The Pokagon Band of Potawatomi Indians of Michigan Liquor Control Ordinance, 2545-2550 [E7-714]

Agencies

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

[Federal Register Volume 72, Number 12 (Friday, January 19, 2007)]
[Notices]
[Pages 2545-2550]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-714]



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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


The Pokagon Band of Potawatomi Indians of Michigan Liquor Control 
Ordinance

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: This notice publishes the Liquor Control Ordinance of the 
Pokagon Band of Potawatomi Indians of Michigan (Tribe). The Ordinance 
regulates and controls the possession, sale and consumption of liquor 
within the Pokagon Band of Potawatomi Indians Reservation. This 
reservation is described as ``all lands, the title to which is held in 
trust by the United States for the benefit of the Pokagon Band of 
Potawatomi Indians; and * * * all lands * * * part of the Tribe's 
reservation.'' This ordinance, however, applies only to the Tribe's 
reservation lands within the State of Michigan. This Ordinance allows 
for possession and sale of alcoholic beverages within the Pokagon Band 
of Potawatomi Indians Reservation, and increases the ability of the 
tribal government to control the Tribe's liquor distribution and 
possession. At the same time it 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 January 19, 2007.

FOR FURTHER INFORMATION CONTACT: David Christensen, Regional Tribal 
Operations Officer, Bureau of Indian Affairs, Midwest Regional Office, 
Bishop Henry Whipple Federal Building, One Federal Drive, Room 550, Ft. 
Snelling, MN 55111, Telephone: (612) 725-4554, Fax 612-713-4401; or 
Ralph Gonzales, Office of Indian Services, 1849 C Street NW., Mail Stop 
4513-MIB, 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 Pokagon Band of Potawatomi Indians 
Tribal Council adopted its Liquor Ordinance by Resolution No. 06-09-09-
12 on September 9, 2006. The purpose of this Ordinance is to govern the 
sale, possession and distribution of alcohol within Tribal lands. The 
Pokagon Band of Potawatomi Indians does not have an existing Liquor 
Control Ordinance.
    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 
Pokagon Band of Potawatomi Indians was duly adopted by the Pokagon Band 
of Potawatomi Indians Tribal Council on September 9, 2006.

    Dated: January 12, 2007.
Michael D. Olsen,
Principal Deputy Assistant Secretary--Indian Affairs.
    The Pokagon Band of Potawatomi Indians of Michigan Liquor Control 
Ordinance reads as follows:

Pokagon Band of Potawatomi Indians of Michigan and Indiana Liquor 
Control Code

    Section 1 Legislative Findings. The Pokagon Band Tribal Council 
hereby finds as follows:
    (a) The importation, distribution, manufacture, and sale of 
alcoholic liquor for commercial purposes on the Tribe's Reservation is 
a matter of special concern to the Tribe.
    (b) Federal law as embodied in 18 U.S.C. 1161 provides that certain 
sections of the United States Code, commonly referred to as Federal 
Indian Liquor Laws, shall not apply to any act or transaction within 
any area of Indian country, provided such act or transaction is in 
conformity with both the laws of the state in which such act or 
transaction occurs, and with an act duly adopted by the tribe having 
jurisdiction over such area of Indian country.

Section 2 Declaration of Policy.

