Poarch Band of Creek Indians-Alcoholic Beverage Control Ordinance, 9590-9592 [06-1771]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs
• Indian Affairs Bureau

[Federal Register Volume 71, Number 37 (Friday, February 24, 2006)]
[Notices]
[Pages 9590-9592]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-1771]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Poarch Band of Creek Indians--Alcoholic Beverage Control 
Ordinance

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: This notice publishes the Poarch Band of Creek Indians 
Alcoholic Beverage Control Ordinance. The Ordinance regulates and 
controls the possession, sale and consumption of liquor within the 
Poarch Band of Creek Indians' Reservation. The land is located on trust 
land and this Ordinance allows for the possession and sale of alcoholic 
beverages within the Poarch Band of Creek 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 February 24, 
2006.

FOR FURTHER INFORMATION CONTACT: Harold Spears, Eastern Regional 
Office, Division of Tribal Government, 711 Stewarts Ferry Pike, 
Nashville, Tennessee 37214, Telephone (615) 467-2953; 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 Poarch Band of Creek Indians' 
Tribal Council adopted its Liquor Control Ordinance by Ordinance No. 
TCO 05:001 on January 16, 2005. The purpose of this Ordinance is to 
govern the sale, possession and distribution of alcohol within the 
Poarch Band of Creek 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 
Poarch Band of Creek Indians, was duly adopted by the Tribal Council on 
January 16, 2005.

    Dated: February 21, 2006.
Debbie L. Clark,
Acting Principal Deputy Assistant Secretary--Indian Affairs.

    The Poarch Band of Creek Indians' Liquor Ordinance reads as 
follows:

Poarch Creek Indians Tribal Council Ordinance

TCO 05:001

    Exercising inherent and aboriginal Tribal sovereign powers in 
accordance with the Tribal Constitution as ratified on June 1, 1985, 
the Poarch Band of Creek Indians hereby enacts the following ordinance:

Poarch Band of Creek Indians Alcoholic Beverage Control Ordinance

    The Poarch Band of Creek Indians, being a federally recognized 
Indian Tribe and organized pursuant to the Final Determination of 
Federal Acknowledgment, 25 U.S.C. 476; and the Act of June 18, 1934 (48 
Stat. 984); and the authority of the Poarch Band of Creek Indians 
Tribal Council under Article IV, Section 4(k), (m), (n) of the 
Constitution of the Poarch Band of Creek, hereby establishes and enacts 
this ordinance to authorize, license and regulate alcoholic beverages 
on the Indian country within the jurisdiction of the Poarch Band of 
Creek Indians.

Section 1. Title

    This Ordinance shall be known as the Poarch Band of Creek Indians 
Alcoholic Beverage Control Ordinance.

Section 2. Authority and Purpose

    This Ordinance is adopted pursuant to the sovereign authority of 
the Poarch Band of Creek Indians and Article IV, Section 4(k), (m), (n) 
of the Constitution of the Poarch Band of Creek Indians and the Act of 
August 15, 1953, Public Law 83-277, 18 U.S.C. 1161. The purpose of this 
Ordinance is to regulate the sale of alcoholic beverages on the Indian 
country within the jurisdiction of the Poarch Band of Creek Indians.

Section 3. Definitions

    As used in this Ordinance, the following words shall have the 
following meanings unless the context clearly requires otherwise:
    (a) ``Alcoholic Beverages'' shall mean any alcoholic, spirituous, 
vinous, fermented or other alcoholic beverage, or combination of 
liquors and mixed liquor, a part of which is spirituous, vinous, 
fermented or otherwise alcoholic, and all drinks or drinkable liquids, 
preparations or mixtures intended for beverage purposes, which contain 
one-half of one percent or more of alcohol by volume, and shall include 
liquor, beer, and wine, both fortified and table wine.
    (b) ``Beer, or Malt or Brewed Beverages'' shall mean any beer, 
lager beer, ale, porter, malt or brewed beverage, or similar fermented 
malt liquor containing one-half of one percent or more of alcohol by 
volume and not in excess of five percent alcohol by weight and six 
percent by volume, by whatever name the same may be called.
    (c) ``Liquor'' shall mean any alcoholic, spirituous, vinous, 
fermented, or other alcoholic beverage, or combination of liquors and 
mixed liquor, a part of which is spirituous, fermented, vinous or 
otherwise alcoholic, and all drinks or drinkable liquids, preparations 
or mixtures intended for beverage purposes, which contain one-half of 
one percent or more of alcohol by volume, except beer and table wine.
    (d) ``Minor'' shall mean any person under age twenty one (21) years 
of age.
    (e) ``Tribe'' shall mean the Poarch Band of Creek Indians.
    (f) ``Tribal Council'' shall mean the duly elected governing body 
of the Poarch Band of Creek Indians.
    (g) ``Possession or possessing'' shall mean over one's person, 
vehicle or other property and includes constructive possession through 
control without regard to ownership.

