Skokomish Liquor Control Ordinance, 74513-74516 [E8-29025]

Download as PDF Federal Register / Vol. 73, No. 236 / Monday, December 8, 2008 / Notices Article XIV—Amendments This Ordinance may be amended only pursuant to a duly enacted Tribal Council Resolution with certification by the Secretary of the Department of the Interior and publication in the Federal Register, if required. Article XV—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. E8–29024 Filed 12–5–08; 8:45 am] BILLING CODE 4310–4J–P Bureau of Indian Affairs Skokomish Liquor Control Ordinance Skokomish Liquor Control Ordinance Bureau of Indian Affairs, mstockstill on PROD1PC66 with NOTICES Title This Ordinance shall be known as the Skokomish Liquor Control Ordinance. SUMMARY: This notice publishes an amendment to the Skokomish Indian Tribe’s Liquor Control Ordinance published in the Federal Register November 3, 1983 (48 FR 50797). The amendment regulates and controls the possession and consumption of liquor within the tribal lands. The tribal lands are located in Indian country and this amended Ordinance allows for possession of alcoholic beverages within their boundaries. This Ordinance will increase the ability of the tribal government to control liquor sales, possession and consumption by the community and its members. DATES: Effective Date: This Ordinance is effective on January 7, 2009. FOR FURTHER INFORMATION CONTACT: Betty Scissons, Tribal Government Services Officer, Northwest Regional Office, 911 NE 11th Ave., 8th Floor, Portland, OR 97232, Telephone: (503) 231–6723, Fax (503) 231–2189; or Elizabeth Colliflower, Office of Indian Services, 1849 C Street, NW., Mail Stop 4513–MIB, Washington, DC 20240, Telephone: (202) 513–7640. 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 or amended liquor ordinances for the purpose of regulating liquor transactions in Indian country. The Skokomish Indian Tribe amended its Tribal Liquor Control 16:32 Dec 05, 2008 General Provisions 4.05.001 Interior. ACTION: Notice. VerDate Aug<31>2005 Dated: November 24, 2008. George T. Skibine, Acting Deputy Assistant Secretary for Policy and Economic Development. The amended Skokomish Indian Tribe’s Liquor Control Ordinance reads as follows: DEPARTMENT OF THE INTERIOR AGENCY: Ordinance by Resolution No. 08–011 on February 20, 2008. The purpose of this Ordinance is to govern the sale and possession of alcohol within tribal lands of the Tribe. This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs. I certify that the amended Skokomish Indian Tribe’s Liquor Control Ordinance was duly adopted by the Skokomish Indian Tribe’s Tribal Council on February 20, 2008. Jkt 217001 4.05.002 Authority This Ordinance is enacted by the Skokomish Tribal Council, the governing body of the Skokomish Indian Tribe, which has the authority to enact laws and ordinances governing the conduct of individuals and defining offenses against the Tribe; to maintain order and to protect the safety and welfare of all persons within the Skokomish Tribe’s jurisdiction pursuant to the Constitution of the Skokomish Indian Tribe Article IV, Section 1; Article V, Section 1(j). 4.05.003 Findings (a) The introduction, possession and sale of Liquor on Indian reservations have, since Treaty time, been clearly recognized as matters of special concern of Indian tribes and the United States Federal Government. The control of Liquor on reservations and federal trust land remains exclusively subject to their legislative enactments. (b) Federal law currently prohibits the introduction of Liquor into Indian Country (18 U.S.C. 1154), and expressly delegates to tribes the decision regarding when and to what extent Liquor transactions shall be permitted (18 U.S.C. 1161). (c) Present day circumstances make a complete ban on Liquor within the Skokomish Indian Reservation ineffective and unrealistic. However, a need still exists for strict regulation and control over Liquor transactions within the Reservation because of the many potential problems associated with the PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 74513 unregulated or inadequately regulated sale, possession and consumption of Liquor. The Tribal Council finds that exclusive tribal control and regulation of Liquor is necessary to achieve maximum economic benefit to the Tribe, to protect the health and welfare of the tribal members, and to address specific tribal concerns relating to Alcohol use on the Reservation. (d) The enactment of a tribal ordinance governing Liquor sales on the Skokomish Indian Reservation and providing for exclusive purchase and sale through a tribally owned and operated establishment will enhance the ability of the tribal government to control Reservation Liquor distribution and possession, and, at the same time, will provide an important source of revenue for the continued operation of the tribal government and the delivery of essential tribal social services. 