    (a) The Council hereby declares that the policy of the Tribe is to 
eliminate the problems associated with unlicensed, unregulated, and 
unlawful importation, distribution, manufacture, and sale of alcoholic 
liquor for commercial purposes on the Reservation, and to promote 
temperance in the use and consumption of alcoholic liquor by 
establishing and enforcing Tribal regulation over such activities on 
the Reservation.
    (b) The importation, distribution, manufacture, and sale of 
alcoholic liquor for commercial purposes on the Reservation shall be 
lawful, provided that such activity is conducted by the Tribe or by an 
authorized Tribal enterprise, and is in conformity with this Code. Such 
conditions are necessary to increase the Tribe's ability to control and 
regulate the distribution, sale, and possession of alcoholic liquor, 
while at the same time provide an important and necessary source of 
revenue for continued operation of the Tribal government and delivery 
of Tribal governmental services.
    Section 3 Authority. The Council has authority to adopt this Liquor 
Control Code (``Code'') pursuant to the authority and powers vested in 
it by Article IX, subsections 2 (a), 2 (e), 2 (i), and 2 (j), of the 
Tribal Constitution and the inherent authority of the Band as a 
sovereign tribal nation to provide for the health, safety, and welfare 
of the Pokagon Band. Further, the Supreme Court held in United States 
v. Mazurie, 419 U.S. 544 (1975), that Congress through 18 U.S.C. 1161 
delegated to Indian tribes authority to control the introduction, 
distribution, and consumption of alcoholic liquor within Indian 
country.
    Section 4 Short Title. This Code shall be known and cited as the 
``Pokagon Band Liquor Control Code.''
    Section 5 Purpose. The purpose of this Code is to prohibit the 
importation, manufacture, distribution, and sale of alcoholic liquor 
for commercial purposes on the Reservation except pursuant to a license 
issued by the Commission under the provisions of this Code and other 
Tribal laws.
    Section 6 Application of 18 U.S.C. 1161. The importation, 
manufacture, distribution, and sale of alcoholic liquor for commercial 
purposes on the Reservation shall be ``in conformity with'' this Code 
and the laws of the State of Michigan as that phrase is used in 18 
U.S.C. 1161.
    Section 7 Incorporation by Reference of Michigan Laws.
    (a) In accordance with 18 U.S.C. 1161, the Tribe hereby adopts and 
applies as Tribal law those Michigan laws, as amended, relating to the 
sale and regulation of alcoholic liquor encompassing the following 
areas: Sale to a minor; sale to a visibly intoxicated individual; sale 
of adulterated or misbranded liquor; hours of operation; and similar 
substantive provisions, including such other laws prohibiting the sale 
of alcoholic liquor to certain categories of individuals. Said Tribal 
laws which are defined by reference to the substantive areas of 
Michigan laws referred to in this section shall apply in the same 
manner and to the same extent as such laws apply elsewhere in Michigan 
to off-Reservation transactions unless otherwise agreed by the Tribe 
and State; provided, that nothing in this Code shall be construed as a 
consent by the Tribe to the jurisdiction of the State

