Bureau of Indian Affairs La Posta Band of Mission Indians-Liquor Control Ordinance, 35294-35298 [05-11982]

Agencies

• DEPARTMENT OF THE INTERIOR
• Indian Affairs Bureau

[Federal Register Volume 70, Number 116 (Friday, June 17, 2005)]
[Notices]
[Pages 35294-35298]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-11982]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR


Bureau of Indian Affairs La Posta Band of Mission Indians--Liquor 
Control Ordinance

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: This notice publishes the La Posta Band of Mission Indians 
Liquor Control Ordinance. The Ordinance regulates and controls the 
possession, sale and consumption of liquor within the La Posta Band of 
Mission Indians' Reservation. The land is located on trust land and 
this Ordinance allows for the possession and sale of alcoholic 
beverages within the La Posta Band of Mission Indians' Reservation and 
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 on June 17, 2005.

FOR FURTHER INFORMATION CONTACT: Clay Gregory, Acting Regional 
Director, Pacific Regional Office, 2800 Cottage Way, Sacramento, CA 
95825; Telephone (916) 978-6000; or Ralph Gonzales, Office of Tribal 
Services, 1951 Constitution Avenue, NW., Mail Stop 320-SIB, Washington, 
DC 20240; Telephone (202) 513-7629.

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 La Posta Band of Mission Indians' 
General Council adopted its Liquor Control Ordinance by Resolution No. 
04-08-10B on October 8, 2004. The purpose of this Ordinance is to 
govern the sale, possession and distribution of alcohol within the La 
Posta Band of Mission Indians' Reservation.
    This notice is published in accordance with the authority delegated 
by the Secretary of the Interior to the Principal Deputy Assistant 
Secretary--Indian Affairs.

    I certify that this Liquor Ordinance, of the La Posta Band of 
Mission Indians, was duly adopted by the Tribal Council on October 8, 
2004.

    Dated: June 13, 2005.
Michael D. Olsen,
Acting Principal Deputy Assistant Secretary--Indian Affairs.
    The LA Posta Band of Mission Indians' Liquor Control Ordinance 
reads as follows:

The LA Posta Band of Mission Indians Liquor Control Ordinance

Article I--Declaration of Public Policy and Purpose

    Section 1.1. The distribution, possession, consumption and sale of 
liquor on the La Posta Indian Reservation (``Reservation'') is a matter 
of special concern to the La Posta Band of Mission Indians (``La Posta 
Band'' or ``Tribe'').
    Section 1.2. 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 
Tribe. By adoption of this Ordinance, it is the intention of the 
General Council to establish Tribal 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 1.3. The General Council, as the governing body of the 
Tribe, has the authority pursuant to Article VI of the

[[Page 35295]]

Constitution to administer Tribal assets and manage all economic 
affairs and enterprises of the La Posta Band, as well as has the 
inherent right to enact ordinances to safeguard and provide for the 
health, safety and welfare of the Reservation Community. Accordingly, 
the General Council has determined that it is in the best interests of 
the Tribe to enact a Tribal ordinance governing the distribution, 
possession, consumption and sale of liquor within the exterior 
boundaries of the Reservation.
    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 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 
Tribe and is therefore prohibited.
    Section 1.6. Based upon the foregoing findings and determinations, 
the General Council hereby enacts this La Posta Band of Mission Indians 
Liquor Control Ordinance (``Ordinance'').