4.05.004 Purpose Tribal regulation of the sale, possession, and consumption of Liquor on the Skokomish Indian Reservation is necessary to protect the health, security, and general welfare of the Skokomish Indian Tribe. In order to further these goals and to provide for an urgently needed additional source of governmental revenue, the Skokomish Tribal Council adopts this Liquor Ordinance to be known as the ‘‘Skokomish Liquor Control Ordinance.’’ This Ordinance shall be liberally construed to fulfill the purposes for which it has been adopted. 4.05.005 Jurisdiction (a) General Jurisdiction. The provisions of this Ordinance shall apply to the fullest extent of the sovereign jurisdiction of the Skokomish Indian Tribe as authorized by the Tribe’s Constitution, the Treaty of Point No Point and applicable federal law. (b) Civil Jurisdiction. The Skokomish Tribal Court shall have exclusive jurisdiction to enforce the provisions of this Ordinance. (c) Disclaimer. Nothing in this Ordinance shall be construed to require or authorize the criminal trial and punishment by the Skokomish Tribal Court of any non-Indian except to the extent allowed by any applicable present or future Act of Congress or any applicable decision of the United States Supreme Court. 4.05.006 Severability If any provision or application of this Ordinance is determined by review to be invalid, such adjudication shall not be held to render ineffectual the remaining portions of this Ordinance or E:\FR\FM\08DEN1.SGM 08DEN1 74514 Federal Register / Vol. 73, No. 236 / Monday, December 8, 2008 / Notices to render such provisions inapplicable to other persons or circumstances. 4.05.007 Effective Date This Ordinance shall be effective upon certification by the Secretary of the Interior and its publication in the Federal Register. 4.05.008 Inconsistent Enactments Rescinded Any and all prior enactments of the Skokomish Tribal Council, which are inconsistent with the provisions of this Ordinance, are hereby rescinded. 4.05.009 Conformity with Tribal Constitution All provisions of, acts and transactions under this Ordinance shall at all times comply with the Constitution of the Skokomish Indian Tribe. 4.05.010 Sovereign Immunity Preserved Nothing in this Ordinance is intended or shall be construed as a waiver of the sovereign immunity, rights, powers or privileges of the Skokomish Indian Tribe. 4.05.011 § 1161 Application of 18 U.S.C. All acts and transactions under this Ordinance shall be in conformity with this Ordinance and in conformity with the laws of the State of Washington as that term is used in 18 U.S.C. 1161. 4.05.012 Amendment This Ordinance may only be amended by a vote of the Board. mstockstill on PROD1PC66 with NOTICES 4.05.013 Definitions (a) Alcohol means that substance known as ethyl alcohol, hydrated oxide of ethyl, or Spirits of Wine, which is commonly produced by the fermentation or distillation of grain, starch, molasses or sugar, or other substances including all methods of production, dilutions and mixtures of this substance. (b) Alcoholic Beverage is synonymous with the term Liquor as defined in Section 4.05.013(f) of this Ordinance. (c) Beer means any beverage obtained by the alcoholic fermentation of an infusion or decoction 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 of Alcohol by volume. For the purposes of this title, any such beverage, including ale, stout, and porter, containing more than four percent of Alcohol by weight shall be referred to as ‘‘strong Beer.’’ VerDate Aug<31>2005 16:32 Dec 05, 2008 Jkt 217001 (d) Board means the Skokomish Indian Liquor Board as constituted under this Ordinance. (e) Gross Profits means total sales revenue less the cost of goods sold, no adjustment being made for additional expenses and taxes. (f) Liquor includes 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, a part of which is fermented, spirituous, vinous, or Malt Liquor, or otherwise intoxicating; and every liquid or solid or semi-solid 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, semi-solid, solid, or other substance, which contains more than one percent of Alcohol by weight shall be conclusively deemed to be intoxicating. (g) Malt Liquor means Beer, strong Beer, ale, stout, and porter. (h) Package means any container or receptacle used for holding Liquor. (i) Public Place includes state or county or tribal or federal highways or roads; buildings and grounds used for school purposes: Public dance halls and grounds adjacent thereto; soft drink establishments, public buildings, public meeting halls, lobbies, halls and dining rooms of hotels, restaurants, theaters, gaming facilities, entertainment centers, stores, garages, and filling stations which are open to and/or are generally used by the public and to which the public is permitted to have unrestricted access, and which are generally used by the public. For the purpose of this Ordinance, Public Place shall also include any establishment other than a single-family home, which is designed for or may be used by more than just the owner of the establishment. (j) Sale and Sell include exchange, barter, and traffic; and also include the selling 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. (k) Spirits means any beverage, which contains Alcohol obtained by distillation, including Wines exceeding seventeen percent of Alcohol by weight. (l) Taxpayer means one who pays or is subject to a tax. (m) Tribal Council means the governing body of the Skokomish Indian Tribe. (n) Tribal Liquor Store means any store, wholly owned by the Tribe at which Liquor is sold at retail and, for PO 00000 Frm 00063 Fmt 4703 Sfmt 4703 the purpose of this Ordinance, includes stores only a portion of which are devoted to the sale of Liquor. (o) Tribe means the Skokomish Indian Tribe. (p) Wine means any Alcoholic beverage obtained by fermentation of fruits (grapes, berries, apples, etc.) or other agricultural product containing sugar, to which any saccharine substances may have been added before, during, or after fermentation, and containing not more than seventeen percent Alcohol by weight, including sweet Wines fortified with Wine Spirits, such as port, sherry, muscatel, and angelica, not exceeding seventeen percent Alcohol by weight. Skokomish Indian Liquor Board 4.05.014 Liquor Agency Created (REPEALED) 4.05.015 Skokomish Indian Liquor Board (a) Liquor Board Established— Composition. There is hereby established a Skokomish Indian Liquor Board. The members of the Skokomish Tribal Council shall serve as the Skokomish Indian Liquor Board. (b) Powers of the Liquor Board. The Board is empowered to: (1) Administer this Ordinance by exercising general control, management, and supervision of all Liquor sales, places of sale, and sales outlets as well as exercising all powers necessary to accomplish the purposes of this Ordinance; (2) Adopt and enforce rules and regulations in furtherance of the purposes of this Ordinance and the performance of its administrative functions; (3) (REPEALED); (4) Bring suit in the appropriate court to enforce the provisions of this Ordinance with the consent of the Skokomish Tribal Council. The Board shall not, without the specific consent of the Council, waive the Board’s or the Tribe’s immunity from suit. 4.05.016 Liquor Business Manager (REPEALED)—Liquor Sales 4.05.017 Only Tribal Sales Allowed No sales of Alcoholic Beverages shall be made within the exterior boundaries of the Skokomish Indian Reservation, except at a Tribal Liquor Store or other Public Place wholly owned by the Tribe and authorized to sell Liquor. 4.05.018 All Sales Cash All sales at Tribal Liquor Stores shall be on a cash only basis and no credit shall be extended to any person, organization, or entity except that this E:\FR\FM\08DEN1.SGM 08DEN1 Federal Register / Vol. 73, No. 236 / Monday, December 8, 2008 / Notices provision does not prevent the payment for purchases with the use of a consumer credit or debit card issued by a federally chartered bank. 4.05.019 All Sales for Personal Use All sales shall be for the personal use of the purchaser, and resale for profit of an Alcoholic Beverage purchased at a Tribal Liquor Store is prohibited within the exterior boundaries of the Skokomish Indian Reservation. The purchase of an Alcoholic Beverage at a tribal store and subsequent resale of that beverage for profit, whether in the original container or not, shall be a violation of this Ordinance and the violator shall be subject to the penalties prescribed in Section 4.05.027. 