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of Michigan or any of its courts or subordinate political subdivisions 
or municipalities within the Reservation over any activity arising 
under or related to the subject of this Code nor shall anything in this 
Code constitute an express or implied waiver of the sovereign immunity 
of the Tribe.
    (b) The Tribe, for resale by the Tribe, shall purchase spirits from 
the Michigan Liquor Control Commission, and beer and wine from 
distributors licensed by the Michigan Liquor Control Commission, at the 
same price and on the same basis that such beverages are purchased by 
similar licensees.
    (c) In the event of any conflict or inconsistency between ``adopted 
and applied'' Michigan laws and this Code, the provisions of this Code 
shall govern.
    (d) Whenever such Michigan laws are incorporated herein by 
reference, amendments thereto shall also be deemed to be incorporated 
upon their effective date in the State of Michigan without further 
action by the Council.
    Section 8 General Provisions.
    (a) Sales Limited To Permitted Hours. No alcoholic liquor shall be 
sold, served, or allowed to be consumed on any premises licensed under 
this Code other than during the hours permitted by Tribal law and the 
license.
    (b) Sale to Obviously Intoxicated Person. It shall be a violation 
of this Code to sell or furnish for consumption on the licensed 
premises any alcoholic liquor to any person who is obviously 
intoxicated at the time. As used in this subsection, ``obviously 
intoxicated'' means inebriated to the extent that a person's physical 
faculties are substantially impaired and the impairment is shown by 
significantly uncoordinated physical action or significant physical 
dysfunction that would have been obvious to a reasonable person.
    (c) Distribution off premises. No person licensed under this Code 
shall distribute or deliver any alcoholic liquor off the premises 
described in the license.
    (d) Sale or possession with intent to sell without a license. Any 
person who shall sell or offer for sale or distribute or transport in 
any manner, any alcoholic liquor in violation of this Code, or who 
shall have alcoholic liquor in his possession with intent to sell or 
distribute on the Reservation without a license issued pursuant to this 
Code shall be guilty of a violation of this Code.
    (e) Purchases from other than licensed entities or premises. Any 
person who, on the Reservation or within its boundaries, buys alcoholic 
liquor from any person other than a licensed entity or premises shall 
be guilty of a violation of this Code.
    (f) Consumption or possession of alcoholic liquor by persons under 
21 years of age. No person under the age of 21 years shall consume or 
purchase any alcoholic liquor on the Reservation or within its 
boundaries. No person under the age of 21 years shall have for personal 
consumption any alcoholic liquor in his or her possession on the 
Reservation or within its boundaries. No person shall permit any other 
person under the age of 21 years to consume alcoholic liquor on his or 
her premises or any premises under his or her control except as 
expressly permitted under this Code. Upon any attempt to purchase 
alcoholic liquor on a premises licensed under this Code by a person who 
appears may be younger than twenty-one (21) years of age, the vendor 
shall demand, and the prospective purchaser upon such demand shall 
display, satisfactory evidence that he or she is of legal age. Any 
person violating this Section shall be guilty of a separate violation 
of this Code for each and every alcoholic liquor beverage consumed, 
acquired, or possessed.
    (g) Sales of Alcoholic Liquor to persons under 21 years of age. It 
shall be a violation of this Code to sell or furnish any alcoholic 
liquor to a person unless that person has attained 21 years of age. 
Persons selling alcoholic liquor shall make a diligent inquiry as to 
whether the purchaser is at least 21 years of age. For purposes of this 
subsection, the term ``diligent inquiry'' means a diligent, good faith 
effort to determine the age of the purchaser, which includes at least 
an examination of such person's personal identification to establish 
the identity and age of the purchaser. Any person who shall sell or 
provide alcoholic liquor to any person under the age of 21 years shall 
be guilty of a violation of this Code for every sale or drink provided.
    (h) Transfer of identification to a minor. Any person who transfers 
in any manner an identification of age to a minor for the purpose of 
permitting such minor to obtain alcoholic liquor shall be guilty of an 
offense; provided, that corroborative testimony of a witness other than 
the minor shall be required for any finding of a violation of this 
Code.
    (i) Use of False or Altered Identification. Any person who attempts 
to purchase an alcoholic liquor beverage through the use of a false or 
altered identification shall be guilty of violating this Code.
    (j) Acceptable Identification. Where there may be a question of a 
person's right to purchase alcoholic liquor by reason of his or her 
age, such person shall be required to present identification in one of 
the following forms that displays his or her correct age, signature and 
photograph:
    (1) A driver's license or identification card issued by any state 
or U.S. territory;
    (2) United States active duty military ID;
    (3) A passport issued by the Unites States or any foreign country; 
or
    (4) A Tribal identification card or other tribal identification 
card recognized by the Commission.
    (k) Sale of Adulterated or Mislabeled Liquor. It shall be a 
violation of this Code for any person, by himself or by his agent or 
employee, to sell, offer for sale, or possess any alcoholic liquor that 
is adulterated or misbranded or any alcoholic liquor in bottles that 
have been refilled. For the purposes of this Section, alcoholic liquor 
shall be deemed adulterated if it contains any liquids or other 
ingredients not placed there by the original manufacturer or bottler. 
For the purposes of this Section, alcoholic liquor shall be deemed 
misbranded when not plainly labeled, marked or otherwise designated. 
For the purposes of this section, alcoholic liquor bottles shall be 
deemed to be refilled when the bottles contain any liquid or other 
ingredient not placed in the bottles by the original manufacturer.
    Section 9 Administration of Code. The Gaming Commission shall 
exercise all of the powers and accomplish all of the purposes as set 
forth in this Code, including the following actions:
    (a) Adopt and enforce rules and regulations for the purpose of 
implementing and enforcing this Code, which includes the setting of 
fees, provided that the Gaming Commission shall provide a minimum 
public notice and opportunity to comment of sixty (60) days on any 
proposed rule or regulation before such rule or regulation becomes 
final and enforceable;
    (b) Execute all necessary documents; and
    (c) Perform all matters and things incidental to and necessary to 
conduct its business and carry out its duties and functions under this 
Code.
    Section 10 Applicability Within the Reservation. This Code shall 
apply to all persons on or within the boundaries of the Reservation, 
consistent with applicable federal laws.
    Section 11 Definitions. For the purposes of this Code, words in the 
present tense include the future; the masculine includes the feminine; 
the singular includes the plural; and the plural includes the singular. 
The word ``shall'' is mandatory and the word