[[Page 9591]]

    (h) ``Purchase'' shall mean the exchange, barter, traffic, receipt, 
with or without consideration in any form.
    (i) ``Sale'' shall mean the 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.
    (j) ``Transport'' shall mean the introduction of alcoholic beverage 
onto the Indian country under the jurisdiction of the Poarch Band of 
Creek Indians by any means of conveyance for the purpose of sale, or 
distribution, to any licensed or permitted dealer.
    (k) ``Wine'' shall mean all beverages made from the fermentation of 
fruits, berries, or grapes, with or without added spirits, and produced 
in accordance with the laws and regulations of the United States, 
containing not more than 24 percent alcohol by volume, and shall 
include all sparkling wines, carbonated wines, special natural wines, 
rectified wines, vermouths, vinous beverages, vinous liquors, and like 
products, including restored or unrestored pure condensed juice.
    (l) ``Fortified Wine'' or ``Vinous Liquor'' shall mean any wine 
containing more than 14.9 percent alcohol by volume but not more than 
24 percent. Fortified wine is vinous liquor.
    (m) ``Table Wine'' shall mean any wine containing not more than 
14.9 percent alcohol by volume. Table wine is not liquor, spirituous or 
vinous.
    (n) ``Brandy'' shall mean all beverages which are an alcoholic 
distillate from the fermented juice, mash, or wine of fruit, or from 
the residue thereof, produced in such manner that the distillate 
possesses the taste, aroma, and characteristics generally attributed to 
the beverage, as bottled at not less than 80 degree proof.

Section 4. General

    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 Alabama pursuant to 18 U.S.C. 
1161.

Section 5. Tribal License or Permit Required

    No person shall engage in the sale of any alcoholic beverage within 
the Indian country under the jurisdiction of the Tribe, unless duly 
licensed or permitted to do so by the State of Alabama and the Tribe in 
accordance with the terms of this Ordinance.

Section 6. Tribal Alcoholic Beverage License; Requirements

    (a) The Tribal Council is authorized to issue alcoholic beverage 
licenses to entities or enterprises that are wholly owned and operated 
by the Tribe, and a separate license is required for each location 
where alcoholic beverages are to be sold or served.
    (b) No licensed establishment shall be located closer than 500 feet 
from any church or school.
    (c) Application for an alcoholic beverage license shall be made to 
the Tribal Council by the manager, director or chief operating officer 
of the Tribal entity or Tribal enterprise which seeks to sell and serve 
alcoholic beverages. The application shall include, among other 
matters, the following information:
    (1) The name and address of the Tribal enterprise or entity making 
the application;
    (2) the description of the premises in which the alcoholic 
beverages are to be sold;
    (3) agreement by the applicant to accept and abide by all 
conditions of the tribal license;
    (4) 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 pursuant to Section 7 of this Ordinance;
    (5) evidence that the applicant is or will be duly licensed by the 
State of Alabama.

Section 7. Hearing on Application for Tribal Alcoholic Beverage License

    All applications for a tribal alcoholic beverage 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.

Section 8. Temporary Permits

    The Council may grant a temporary permit for the sale of alcoholic 
beverages for a period not to exceed three (3) days to any tribally-
owned and operated enterprise, department, or office, applying for the 
same in connection with a tribal or community activity, provided that 
the application shall be made as provided by Sections 6 and 7 of this 
Ordinance, and that the conditions prescribed in Sections 9(b) through 
9(h) of this Ordinance shall be observed by the permittee. Each permit 
issued shall specify the types of alcoholic beverages to be sold, the 
specific place, dates, and times when the permit is valid.

Section 9. Conditions of the Tribal License or Tribal Permit

    Any Tribal license or permit issued under this Ordinance shall be 
subject to such reasonable conditions as the Council shall fix, 
including, but not limited to the following:
    (a) A license shall be for a term of one year. A permit shall be 
for a period of not to exceed three days.
    (b) The licensee or permittee 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 or federal law.
    (d) The licensed premises shall be open to inspection by duly 
authorized Tribal officials at all times during the regular business 
hours.
    (e) No alcoholic beverage shall be sold within 200 feet of a 
polling place on tribal election days, or when a referendum is held of 
the people of the Tribe, and including special days of observance as 
designated by the Council.
    (f) All acts and transactions under authority of the Tribal 
alcoholic beverage license or permit shall be in conformity with this 
Ordinance and the terms of the Tribal license or permit.
    (g) All sales of alcoholic beverages shall be for the personal use 
and consumption of the purchaser. Resale of any alcoholic beverage is 
prohibited.
    (h) No person under the age of 21 shall be sold, served, delivered, 
given or allowed to consume alcoholic beverages in the licensed 
establishment. 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 cards 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 
identification card issued by any state department of motor vehicles; 
(2)

[[Page 9592]]

United States active duty military ID; (3) a passport; or (4) a Poarch 
Creek tribal identification card or other recognized tribal 
identification card.