4.05.020 Tribal Property The entire stock of Liquor and Alcoholic Beverages referred to under this Ordinance shall remain tribal property, owned and possessed by the Skokomish Indian Tribe until sold. Taxation and Proceeds mstockstill on PROD1PC66 with NOTICES 4.05.021 Tax Imposed There is hereby levied and shall be collected the following taxes: (a) On each retail sale of Spirits within the exterior boundaries of the Skokomish Indian Reservation, a tax at the rate of 5% of the retail sales price; and (b) On each retail sale of Beer and Wine within the exterior boundaries of the Skokomish Indian Reservation, a tax at the rate of 1%. 4.05.022 Taxes Due All taxes for the sale of Liquor and Alcoholic Beverages on the Skokomish Indian Reservation are due on the 15th day of the month following the end of the fiscal quarter for which taxes are due. (a) Delinquent Taxes. Past due taxes shall accrue interest at 2% per month. (b) Mandatory Reporting. In addition to payment of taxes imposed herein, the Taxpayer shall submit a quarterly accounting of all income from the sale or distribution of Liquor as well as for the taxes collected and remitted. (c) Annual Audit Required. The Taxpayer shall audit, on an annual basis, all Gross Proceeds from Liquor sales including tax assessed, overhead costs and the net proceeds distributed to the general fund of the Tribe as required in Section 4.05.023 of this Ordinance. 4.05.023 Distribution of Taxes All taxes from the sale of Liquor on the Skokomish Indian Reservation by or through the Board shall be paid over to the tax fund of the Skokomish Indian VerDate Aug<31>2005 16:32 Dec 05, 2008 Jkt 217001 Tribe and be subject to distribution by the Skokomish Tribal Council in accordance with its usual appropriation procedures for essential governmental and social services. Provided, however, that priority in funding shall be given to those tribal programs which demonstrate greatest need and past successful performance in providing community services to tribal members. 4.05.024 Distribution of Gross Profits The Gross Profits collected by the Taxpayer for all sales of Liquor within the exterior boundaries of the Skokomish Indian Reservation shall be distributed as follows: (a) For the payment of taxes provided in Section 4.05.021 of this Ordinance; (b) For the payment of all necessary personnel, administrative costs, and legal fees directly related to the sale of Liquor; (c) The remainder shall be turned over to the general fund of the Skokomish Indian Tribe on a monthly or other periodic payment schedule established by the Board and shall be expended by the Tribal Council for the general governmental services of the Tribe. Illegal Activities 4.05.025 Violations (a) Liquor Stamp—Contraband. It shall be a violation of this Ordinance for any person to sell Alcoholic Beverages within the exterior boundaries of the Skokomish Indian Reservation without a stamp of the Board affixed to the Package. All Alcoholic Beverages not so stamped which are sold or held for sale on the Skokomish Indian Reservation are hereby declared contraband and, in addition to any penalties or fines imposed by the Court for violation of this section, shall be confiscated and forfeited in accordance with the procedures set out in Rule 3.01.065 of the Skokomish Tribal Court Rules of Civil Procedure (S.T.C. 3.01.065) (b) Use of Seal. It shall be a violation of this Ordinance for any person, other than an employee of the Board, to willfully keep or have in his possession, any legal seal prescribed under this Ordinance unless the same is attached to a Package which has been purchased from a Tribal Liquor Store, or to willfully keep or have in his possession any design in imitation of any official seal prescribed under this Ordinance or calculated to deceive by its resemblance to any official seal, or any paper upon which such design is stamped, engraved, lithographed, printed or otherwise marked. (c) Illegal Sale of Liquor by Drink or Bottle. It shall be a violation of this PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 74515 Ordinance for any person to sell by the drink or bottle any Liquor, except as otherwise provided in this Ordinance. (d) Illegal Transportation, Still, or Sale without Permit. It shall be a violation of this Ordinance for any person to sell or offer for sale or transport in any manner, any Liquor in violation of this Ordinance, or to operate or have in his possession without a permit, any mash capable of