[Federal Register: December 5, 2008 (Volume 73, Number 235)]
[Notices]
[Page 74187-74190]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05de08-95]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Shingle Springs Band of Miwok Indians Liquor Ordinance
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
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SUMMARY: This notice publishes the Liquor Ordinance of the Shingle
Springs Band of Miwok Indians. The Ordinance regulates and controls the
possession, sale and consumption of liquor within the Shingle Springs
Indian Rancheria tribal land. The tribal land is located on trust land
and this Ordinance allows for the possession and sale of alcoholic
beverages. This Ordinance will increase the ability of the tribal
government to control the distribution and possession of liquor within
their tribal land, and at the same time will provide an important
source of revenue and strengthening of the tribal government and the
delivery of tribal services.
DATES: Effective Date: This Ordinance is effective December 5, 2008.
FOR FURTHER INFORMATION CONTACT: Fred Doka Jr., Tribal Operations
Officer, Pacific Regional Office, 2800 Cottage Way, Sacramento, CA
95825, Telephone (916) 978-6067; or Elizabeth Colliflower, Office of
Tribal Services, 1849 C Street, NW., Mail Stop 4513-MIB, Washington, DC
20240; Telephone (202) 513-7627; Fax (202) 501-0679.
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
[[Page 74188]]
Register notice of adopted liquor ordinances for the purpose of
regulating liquor transactions in Indian country. The Tribal Council
for the Shingle Springs Band of Miwok Indians adopted this Liquor
Ordinance on May 17, 2008. The purpose of this Ordinance is to govern
the sale, possession and distribution of alcohol within the Shingle
Springs Band of Miwok Indians tribal land. 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
Liquor Control Ordinance of the Shingle Springs Band of Miwok Indians
was duly adopted by the Tribal Council on May 17, 2008.
Dated: November 24, 2008.
George T. Skibine,
Acting Deputy Assistant Secretary for Policy and Economic Development.
The Liquor Ordinance for the Shingle Springs Band of Miwok Indians
reads as follows:
Shingle Springs Liquor Ordinance
Article 1. Declaration of Findings and Purpose
Sec. 1. Title. This ordinance shall be known as the Shingle
Springs Liquor Ordinance.
Sec. 2. Findings and Purpose.
(a) The introduction, possession, and sale of liquor on the Tribal
Lands of the Shingle Springs Band of Miwok Indians (``Tribe'') are
matters of special concern to the Tribe.
(b) The Tribe is the beneficial owner of the Shingle Springs
Rancheria, upon which it plans to construct and operate a casino and
related entertainment and lodging facilities, which will be an integral
and indispensable part of the Tribe's economy, providing income to the
Tribe and training and employment to its members.
(c) Federal law currently prohibits the introduction of liquor into
Indian County (18 U.S.C. 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. 1161).
(d) Pursuant to Article III of the Tribe's Articles of Association,
the Shingle Springs Tribal Council (Tribal Council) is the governing
body of the Tribe. Pursuant to Article VI of the Articles of
Association, the Tribal Council is empowered to manage, lease, and
operate all unassigned Tribal Lands, to charter tribal enterprises,
corporations, and associations, to administer tribal assets and manage
all economic affairs and enterprises of the Tribe, and to exercise the
Tribe's inherent sovereign authority for the protection of public
health and safety, including regulation of the conduct of all persons
who enter the jurisdiction of the Tribe.
(e) Pursuant to Article I of the Tribe's Articles of Association,
the territorial jurisdiction of the Tribe extends to all lands which
now and hereafter comprise the Shingle Springs Rancheria.
(f) The Tribal Council has, by its Ordinance Establishing and
Governing the Shingle Springs Tribal Gaming Authority (Gaming Authority
Ordinance), created an independent governmental agency of the Tribe,
the Shingle Springs Tribal Gaming Authority (Gaming Authority), and
conferred upon it the full authority of the Tribe to own and operate
the Foothill Oaks Casino and related entertainment and lodging
facilities (collectively Casino), except for the regulatory powers
retained by the Tribal Council and Tribal Gaming Commission as set
forth in the Shingle Springs Gaming Ordinance approved by the National
Indian Gaming Commission, and any regulations promulgated thereunder.
(g) The Tribal Council finds that a complete ban on liquor within
the Shingle Springs Rancheria is ineffective and unrealistic. However,
it recognizes that a need still exists for strict regulation and
control over liquor transactions within Tribal Lands because of the
many potential problems associated with the unregulated or inadequately
regulated sale, possession, distribution, and consumption of liquor.