Section 10. 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 beverage or to operate or shall have alcoholic 
beverages in his possession with intent to sell or distribute without a 
license or permit;
    (b) to buy any alcoholic beverage from any person other than a 
person or entity holding a license or permit 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.

Section 11. Enforcement

    (a) Criminal Penalties. A violation of this Ordinance by any person 
subject to the criminal jurisdiction of the Tribe is a Class B 
Misdemeanor and may be prosecuted by the Tribe as provided by Title 9 
of the Poarch Band of Creek Indians Code of Justice.
    (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 or permit issued under this Ordinance, and a 
person found to have violated this Ordinance or the terms of a license 
or permit issued under the Ordinance may be subject to a civil fine of 
not to exceed $500 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 Tribal 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 Council or 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) Suspension or revocation of license or permit. Any license or 
permit issued under this Ordinance may be suspended or revoked by the 
Tribal Council for violation of any of the provisions of this 
Ordinance, or of the tribal license or permit, upon hearing before the 
Tribal Council after 10 days notice to the licensee or permittee. The 
decision of the Council shall be final and no appeal therefrom shall be 
allowed. The Tribal Council shall grant all persons in any hearing 
regarding license or permit suspensions or revocations all the rights 
and due process granted by the Indian Civil Rights Act, 25 U.S.C. 1302, 
et seq. Notice of a Tribal Council hearing regarding an alleged 
violation of this Ordinance shall be given to the affected 
individual(s) or entity(ies) by certified mail at least 10 days in 
advance of the hearing. The notice will be delivered in person or by 
certified mail with the Tribal 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.

Section 12. License and Permit Not a Property Right

    Notwithstanding any other provision of this Ordinance, a tribal 
alcoholic beverage license or permit is a mere permit for a fixed 
duration of time. A tribal alcoholic beverage license or permit shall 
not be deemed a property right or vested right of any kind, nor shall 
the granting of a tribal alcoholic beverage license or permit give rise 
to a presumption or legal entitlement to the granting of such license 
or permit for a subsequent time period.

Section 13. Assignment or Transfer

    No tribal license or permit issued under this Ordinance shall be 
assigned or transferred without the written approval of the Council 
expressed by formal resolution and upon satisfaction of the conditions 
required for a license as set out in Sections 6 and 7.

Section 14. 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 15. Sovereign Immunity

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

Section 16. Amendment

    Section 8-7-3 of the Poarch Band of Creek Indians Code of Justice, 
regarding the ``Possession of Liquor'' is hereby amended so that it 
recites that:

    Possession of alcoholic beverages
    (a) A person commits an offense under this section if said 
person possesses, sells, trades, transports, manufactures, or 
distributes any alcoholic beverage except as provided in the Poarch 
Band of Creek Indians Alcoholic Beverage Control Ordinance.
    (b) Possession of alcoholic beverages except as provided in the 
Poarch Band of Creek Indians Alcoholic Beverage Control Ordinance is 
a Class B Misdemeanor.

Section 17. Effective Date

    This Ordinance shall be effective on the date that the Secretary of 
the Interior certifies this Ordinance and it is published in the 
Federal Register.
* * * * *

Approval

    I, the Chairman of the Poarch Band of Creek Indians, hereby affix 
my signature to this ordinance authorizing it to become official this 
16th day of January 2005, in accordance with established Tribal Policy.

Eddie L. Tullis,
Tribal Council Chairman.

Certification

    I, ----------the undersigned, certify that the foregoing is a true 
extract from the minutes of the Tribal Council Meeting of the Poarch 
Band of Creek Indians, comprised of nine members, with nine in 
attendance and eight members voting, on the 16th day of January 2005, 
and that the above is in conformity with the provisions therein adopted 
by a vote of eight (8) in favor, none against, and no abstentions, and 
that the above is the signature of the Chairman.

Daniel K. McGhee,
Tribal Council Secretary.

[FR Doc. 06-1771 Filed 2-22-06; 9:50 am]
BILLING CODE 4310-4J-P