7. Civil Penalty. Any person guilty of a violation of
this Ordinance shall, be liable to pay the Nation the amount of two
hundred fifty dollars ($250) per violation as civil damages to
defray the Nation's cost of enforcement of this Ordinance. The
payment of such damages in each case shall be determined by the
Chairman or his designee based upon a preponderance of the evidence
available to it after the person alleged to have violated this
Ordinance has been given notice, hearing and an opportunity to
respond to such allegations.
Section 9.8. 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.
ARTICLE X--ABATEMENT
Section 10.1. 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 10.2. Abatement of Nuisance. The Chairman shall
institute and maintain an action in the Judicial Branch of the
Nation, or another court of competent jurisdiction, in the name of
the Nation to abate and perpetually enjoin any nuisance declared
under this title. Upon establishment of probable cause 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 Nation and
conditioned that liquor will not be thereafter be 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 law of the Nation, and that s/he will pay
all fines, costs and damages assessed against him/her for any
violation of this title or other liquor laws of the Nation. If any
conditions of the bond should be violated, the whole amount may be
recovered for the use of the Nation.
Section 10.3. Evidence. In all cases where any person has been
found responsible for a violation of this Ordinance relating to
manufacture, importation, transportation, possession, distribution
or 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 facie evidence that the room, house,
building, vehicle, structure, or place against which such action is
brought, is a public nuisance.
ARTICLE XI--USE OF PROCEEDS
Section 11.1. Application of Proceeds. The gross proceeds
collected by the Nation from all Licensing of the sale of alcoholic
beverages within the Reservation 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 Nation and expended by the Legislature for governmental
services and programs on the Reservation in accordance with the
requirements of the Constitution.
ARTICLE XII--MISCELLANEOUS PROVISIONS
Section 12.1. 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 12.2. 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 12.3. 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.
[[Page 4369]]
Section 12.4. Conformance with State Law. All acts and
transactions under this Ordinance shall be in conformity with the
Compact and the laws of the State of California to the extent
required by 18 U.S.C. Sec. 1161 and with all Federal laws regarding
alcohol in Indian Country.
ARTICLE XIII--AMENDMENTS
This Ordinance may be amended only pursuant to a law duly
enacted by the Legislature with certification by the Secretary of
the Interior and publication in the Federal Register, if required.
ARTICLE XIV--SOVEREIGN IMMUNITY
Nothing contained in this Ordinance is intended to nor does it
in any way limit, alter, restrict, or waive the Nation's sovereign
immunity from unconsented suit or action.
ARTICLE XV--SEVERABILITY
If any provision of this Act is held to be void, or
unenforceable, it shall be considered deleted from this Act and the
invalidity of such provision shall not affect the validity or
enforceability of any other provision which shall be given effect in
the absence of the invalid provision. The remaining provisions shall
continue in full force and effect without being invalidated.
[FR Doc. 2011-1391 Filed 1-24-11; 8:45 am]
BILLING CODE 4310-4J-P