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``may' is permissive. In construing the provisions of this Code, the 
following words or phrases shall have the meaning designated unless a 
different meaning is expressly provided or the context clearly 
indicates otherwise:
    (a) ``Alcohol'' means the product of distillation of fermented 
liquid, whether or not rectified or diluted with water, but does not 
mean ethyl or industrial alcohol, diluted or not, that has been 
denatured or otherwise rendered unfit for beverage purposes.
    (b) ``Alcoholic liquor'' or ``liquor'' means any spirituous, 
vinous, malt, or fermented liquor, liquids and compounds, whether or 
not medicated, proprietary, patented, and by whatever name called, 
containing one half of one percent (\1/2\ of 1%) or more of alcohol by 
volume which is fit for use for beverage purposes. The following eight 
sub-classifications comprise the entire universe of alcoholic liquor: 
beer, wine, spirits, alcohol, sacramental wine, brandy, mixed wine 
drink, and mixed spirit drink. Alcoholic liquor does not include the 
exceptions set forth in Mich. Comp. Laws Sec.  436.4.
    (c) ``Applicant'' means any person who submits an application to 
the Tribe for a liquor license and who has not yet received such a 
license.
    (d) ``Beer'' means any beverage obtained by alcoholic fermentation 
of an infusion or decoction of barley, malt, hops, or other cereal in 
potable water.
    (e) ``Brandy'' means an alcoholic liquor as defined in the federal 
regulations, 27 CFR Sec.  5.22(d) (1980).
    (f) ``Commission'' and ``Gaming Commission'' as used throughout 
this Code means the Gaming Regulatory Committee first established by 
the Pokagon Gaming Regulatory Act, as amended, and any other Tribal 
commission, committee, board or other entity delegated authority by the 
Council to regulate Tribal gaming activities on the Reservation.
    (g) ``Constitution'' and ``Tribal Constitution,'' as used 
throughout this Code, means the Constitution of the Pokagon Band of 
Potawatomi Indians of Michigan and Indiana, adopted on November 1, 2005 
and approved by the Secretary of the Interior on December 16, 2005, 
including all subsequent amendments ratified and approved pursuant to 
Tribal and federal law.
    (h) ``Council'' and ``Tribal Council'' means the elected Tribal 
Council of the Pokagon Band of Potawatomi Indians acting as the 
governing body of the Tribe pursuant to the Tribe's Constitution.
    (i) ``License'' means a liquor license issued by the Gaming 
Commission under the provisions of this Code authorizing the 
importation, manufacture, distribution, or sale of alcoholic liquor for 
commercial purposes on or within the Reservation consistent with 
federal law.
    (j) ``Licensee'' means any holder of a liquor license issued by the 
Tribe and includes any employee or agent of the Licensee.
    (k) ``Manufacturer'' means any person engaged in the manufacture of 
alcoholic liquor.
    (l) ``Mixed wine drink'' means a drink or similar product marketed 
as a wine cooler and containing less than seven percent (7%) alcohol by 
volume, consisting of wine and plain, sparkling, or carbonated water 
and containing any one (1) or more of the following: Nonalcoholic 
liquor; flavoring; coloring materials; fruit juices; fruit adjuncts; 
sugar; carbon dioxide; or preservatives.
    (m) ``Mixed spirit drink'' means a drink produced and packaged or 
sold by a mixed spirit drink manufacturer or an out-of-state seller of 
mixed spirit drink which contains ten percent (10%) or less alcohol by 
volume consisting of distilled spirits mixed with nonalcoholic liquor 
or flavoring or coloring materials and which may also contain water, 