The Tribal 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 members
of the public on Tribal Lands, and to address specific tribal concerns
relating to alcohol use on Tribal Lands.
(h) The enactment of a tribal ordinance governing the possession
and sale of liquor on Tribal Land will enhance the ability of the
tribal government to control liquor distribution and possession on the
Shingle Springs Rancheria, and, at the same time, will provide an
important source of revenue for the continued operation of the tribal
government and the delivery of essential tribal governmental and social
services.
(i) Tribal regulation of the sale, possession, and consumption of
liquor on Tribal Lands is necessary to protect the health, security,
and general welfare of the Shingle Springs Band and members of the
public on Tribal Lands. In order to further these goals and to provide
for a needed additional source of governmental revenue, the Tribal
Council adopts this Ordinance. This Ordinance shall be liberally
construed to fulfill the purposes for which it has been adopted.
Article II. Definitions
Sec. 1. As used in this Ordinance, the following words shall have
the following meanings unless the context clearly indicates otherwise.
(a) Alcohol. Means ethyl alcohol, ethanol, hydrated oxide of ethyl,
or spirits of wine, in any form, and regardless of source or the
process used for its production.
(b) Alcoholic Beverage. Means any liquid or solid that contains
alcohol in an amount not less than one-half of one percent by volume
and that is fit for human consumption, either alone or when diluted,
mixed, or combined with any other substance(s).
(c) Beer. Means any alcoholic beverage obtained by the fermentation
of an infusion or decoction, or both, of barley, malt, hops or any
other similar product(s), including any cereal(s) or carbohydrates or
products prepared therefrom, or any combination thereof, in potable
water, with or without the addition of carbon dioxide, and with or
without other wholesome products suitable for human consumption, and
includes products such as ale, stout, brown, porter and lager, but not
sake (also known as rice wine).
(d) Bottle. Means any container, irrespective of the material from
which the container is made, that contains liquor.
(e) Liquor. Means any alcoholic beverage, as defined in this
Article.
(f) Minor. For purposes of this Ordinance only, means an individual
who is less than twenty-one (21) years old.
(g) Package. Means any container or receptacle used for holding
liquor.
(h) Sale and Sell. Means the transfer for consideration of any
kind, including by means of exchange or barter.
(i) Spirits. Means any alcoholic beverage which has an alcohol
content that exceeds twenty-four percent of the total volume of that
alcoholic beverage.
(j) Tribal Land(s). Means any land, and any building, structure or
other object thereon, within the exterior boundaries of the Shingle
Springs Rancheria held in trust by the United States for the use and
occupancy of the Shingle Springs Band.
(k) Wine. Means any alcoholic beverage obtained by fermentation of
fruits (grapes, berries, apples, etc.) or other suitable agricultural
products containing not more than twenty-four
[[Page 74189]]
percent of alcohol by volume, and includes all imitation, other than
standard, or artificial product sold as wine, including vermouth, port,
sherry, muscatel, angelica and sake or other products referred to as
rice wine, regardless of whether such products have been fortified with
wine spirits, so long as such product does not contain more than
twenty-four percent of alcohol by volume.
Article III. Tribal Liquor Authority
Sec. 1. There is hereby established the Tribal Liquor Authority
(Authority) which shall have the following powers and responsibilities:
(a) To administer this Ordinance by exercising general control,
management, and supervision of all liquor sales, places of sale, and
sales outlets as well as exercising all powers necessary to accomplish
the purposes of this Ordinance.
(b) To publish and enforce rules and regulations adopted by the
Tribal Council in furtherance of the purposes of this Ordinance and the
performance of the Authority's administrative functions, and to
recommend appropriate rules and regulations to the Tribal Council.
(c) To bring suit in the appropriate court to enforce the
provisions of this Ordinance with the consent of the Tribal Council. In
so doing, the Authority shall not, without the specific consent of the
Tribal Council, waive the Tribe's immunity from suit.
(d) To assume the full authority and responsibility of the Tribe
with respect to the lawful sale and consumption of liquor on Tribal
Land, including the authority to issue permits (including permits
issued to the Gaming Authority or other Tribal entities) for the sale
of liquor on Tribal Land, subject to compliance with applicable State
of California licensing requirements.
(e) To make such reports as may be required by the Tribal Council.
(f) To collect taxes and fees levied or set by the Tribal Council,
and to keep accurate records, books, and accounts thereof.