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. 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 2.2. Alcoholic Beverage. Shall be defined identically in 
meaning to the term ``liquor'' as defined herein.
    Section 2.3. 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 2.4. 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 2.5. Gaming Compact. The federally approved Tribal-State 
Compact, dated September 10, 2003, between the State of California and 
the La Posta Band.
    Section 2.6. 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 2.7. Liquor Store. 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 2.8. Licensed Wholesaler. A wholesale seller of liquor that 
is duly licensed by the Tribe and the State.
    Section 2.9. Malt liquor. Beer, strong beer, ale, stout and porter.
    Section 2.10. Package. Any container or receptacle used for holding 
liquor.
    Section 2.11. 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 2.12. 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 2.13. Special Event. 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 2.14. Spirits. Any beverage, which contains alcohol 
obtained by distillation, including wines exceeding seventeen percent 
(17%) of alcohol by weight.
    Section 2.15. 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 2.16. General Council. The governing body of the Tribe as 
defined in the Constitution of the La Posta Band of Mission Indians 
(the ``Constitution'').
    Section 2.17. Tribe or Tribal. Means or refers to the La Posta Band 
of Mission Indians, a federally recognized Indian tribe.
    Section 2.18. Tribal Enterprise. Any business entity, operation or 
enterprise owned, in whole or in part, by the Tribe.
    Section 2.19. Tribal Land. All land within the exterior boundaries 
of the La Posta Indian Reservation that is held in trust by the United 
States for the benefit of the Tribe.
    Section 2.20. 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 III--Enforcement

    Section 3.1. General Council Powers. The General Council and/or its 
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 La Posta Indian Reservation 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 or its designee(s) to exercise its authority as set 
forth in this Ordinance.
    (c) Issue licenses permitting the sale and/or distribution of 
Liquor on the La Posta 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 General Council 
designee(s), 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,

[[Page 35296]]

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 General Council designee(s), delegated from time 
to time by the General Council, to implement and enforce this 
Ordinance.
    Section 3.2. Limitation on Powers. In the exercise of its powers 
and duties under this Ordinance, the General Council, its designee(s), 
and their 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 specify 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 designee(s) 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 La Posta Indian Reservation, except at a duly licensed and 
authorized Special Event, a Tribal Enterprise, Bar, or Liquor Store 
located on Tribal Lands.
    Section 4.2. Sale only on Tribal Land. All liquor sales within the 
exterior boundaries of the Reservation shall be on Tribal Land, 
including leases thereon.
    Section 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 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 General Council or its designee(s) after notice and an opportunity 
to be heard.
    Section 4.4. Compliance Required. All distribution, sale and 
consumption of liquor within the Reservation shall be in compliance 
with this Ordinance and all applicable provisions of State Law.

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 La Posta Indian Reservation must apply to the General 
Council or its 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 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 La Posta 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 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 La Posta Indian Reservation shall complete and 
submit an application provided for this purpose by the General Council 
or its designee(s) 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 or its 
designee may issue a license if it believes such issuance is in the 
best interests of the Tribe, the residents of the La Posta 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 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 or its designee 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 
La Posta Indian Reservation.
    Section 5.7. Revocation of License. The General Council or its 
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 5.8. Transferability of Licenses. Licenses issued by the 
General Council or its designee 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 within the Reservation. Such tax may be 
implemented by duly enacted resolution of the General Council, as 
supplemented by regulations adopted by the General Council or its 
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 6.2. Payment of Taxes to the Tribe. All taxes imposed 
pursuant to this Article VI shall be paid over to the La Posta Band of 
Mission Indians and be subject to distribution by the General Council 
in accordance with its usual

[[Page 35297]]

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 or its designee. 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 
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 La Posta Indian 
Reservation shall be governed solely by the laws of the State of 
California.
    Section 7.3. Illegal Purchases. Any person within the boundaries of 
the La Posta 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 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 or its 
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 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.

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 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 
Tribe 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 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 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 face 
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 Tribe 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 Tribe and expended by the General Council for governmental 
services and programs on the Reservation.

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.

[[Page 35298]]

    Section 10.4. 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 XI--Amendments

    This Ordinance may be amended only pursuant to a duly enacted 
General Council Resolution with certification by the Secretary of the 
Interior and publication in the Federal Register, if required.

Article XII--Sovereign Immunity

    Nothing contained in this Ordinance is intended to nor does it in 
any way limit, alter, restrict, or waive the Tribe's sovereign immunity 
from unconsented suit or action.

[FR Doc. 05-11982 Filed 6-16-05; 8:45 am]
BILLING CODE 4310-4J-P