being distilled into Liquor. (e) Illegal Purchase of Liquor. It shall be a violation of this Ordinance for any person within the exterior boundaries of the Skokomish Indian Reservation to buy Liquor from any person other than at a properly authorized Tribal Liquor Store or Public Place wholly owned by the Tribe. (f) Illegal Possession of Liquor—Intent to Sell. It shall be a violation of this Ordinance for any person to keep or possess Liquor upon his person or in any place or on premises conducted or maintained by him as a principal or agent with the intent to sell it contrary to the provisions of this Ordinance. (g) Sales to Persons Apparently Intoxicated. It shall be a violation of this Ordinance for any person to sell Liquor to a person apparently under the influence of Liquor. (h) Possession and Use of Liquor by Minors. Except in the case of Liquor given or permitted to be given to a person under the age of twenty-one (21) years by his parent or guardian, for beverage or medicinal purposes, or administered to him by his physician or dentist for medicinal purposes, it shall be a violation of this Ordinance for any person under the age of twenty-one (21) to consume, acquire, or have in his possession any Alcoholic Beverages except when such beverage is being used in connection with religious services. (i) Furnishing Liquor to Minors. It shall be a violation of this Ordinance for any person to permit any other person under the age of twenty-one (21) to consume Liquor on his premises or on any premises under his control, except in those special situations set forth in Section 4.05.024(h) above. (j) Sales of Liquor to Minors. It shall be a violation of this Ordinance for any person to sell any Liquor to any person under the age of twenty-one (21) years. (k) Unlawful Transfer of Identification. It shall be a violation of this Ordinance for any person to transfer in any manner an identification of age to a minor for the purpose of permitting such minor to obtain Liquor. Provided, that corroborative testimony of a witness other than the minor shall be a requirement for conviction. E:\FR\FM\08DEN1.SGM 08DEN1 74516 Federal Register / Vol. 73, No. 236 / Monday, December 8, 2008 / Notices (l) Possession of False or Altered Identification. It shall be a violation of this Ordinance for any person to attempt to purchase an Alcoholic Beverage through the use of false or altered identification, which falsely purports to show the individual to be over the age of twenty-one (21) years. Enforcement 4.05.026 Proof of Unlawful Sale— Intent In any proceeding under this Ordinance, proof of one unlawful sale of Liquor shall suffice to establish prima facie the intent or purpose of unlawfully keeping Liquor for sale in violation of this Ordinance. 4.05.027 Civil Penalties Any person adjudged to be in violation of this Ordinance shall be subject to a civil penalty of not more than Five Hundred Dollars ($500.00) for each such violation. The Board may adopt by separate rule or regulation a schedule of fines for each type of violation, taking into account its seriousness and the threat it may pose to the general health and welfare of tribal members. Such schedule may also provide, in the case of repeated violations, for imposition of monetary penalties greater than the Five Hundred Dollar ($500.00) limitation set forth above. The penalties provided for herein shall be in addition to any criminal penalties, which may hereafter be imposed by separate chapter or provision of the Skokomish Tribal Code. mstockstill on PROD1PC66 with NOTICES 4.05.028 Identification—Proof of Minimum Age Where there may be a question of a person’s right to purchase Liquor by reason of his age, such person shall be required to present any one of the following officially issued cards of identification which shows correct age and bears his signature and photograph: (a) Liquor control authority card of identification of any state; or (b) Driver’s license of any state or an identification card issued by any State Department of Motor Vehicles; or (c) United States Active Duty Military identification; or (d) Passport; or (e) Point-No-Point or other treaty area identification cards. 4.05.029 Illegal Items Declared Contraband Alcoholic Beverages which are possessed contrary to the terms of this section are declared to be contraband. Any tribal law enforcement officer who issues a citation under this section shall seize all contraband, which he or she VerDate Aug<31>2005 16:32 Dec 05, 2008 Jkt 217001 shall have the authority to seize consistent with the Skokomish Constitution and the applicable provisions of 25 U.S.C. 1302. 