fruit juices, fruit adjuncts, sugar, carbon dioxide, or preservatives.
    (n) ``Person'' means any individual, whether Indian or non-Indian, 
receiver, assignee, trustee in bankruptcy, trust estate, tribe, firm, 
partnership, joint corporation, association, society, or any group of 
individuals acting as a unit, whether mutual, cooperative, fraternal, 
non-profit, or otherwise, and any other Indian tribe, band, or group, 
whether recognized by the United States or otherwise. The term shall 
also include any Tribal enterprise and licensee.
    (o) ``Purchase'' means to acquire, by sale or otherwise, individual 
possession, ownership, or rights to goods or services.
    (p) ``Reservation'' means: pursuant to 25 U.S.C. Sec.  1300j-5 or 
other applicable federal law, (i) all lands, the title to which is held 
in trust by the United States for the benefit of the Pokagon Band of 
Potawatomi Indians; and (ii) all lands proclaimed by the Secretary of 
the Interior to be part of the Tribe's reservation. The term 
Reservation includes any rights-of-way running through the Reservation.
    (q) ``Secretary of the Interior'' means the Secretary of the United 
States Department of the Interior.
    (r) ``Sacramental wine'' means wine containing not more than 
twenty-four percent (24%) of alcohol by volume and is used for 
sacramental purposes.
    (s) ``Sale'' means the exchange, barter, traffic, furnishing, or 
giving away for commercial purposes of possession, ownership, or rights 
to goods or services.
    (t) ``Spirits'' means any beverage which contains alcohol obtained 
by distillation, mixed with potable water or other substances, or both, 
in solution, and includes wine containing an alcoholic content of more 
than twenty-one percent (21%) by volume, except sacramental wine and 
mixed spirit drink.
    (u) ``Tribal Court'' means the Tribal Court of the Pokagon Band of 
Potawatomi Indians.
    (v) ``Tribal enterprise'' means the Tribe or any activity or 
business owned, managed, or controlled by the Tribe or any agency, 
subordinate organization, or other entity of the Tribe, where the 
organic documents establishing such enterprise expressly allow for the 
sale of alcoholic liquor.
    (w) ``Tribal law'' means the Tribal Constitution and all laws, 
acts, codes, and resolutions now and hereafter duly enacted by the 
Tribal Council and any rules or regulations duly promulgated by the 
Gaming Commission pursuant to this Code.
    (x) ``Tribe'' means, and ``Tribal'' refers to, the Pokagon Band of 
Potawatomi Indians of Michigan and Indiana.
    (y) ``Wine'' means the product made by the normal alcoholic 
fermentation of the juice of sound, ripe grapes, or any other fruit 
with the usual cellar treatment, and containing not more than twenty-
one percent (21%) of alcohol by volume, including fermented fruit 
juices other than grapes and mixed wine drinks.
    Section 12 Interpretation and Findings. The Gaming Commission in 
the first instance may interpret any ambiguities contained in this 
Code.
    Section 13 Liberal Construction. The provisions of this Code shall 
be liberally construed to achieve the purposes set forth, whether 
clearly stated or apparent from the context of the language used 
herein.
    Section 14 Computation of Time. Unless otherwise provided in this 
Code, in computing any period of time prescribed or allowed by this 
Code, the day of the act, event or default from which the designated 
period time begins to run shall not be included. The last day of the 
period so computed shall be included, unless it is a Saturday, a 
Sunday, or a legal holiday, in which event the period runs until the 
end of the next day which is not a Saturday, a Sunday, or a legal 
holiday. For the purposes of this Code, the term ``legal