(g) To exercise such other powers as may be delegated to the
Authority by the Tribal Council.
Sec. 2. Designation of Tribal Liquor Authority. In furtherance of
this Ordinance, and until otherwise designated by the Tribal Council,
the members of the Gaming Authority shall also serve as the members of
the Authority.
Sec. 3. Limitation on Powers, Gratuities.
(a) The members of the Authority shall not accept any gratuity,
compensation or other thing of value from any liquor wholesaler,
retailer, or distributor.
(b) In the exercise of its powers and duties, the Authority and its
individual members shall not waive the immunity of the Tribe from suit
without the express consent of the Tribal Council, except as authorized
by the Gaming Authority Ordinance.
Sec. 4. Inspection Rights. The premises on which liquor is sold or
distributed shall be open for inspection by the Authority at all
reasonable times for the purposes of ascertaining compliance with this
Ordinance, any other ordinance governing liquor on Tribal Land, or any
rule or regulation adopted by the Tribal Council in furtherance of the
purposes of this Ordinance or such other ordinance governing liquor.
Article IV. Sales of Liquor
Sec. 1. Limitations on Sales. No sale of any alcoholic beverage
shall be made on Tribal Land except pursuant to a permit issued by the
Authority.
Sec. 2. All Sales Cash. All liquor sales on Tribal Land shall be
on a cash only basis and no credit shall be extended to any person,
organization, or entity; provided, however, that this provision shall
not prevent payment by means of a check or by the use of a debit card
or a credit card of a type generally accepted by merchants as a means
of making payment for a purchase of liquor.
Sec. 3. All Sales for Personal Use. All sales shall be for
personal use and consumption, and not for resale. Resale of any
alcoholic beverage purchased on Tribal Land is prohibited.
Article V. Taxes
Sec. 1. Sales Tax. There is hereby levied and shall be collected a
tax on each retail sale of alcoholic beverages on Tribal Land in the
amount of 7.25% of the retail sales price. The tax imposed by this
section shall apply to all retail sales of liquor on Tribal Land.
Sec. 2. Payment and Distribution of Taxes. All taxes from the sale
of alcoholic beverages on Tribal Land shall be paid over to the General
Treasury of the Tribe and be subject to use or distribution by the
Tribal Council.
Article VI. Illegal Activities and Enforcement
Sec. 1. Violations.
(a) Illegal Sale of Liquor by Drink or Bottle. It shall be a
violation of this Ordinance for any person to sell any liquor on Tribal
Land, whether by the drink or by the bottle, except as otherwise
provided in this Ordinance.
(b) Illegal Sale, Transportation or Production. It shall be a
violation of this Ordinance for any person to sell or offer for sale,
transport in any manner, or produce any liquor on Tribal Land except in
accordance with this Ordinance.
(c) Illegal Purchase of Liquor. It shall be a violation of this
Ordinance for any person to buy liquor on Tribal Land from any person
other than pursuant to a permit issued by the Authority.
(d) Illegal Possession of Liquor--Intent to Sell. It shall be a
violation of this Ordinance for any person to keep or possess liquor
upon his or her person or in any place or on premises conducted or
maintained by him or her as a principal or agent with the intent to
sell that liquor contrary to the provisions of this Ordinance. In any
proceeding under this Ordinance, proof of one unlawful sale of liquor
shall suffice to establish prima facie the intent or purpose of
unlawfully keeping liquor for sale in violation of this Ordinance.
(e) Sales to Persons Apparently Intoxicated. It shall be a
violation of this Ordinance for any person to sell liquor to a person
who appears intoxicated.
(f) Possession and Use of Liquor by Minors. Except in the case of
liquor administered or validly prescribed by a physician or dentist for
medicinal purposes, it shall be a violation of this Ordinance for any
person under the age of twenty-one (21) to consume, acquire, or have in
his or her possession any alcoholic beverage.
(g) Furnishing Liquor to Minors. It shall be a violation of this
Ordinance for any person to furnish to a person under the age of
twenty-one (21) or to permit any person under the age of twenty-one
(21) to consume liquor on his or her premises or on any premises under
his or her control, except in those special situations set forth in
Section 1(f) of this Article.
(h) Sale of Liquor to Minors. It shall be a violation of this
Ordinance for any person to sell any liquor to any person under the age
of twenty-one (21) years.