4.02.030 Preservation and Forfeiture Any tribal law enforcement officer seizing contraband shall preserve the contraband by placing it in a secured area provided for storage of impounded property and shall promptly prepare an inventory in accordance with Civil Rule 3.01.065 of the Skokomish Tribal Court Rules. Upon entry of judgment, the person adjudged to be in violation of this Ordinance shall forfeit all right, title, and interest in the items seized, which shall be disposed of in accordance with Civil Rule 3.01.065(h) of the Skokomish Tribal Court Rules. Provided, however, that the items so forfeited shall not be sold to any person not entitled to possess them under applicable law. 4.05.0031 Abatement (a) Declaration of Common Nuisance. Any room, house, building, boat, vessel, vehicle, structure, or other place where Liquor is sold, manufactured, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this Ordinance or of any other tribal law relating to the manufacture, importation, transportation, possession, distribution, and sale of Liquor, and all property kept in and used in maintaining such place, are hereby declared to be a common nuisance. (b) Institution of Action. The Chairman of the Board shall institute and maintain an action in the Tribal Court in the name of the Tribe to abate and perpetually enjoin any nuisance declared under this title. The plaintiff shall not be required to give bond in the action, and restraining orders, temporary injunctions, and permanent injunctions may be granted in the cause as in other injunction proceedings, and upon final judgment against the defendant, the court may also order the room, house, building, boat, vessel, vehicle, 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 surety to be approved by the Court in the sum of not less than One Thousand Dollars ($1,000.00), payable to the Tribe and conditioned that Liquor will not be thereafter manufactured, kept, sold, bartered, exchanged, given away, furnished, or otherwise disposed of thereof in violation of the provisions of this Ordinance or other tribal Liquor laws. If any condition of the bond be violated, the whole amount may be PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 recovered as a penalty for the use of the Tribe. Any action taken under this section shall be in addition to any other penalties provided for in this Ordinance. (c) Prima Facie Evidence of Common Nuisance. In all cases where any person has been adjudged to be in violation of this Ordinance or tribal laws relating to the manufacture, importation, transportation, possession, distribution, and sale of Liquor, an action may be brought in Tribal Court to abate as a nuisance any real estate or other property involved in the commission of the offense, and in any such action a certified copy of the record of such judgment shall be admissible in evidence as prima facie evidence that the room, house, vessel, boat, building, vehicle, structure, or place against which such action is brought is a public nuisance. [FR Doc. E8–29025 Filed 12–5–08; 8:45 am] BILLING CODE 4310–4J–P DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs The Confederated Tribes of the Grand Ronde Community of Oregon AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice. SUMMARY: This notice publishes an amendment to the Tribal Code (Code), Liquor Ordinance, for the Confederated Tribes of the Grand Ronde Community of Oregon first published in the Federal Register July 1, 1996. The amendment regulates and controls the possession and consumption of liquor within the tribal lands. The tribal lands are located in Indian country and this amended Code allows for possession of alcoholic beverages within their boundaries. This Code will increase the ability of the tribal government to control liquor possession, sale and in the community. DATES: Effective Date: This Ordinance is effective on December 8, 2008. FOR FURTHER INFORMATION CONTACT: Betty Scissons, Tribal Government Services Officer, Northwest Regional Office, 911 NE 11th Ave., 8th Floor, Portland, OR 97232, Telephone: (503) 231–6723, Fax (503) 231–2189; or Elizabeth Colliflower, Office of Indian Services, 1849 C Street, NW., Mail Stop 4513–MIB, Washington, DC 20240, Telephone: (202) 513–7640. 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 E:\FR\FM\08DEN1.SGM 08DEN1