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holiday'' shall mean all legal holidays under Tribal law.
    Section 15 Prohibition of Unlicensed Sale of Alcoholic Liquor. This 
Code prohibits the importation, manufacture, distribution, or sale of 
alcoholic liquor for commercial purposes other than where conducted by 
a Tribal enterprise in accordance with this Code. No license shall be 
issued to any person or entity other than a Tribal enterprise. The 
federal liquor laws are intended to remain applicable to any act or 
transaction that is not authorized by this Code, and violators shall be 
subject to federal law. Consistent with United States v. Wheeler, 435 
U.S. 313 (1978), nothing shall prevent both federal and Tribal 
jurisdiction to enforce this Code.
    Section 16 Sales of Alcoholic Liquor.
    (a) Sales for Cash. All alcoholic liquor sales on the Reservation 
or within its boundaries shall be on a cash or cash equivalent basis, 
including the use of ATM cards, debit cards, checks, major credit 
cards, or other instruments approved by the Gaming Commission.
    (b) Sales for Personal Consumption. All alcoholic liquor sales 
shall be for the personal use and consumption by the purchaser. Resale 
of any alcoholic liquor purchased on the Reservation or within its 
boundaries is prohibited. Any person not licensed pursuant to this Code 
who purchases alcoholic liquor on the Reservation and sells it, whether 
in the original container or not, shall be guilty of a violation of 
this Code.
    Section 17 Authorization to Sell Alcoholic Liquor. Any Tribal 
enterprise applying for and obtaining a license under the provisions of 
this Code shall have the right to engage only in those alcoholic liquor 
transactions expressly authorized by such license and only at those 
specific places or areas designated in said license.
    Section 18 Limitation of the Commission's Powers. The Commission's 
powers under this Code shall be limited as follows:
    (a) The Commission may only issue a license permitting the sale of 
alcoholic liquor on those areas of the Reservation where such 
activities have been authorized by the Tribal Council.
    (b) In the exercise of its powers and duties under this Code, the 
Commission and its individual members shall not accept any gratuity, 
compensation, or other things of greater than nominal value from any 
alcoholic liquor producer, wholesaler, retailer, or distributor or from 
any liquor licensee provided that if other enactments of law by the 
Tribal Council provide more stringent ethics standards, such other 
standards shall apply.
    Section 19 Classes of Licenses. The Commission shall have the 
authority to issue any one or more of the following classes of liquor 
licenses within the Reservation:
    (a) ``Retail on-sale general license'' means a license authorizing 
the applicant to sell alcoholic liquor at retail to be consumed by the 
buyer only on the premises or at the location designated in the 
license. This class includes, without limitation, hotels where 
alcoholic liquor may be sold for consumption on the premises and in the 
rooms of bona fide registered guests.
    (b) ``Retail on-sale beer and wine license'' means a license 
authorizing the applicant to sell beer and wine at retail to be 
consumed by the buyer only on the premises or at the location 
designated in the license. This class includes, without limitation, 
hotels where beer and/or wine may be sold for consumption on the 
premises and in the rooms of bona fide registered guests.
    (c) ``Retail off-sale general license'' means a license authorizing 
the applicant to sell alcoholic liquor at retail to be consumed by the 
buyer off of the premises or at a location other than the one 
designated in the license.
    (d) ``Retail off-sale beer and wine license'' means a license 
authorizing the applicant to sell beer and wine at retail to be 
consumed by the buyer off of the premises or at a location other than 
the one designated in the license.
    (e) ``Manufacturer's license'' means a license authorizing the 
applicant to manufacture alcoholic liquor for the purpose of sale on 
the Reservation.
    (f) ``Temporary license'' means a license authorizing the sale of 
alcoholic liquor on a temporary basis for premises temporarily occupied 
by the licensee for a picnic, social gathering, or similar occasion. 
The Commission may, by appropriate Commission action, limit or restrict 
the number of licenses issued or in effect in its sole discretion.
    Section 20 Application Form and Content. An application for a 
license shall be made to the Commission and shall contain the following 
information:
    (a) The name and address of the licensee, including the names and 
addresses of all of the principal officers and directors, and other 
employees with primary management responsibility related to the sale of 
alcoholic liquor;
    (b) The specific area, location, and/or premise(s) sought to be 
licensed;
    (c) The class of liquor license applied for (e.g., retail on-sale 
general license, etc.);
    (d) Whether a state liquor license has been issued to the 
applicant;
    (e) A sworn statement by the applicant to the effect that none of 
the applicant's officers and directors, and employees with primary 
management responsibility related to the sale of alcoholic liquor were 
ever convicted of a felony under any law and have not violated and will 
not violate or cause or permit to be violated any of the provisions of 
this Code; and
    (f) The application shall be verified under oath and notarized by a 
duly authorized representative.
    Section 21 Transfer of License. Each license issued or renewed 
under this Code is separate and distinct and is transferable from one 
licensee to another and/or from one premises to another only with the 
approval of the Gaming Commission. The Commission shall have the 
authority to approve, deny, or approve with conditions any application 
for the transfer of any license. The transfer application shall contain 
all of the information required of an original applicant under Section 
20 of this Code and shall be signed by both the licensee and 
transferee. In the case of a transfer to a new premises, the 
application shall contain an exact description of the location where 
the alcoholic liquor is proposed to be sold.
    Section 22 Term and Renewal of License. All licenses shall be 
issued on a calendar year basis and shall be renewed annually. The 
applicant shall renew a license by, prior to the license's expiration 
date, submitting a written renewal application to the Gaming Commission 
on the provided form, and paying the annual license fee for the next 
year.
    Section 23 Investigation. Upon receipt of an application for the 
issuance, renewal, or transfer of a license, the Gaming Commission 
shall make a thorough investigation to determine whether the applicant 
and the premises for which a license is applied for qualify for a 
license. The Commission shall investigate all matters related to the 
eligibility of the applicant and the premises for a license under the 
requirements of this Code, including matters that may affect public 
health, safety, or welfare. The Commission shall specifically conclude 
whether the provisions of this Code have been complied with by the 
applicant and the premises.
    Section 24 Public Hearing. Upon receipt of an application for 
issuance or transfer of a license, and the payment of all fees required 
under this Code, the Gaming Commission shall set the matter for a 
public hearing. A hearing shall not be required for a license renewal 
unless required by the Commission in its discretion based on 
information provided in the applicant's renewal application indicating 
that there has