(i) Unlawful Transfer of Identification. It shall be a violation of
this Ordinance for any person to transfer in any manner to a minor
identification of any type, including identification of the types
listed in Section 3 of this Article, for the purpose of enabling such
minor to obtain liquor.
(j) Possession or Use or False or Altered Identification. It shall
be a violation of this Ordinance for any person under the age of
twenty-one (21) years to attempt to purchase an alcoholic beverage
through the use of false or altered identification which purports to
show that the individual is twenty-one (21) years of age or older, or
to possess such false or altered
[[Page 74190]]
identification for the purpose of purchasing an alcoholic beverage.
Sec. 2. General Penalties. Any person found to have violated this
Ordinance shall be subject to a civil penalty of not more than five
hundred dollars ($500.00) for the first such violation. The Authority
may adopt by separate rule or regulation a schedule of fines for each
type of violation, taking into account its seriousness and the threat
it may pose to the general health and welfare of tribal members and to
patrons of the Tribe's business establishment(s). Such schedule may
also provide, in the case of repeated violations, for imposition of
monetary penalties greater than the five hundred dollar ($500.00)
limitation set forth above. The penalties provided for herein shall be
in addition to any criminal penalties which may be imposed by federal,
state or Tribal law.
Sec. 3. Identification--Proof of Minimum Age. Where there may be a
question of a person's right to purchase liquor by reason of his or her
age, such person shall be required to present anyone of the following
officially issued cards of identification which shows correct age and
bears his/her signature and photograph:
(a) A valid driver's license or identification card issued by any
State.
(b) United States Active Duty Military identification.
(c) Passport.
Sec. 4. Contraband. Any alcoholic beverage possessed contrary to
the terms of this Ordinance is declared to be contraband. Any tribal
officer, employee, or other agent of any kind who is authorized by the
Tribal Council to enforce this Ordinance shall seize all such
contraband, and shall preserve that contraband or cause it to be
preserved in accordance with the provisions established for the
preservation of impounded property under applicable Tribal law, or, in
the absence of such Tribal law, under California law. Upon being found
in violation of this Ordinance by the Tribal Court, or in the absence
of a Tribal Court by a majority of the Tribal Council, the party from
whom the contraband was seized shall forfeit all right, title and
interest in the item(s) seized, which shall become the property of the
Tribe.
Article VII. Abatement
Sec. 1. Declaration of Nuisance. 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 or regulation relating to the manufacture, importation,
transportation, possession, distribution, or sale of liquor, and all
property kept in and used in maintaining such place, are hereby
declared to be a common nuisance.
Sec. 2. Institution of Action.
The Chair of the Authority or, if the Chair of the Authority fails
or refuses to do so, the Chair of the Tribal Council, shall institute
and maintain an action in the proper court in the name of the Tribe to
abate and perpetually enjoin any nuisance declared under this
Ordinance. 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, house, building, vehicle, structure, or place
closed for a period of one year or until the owner, lessee, tenant, or
occupant thereof shall give bond of sufficient sum (but in any event
not less than $10,000) payable to the Tribe and conditioned that liquor
thereafter will not be manufactured, kept, sold, bartered, exchanged,
given away, furnished, or otherwise disposed of thereof in violation of
the provisions of this Ordinance or any other applicable Tribal law,
and that such person will pay all fines, costs and damages assessed for
any violation of this Ordinance or any other Tribal law or regulation
pertaining to alcohol. If any condition of the bond be violated, the
whole amount may be recovered for the use of the Tribe.
Sec. 3. Prima Facie Evidence of Nuisance. In all cases where any
person has been found responsible for a violation of this Ordinance
relating to the manufacture, importation, transportation, possession,
distribution, or 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 VIII. Severability and Effective Date
Sec. 1. If any provision or application of this Ordinance is
determined by a court of competent jurisdiction to be invalid, such
adjudication shall not be held to render ineffectual the remaining
portions of this Ordinance or to render such provisions inapplicable to
other persons or circumstances.
Sec. 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.
Sec. 3. Any and all prior enactments of the Tribal Council which
are inconsistent with the provisions of this Ordinance are hereby
rescinded.
Sec. 4. All acts and transactions under this Ordinance shall be in
conformity with the laws of the State of California as that term is
used in 18 U.S.C. 1161.
Article IX. Amendment
This Ordinance may be amended only by a majority vote of the Tribal
Council.
[FR Doc. E8-28800 Filed 12-4-08; 8:45 am]
BILLING CODE 4310-4J-P