Agencies

[Federal Register Volume 73, Number 236 (Monday, December 8, 2008)]
[Notices]
[Pages 74513-74516]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-29025]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Skokomish Liquor Control Ordinance

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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

SUMMARY: This notice publishes an amendment to the Skokomish Indian 
Tribe's Liquor Control Ordinance published in the Federal Register 
November 3, 1983 (48 FR 50797). The amendment regulates and controls 
the possession and consumption of liquor within the tribal lands. The 
tribal lands are located in Indian country and this amended Ordinance 
allows for possession of alcoholic beverages within their boundaries. 
This Ordinance will increase the ability of the tribal government to 
control liquor sales, possession and consumption by the community and 
its members.

DATES: Effective Date: This Ordinance is effective on January 7, 2009.

FOR FURTHER INFORMATION CONTACT: Betty Scissons, Tribal Government 
Services Officer, Northwest Regional Office, 911 NE 11th Ave., 8th 
Floor, Portland, OR 97232, Telephone: (503) 231-6723, Fax (503) 231-
2189; or Elizabeth Colliflower, Office of Indian Services, 1849 C 
Street, NW., Mail Stop 4513-MIB, Washington, DC 20240, Telephone: (202) 
513-7640.

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 or amended liquor ordinances for the purpose of regulating 
liquor transactions in Indian country. The Skokomish Indian Tribe 
amended its Tribal Liquor Control Ordinance by Resolution No. 08-011 on 
February 20, 2008. The purpose of this Ordinance is to govern the sale 
and possession of alcohol within tribal lands of the Tribe. This notice 
is published in accordance with the authority delegated by the 
Secretary of the Interior to the Assistant Secretary--Indian Affairs. I 
certify that the amended Skokomish Indian Tribe's Liquor Control 
Ordinance was duly adopted by the Skokomish Indian Tribe's Tribal 
Council on February 20, 2008.

    Dated: November 24, 2008.
George T. Skibine,
Acting Deputy Assistant Secretary for Policy and Economic Development.

    The amended Skokomish Indian Tribe's Liquor Control Ordinance reads 
as follows:

Skokomish Liquor Control Ordinance

General Provisions

4.05.001 Title
    This Ordinance shall be known as the Skokomish Liquor Control 
Ordinance.
4.05.002 Authority
    This Ordinance is enacted by the Skokomish Tribal Council, the 
governing body of the Skokomish Indian Tribe, which has the authority 
to enact laws and ordinances governing the conduct of individuals and 
defining offenses against the Tribe; to maintain order and to protect 
the safety and welfare of all persons within the Skokomish Tribe's 
jurisdiction pursuant to the Constitution of the Skokomish Indian Tribe 
Article IV, Section 1; Article V, Section 1(j).
4.05.003 Findings
    (a) The introduction, possession and sale of Liquor on Indian 
reservations have, since Treaty time, been clearly recognized as 
matters of special concern of Indian tribes and the United States 
Federal Government. The control of Liquor on reservations and federal 
trust land remains exclusively subject to their legislative enactments.
    (b) Federal law currently prohibits the introduction of Liquor into 
Indian Country (18 U.S.C. 1154), and expressly delegates to tribes the 
decision regarding when and to what extent Liquor transactions shall be 
permitted (18 U.S.C. 1161).
    (c) Present day circumstances make a complete ban on Liquor within 
the Skokomish Indian Reservation ineffective and unrealistic. However, 
a need still exists for strict regulation and control over Liquor 
transactions within the Reservation because of the many potential 
problems associated with the unregulated or inadequately regulated 
sale, possession and consumption of Liquor. The Tribal Council finds 
that exclusive tribal control and regulation of Liquor is necessary to 
achieve maximum economic benefit to the Tribe, to protect the health 
and welfare of the tribal members, and to address specific tribal 
concerns relating to Alcohol use on the Reservation.
    (d) The enactment of a tribal ordinance governing Liquor sales on 
the Skokomish Indian Reservation and providing for exclusive purchase 
and sale through a tribally owned and operated establishment will 
enhance the ability of the tribal government to control Reservation 
Liquor distribution and possession, and, at the same time, will provide 
an important source of revenue for the continued operation of the 
tribal government and the delivery of essential tribal social services.
4.05.004 Purpose
    Tribal regulation of the sale, possession, and consumption of 
Liquor on the Skokomish Indian Reservation is necessary to protect the 
health, security, and general welfare of the Skokomish Indian Tribe. In 
order to further these goals and to provide for an urgently needed 
additional source of governmental revenue, the Skokomish Tribal Council 
adopts this Liquor Ordinance to be known as the ``Skokomish Liquor 
Control Ordinance.'' This Ordinance shall be liberally construed to 
fulfill the purposes for which it has been adopted.
4.05.005 Jurisdiction
    (a) General Jurisdiction. The provisions of this Ordinance shall 
apply to the fullest extent of the sovereign jurisdiction of the 
Skokomish Indian Tribe as authorized by the Tribe's Constitution, the 
Treaty of Point No Point and applicable federal law.
    (b) Civil Jurisdiction. The Skokomish Tribal Court shall have 
exclusive jurisdiction to enforce the provisions of this Ordinance.
    (c) Disclaimer. Nothing in this Ordinance shall be construed to 
require or authorize the criminal trial and punishment by the Skokomish 
Tribal Court of any non-Indian except to the extent allowed by any 
applicable present or future Act of Congress or any applicable decision 
of the United States Supreme Court.
4.05.006 Severability
    If any provision or application of this Ordinance is determined by 
review to be invalid, such adjudication shall not be held to render 
ineffectual the remaining portions of this Ordinance or