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been a material change in the applicant's ownership or control or based 
on other matters that may affect the applicant's continued eligibility 
for a license. Notice of the time and place of the hearing shall be 
given at least twenty (20) calendar days before the hearing to the 
applicant by United States mail, postage prepaid, at the address listed 
in the application or any other reasonable method adopted by the 
Commission. The Commission shall also provide notice to the public of 
the time, place, and purpose of the hearing by publication in a Tribal 
newspaper, a newspaper of general circulation sold on the Reservation, 
public posting or other reasonable method. The public notice shall 
include the name of the applicant, whether the action involves a new 
issuance, renewal, or transfer, the class of license applied for, and a 
general description of the area where the alcoholic liquor will be or 
has been sold. The hearing shall be conducted before the Gaming 
Commission under such rules of procedure as it may adopt. The Gaming 
Commission shall hear from any person who wishes to speak for or 
against the application, subject to such limitations as the Commission 
may issue in the course of the hearing regarding the length, relevance, 
or repetitiveness of each speaker's testimony.
    Section 25 Gaming Commission Action on the Application. The Gaming 
Commission shall act on the matter within thirty (30) days of the 
conclusion of the public hearing. The Commission shall have the 
authority to deny, approve, or approve the application with conditions. 
Upon approval of an application, the Commission shall issue a license 
to the applicant in a form to be approved from time to time by the 
Commission.
    Section 26 Denial of License, Renewal, or Transfer. Solely for 
purposes of this Section and Section 25, ``applicant'' means licensee 
in the event of a renewal, and licensee and/or transferee in the event 
of a transfer. An application for a new license, license renewal, or 
license transfer may be denied for one or more of the following 
reasons:
    (a) The applicant has materially misrepresented facts contained in 
the application;
    (b) The applicant is presently not in compliance with Tribal or 
federal laws;
    (c) Granting of the license (or renewal or transfer thereof) would 
create a threat to the peace, safety, morals, health, or welfare of the 
Tribe;
    (d) The applicant has failed to complete the application properly 
or has failed to tender the appropriate fee; or
    (e) A plea, verdict, or judgment of guilty, or the plea of nolo 
contendere by an applicant's officer or director, or an employee with 
primary management responsibility related to the sale of alcoholic 
liquor, to any offense under any federal or state law prohibiting or 
regulating the sale, use, possession, or giving away of alcoholic 
liquor; or
    (f) The applicant has a suspended or revoked state liquor license.
    Section 27 Temporary Denial. If the application is denied solely on 
the basis of subsections 26(b) or 26(d), the Gaming Commission shall, 
within fourteen (14) days of receipt of the application, issue a 
written notice of temporary denial to the applicant. Such notice shall 
set forth the reasons for denial and shall state that the denial will 
become permanent if the problem(s) is not corrected within fifteen (15) 
days following receipt of the notice.
    Section 28 Multiple Locations. Each license shall be issued to a 
specific licensee. Separate licenses shall be issued for each of the 
premises of any business establishment having more than one address.
    Section 29 Posting of License. Every licensee shall post and keep 
posted its license(s) in a conspicuous place(s) on the licensed 
premises.
    Section 30 Suspension or Revocation of License. Any one of the 
following actions or inactions by a licensee shall constitute grounds 
for the suspension or revocation of a license:
    (a) Material misrepresentation of facts contained in any license 
application;
    (b) Not in compliance with Tribal or federal laws;
    (c) Failure to comply with any condition of the license, including 
failure to pay a required fee;
    (d) A plea, verdict, or judgment of guilty, or a plea of nolo 
contendere entered against one of its officers or directors, or 
employees with primary management responsibility related to the sale of 
alcoholic liquor, to any offense under federal or state law prohibiting 
or regulating the sale, use, or possession, or giving away of alcoholic 
liquor;
    (e) Failure to take reasonable steps to correct objectionable 
conditions constituting a nuisance on the licensed premises or any 
adjacent area within a reasonable time after receipt of a notice to 
make such corrections has been received from the Commission or its 
authorized representative; or
    (f) Suspension or revocation of the licensee's state liquor 
license.
    Section 31 Initiation of Suspension or Revocation Proceedings. 
Suspension or revocation proceedings are initiated by the Gaming 
Commission either:
    (a) on the Commission's own initiative through adoption of a 
resolution that sets forth allegations that if substantiated, would 
provide grounds under this Code for the Commission to suspend or revoke 
the license(s); or
    (b) based on a signed request by any person and filed with the 
Commission that alleges facts that would, if substantiated, provide 
grounds under this Code for the Commission to suspend or revoke the 
license(s).
    The Gaming Commission shall cause the matter to be set for a 
hearing before the Commission on a date not later than thirty (30) days 
from the Commission's adoption of the resolution or its receipt of a 
request. Notice of the time, date, and place of the hearing shall be 
given the licensee and the public in the same manner as set forth in 
Section 24. The notice shall state that the licensee has the right to 
file a written response, verified under oath and signed by the 
licensee, five (5) days prior to the hearing date.
    If the Gaming Commission determines that the grounds for suspension 
or revocation of a license are supported by reliable evidence and that 
such grounds pose a substantial risk of imminent harm to the health, 
welfare, or safety of the public, the Gaming Commission may immediately 
suspend such license provided that such emergency suspension may not 
exceed three (3) calendar days without a hearing.
    Section 32 Hearing. The hearing shall be held before the Gaming 
Commission under such rules of procedure as it may adopt. Both the 
licensee and the person filing the request may present witnesses to 
testify and to present written documents in support of their positions 
to the Gaming Commission. The Gaming Commission may issue limitations 
in the course of the hearing regarding the length, relevance, or 
repetitiveness of each witness's testimony. The Gaming Commission shall 
render its decision within sixty (60) days after the date of the 
hearing. The decision of the Gaming Commission shall be final.
    Section 33 Delivery of License. A licensee, upon suspension or 
revocation of such license, shall promptly return the license to the 
Gaming Commission. In cases involving suspension, the Gaming Commission 
shall return the license to the licensee at the expiration or 
termination of the suspension period, with a memorandum of the 
suspension written or stamped upon the face thereof in red ink.

[[Page 2550]]

    Section 34 General Penalties. Any person adjudged to be in 
violation of this Code, including any lawful regulation promulgated 
pursuant thereto, shall be subject to a civil fine of not more than 
five hundred dollars ($500.00) for each such violation. The Gaming 
Commission may adopt by resolution a separate schedule for fines for 
each type of violation, taking into account the seriousness and threat 
the violation may pose to the general health and welfare. 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 that may be imposed under 
applicable law.
    Section 35 Initiation of Action. Any violation of this Code shall 
constitute a public nuisance. The Gaming Commission, on behalf of and 
in the name of the Tribe, may initiate and maintain an action in Tribal 
Court to abate and permanently enjoin any nuisance declared under this 
Code. Any action taken under this section shall be in addition to any 
other penalties provided for in this Code. The plaintiff shall not be 
required to give bond in this action.
    Section 36 Inspection. Immediately upon the request of a law 
enforcement officer or a Commission investigator empowered to enforce 
this Code and the rules and regulations promulgated hereunder, a 
licensee shall make the licensed premises available for inspection and 
search during regular business hours or when the licensed premises are 
occupied by the licensee, including the licensee's employees and 
agents.
    Section 37 Contraband; Seizure; Forfeiture.
    (a) All alcoholic liquor within the Reservation held, owned, or 
possessed by any person or licensee operating in violation of this Code 
is hereby declared to be contraband and subject to forfeiture to the 
Tribe.
    (b) Within three (3) weeks following the seizure of the contraband, 
a hearing shall be held by the Gaming Commission, at which time the 
operator or owner of the contraband shall be given an opportunity to 
present evidence in defense of his or her activities.
    (c) Notice of the hearing shall be given to the person from whom 
the property was seized, if known prior to hearing. If the person is 
unknown, notice of the hearing shall be posted at the place where the 
contraband was seized and at other public places on the Reservation. 
The notice shall describe the property seized, and the time, place, and 
cause of seizure and give the name and place of residence, if known, of 
the person from whom the property was seized.
    (d) If upon hearing, the evidence warrants, or if no person appears 
as a claimant, the Gaming Commission shall thereupon enter a 
determination of forfeiture and order such contraband sold or destroyed 
forthwith.
    Section 38 Disposition of Proceeds. The gross proceeds collected by 
the Commission from licensing shall be distributed as follows:
    (a) First, to the Commission for the payment of all necessary 
personnel, administrative costs, and legal fees for the administration 
of the provisions of this Code; and
    (b) Second, to the Tribe any remainder.
    Section 39 Appeals. Appeals under this Code may only be brought in 
the Pokagon Band Tribal Court by an applicant or a licensee to:
    (a) challenge a final Gaming Commission decision to deny a license, 
to deny an application to renew or transfer a license, or to revoke a 
license; or
    (b) to compel a Gaming Commission decision or action unreasonably 
delayed or unlawfully withheld more than sixty (60) days beyond any 
mandatory time limit established by law.
    The Tribal Court shall hold unlawful and set aside any Gaming 
Commission decision it finds to be arbitrary, not in accordance with 
law, in excess of statutory authority, or unsupported by substantial 
evidence in the record. The Tribal Court shall give deference to the 
Gaming Commission's reasonable interpretations of this Code and any 
rules or regulations promulgated hereunder.
    Section 40 License Not a Property Right. Notwithstanding any other 
provision of this Code, a liquor license is a mere permit for a fixed 
duration of time. A liquor license shall not be deemed a property right 
or vested right of any kind, nor shall the granting of a liquor license 
give rise to a presumption of legal entitlement to the granting of such 
license for a subsequent time period.
    Section 41 Savings Clause. In the event any provision of this Code 
shall be found or declared to be invalid by a court of competent 
jurisdiction, all of the remaining provisions of this Code shall be 
unaffected and shall remain in full force and effect.
    Section 42 Effective Date. The effective date of this Code is the 
date that the Secretary of the Interior publishes the same in the 
Federal Register.
    Section 43 Prior Inconsistent Acts. Except as provided otherwise 
under applicable federal law, this Code shall be the exclusive Tribal 
law governing the introduction, distribution, sale and regulation of 
alcoholic liquor within the Reservation. This Code shall supersede any 
and all Tribal laws that are inconsistent with the provisions of this 
Code, and such laws are hereby rescinded and repealed.
    Section 44 Sovereign Immunity Preserved.
    (a) The Tribe, and all of its constituent parts, which includes but 
is not limited to Tribal enterprises, subordinate organizations, 
boards, committees, officers, employees and agents, are immune from 
suit in any jurisdiction except to the extent that such immunity has 
been expressly and unequivocally waived in writing by the Tribe.
    (b) Nothing in this Code, and no enforcement action taken pursuant 
to this Code or otherwise, including without limitation the filing of 
suit by the Gaming Commission to enforce any provision of this Code or 
other Tribal law, shall constitute a waiver of such sovereign immunity, 
either as to any counterclaim, regardless of whether the asserted 
counterclaim arises out of the same transaction or occurrence, or in 
any other respect.
Legislative History
    Liquor Control Code, enacted September 9, 2006 by Res. No. 06-09-
09-12 and certified by the Secretary of the Interior and published on 
------ ------ ----( Fed.Reg.) ------.

 [FR Doc. E7-714 Filed 1-18-07; 8:45 am]
BILLING CODE 4310-4J-P