[[Page 74514]]

to render such provisions inapplicable to other persons or 
circumstances.
4.05.007 Effective Date
    This Ordinance shall be effective upon certification by the 
Secretary of the Interior and its publication in the Federal Register.
4.05.008 Inconsistent Enactments Rescinded
    Any and all prior enactments of the Skokomish Tribal Council, which 
are inconsistent with the provisions of this Ordinance, are hereby 
rescinded.
4.05.009 Conformity with Tribal Constitution
    All provisions of, acts and transactions under this Ordinance shall 
at all times comply with the Constitution of the Skokomish Indian 
Tribe.
4.05.010 Sovereign Immunity Preserved
    Nothing in this Ordinance is intended or shall be construed as a 
waiver of the sovereign immunity, rights, powers or privileges of the 
Skokomish Indian Tribe.
4.05.011 Application of 18 U.S.C. Sec.  1161
    All acts and transactions under this Ordinance shall be in 
conformity with this Ordinance and in conformity with the laws of the 
State of Washington as that term is used in 18 U.S.C. 1161.
4.05.012 Amendment
    This Ordinance may only be amended by a vote of the Board.
4.05.013 Definitions
    (a) Alcohol means that substance known as ethyl alcohol, hydrated 
oxide of ethyl, or Spirits of Wine, which is commonly produced by the 
fermentation or distillation of grain, starch, molasses or sugar, or 
other substances including all methods of production, dilutions and 
mixtures of this substance.
    (b) Alcoholic Beverage is synonymous with the term Liquor as 
defined in Section 4.05.013(f) of this Ordinance.
    (c) Beer means any beverage obtained by the alcoholic fermentation 
of an infusion or decoction 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 of Alcohol by volume. For the 
purposes of this title, any such beverage, including ale, stout, and 
porter, containing more than four percent of Alcohol by weight shall be 
referred to as ``strong Beer.''
    (d) Board means the Skokomish Indian Liquor Board as constituted 
under this Ordinance.
    (e) Gross Profits means total sales revenue less the cost of goods 
sold, no adjustment being made for additional expenses and taxes.
    (f) Liquor includes 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, a 
part of which is fermented, spirituous, vinous, or Malt Liquor, or 
otherwise intoxicating; and every liquid or solid or semi-solid 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, semi-solid, 
solid, or other substance, which contains more than one percent of 
Alcohol by weight shall be conclusively deemed to be intoxicating.
    (g) Malt Liquor means Beer, strong Beer, ale, stout, and porter.
    (h) Package means any container or receptacle used for holding 
Liquor.
    (i) Public Place includes state or county or tribal or federal 
highways or roads; buildings and grounds used for school purposes: 
Public dance halls and grounds adjacent thereto; soft drink 
establishments, public buildings, public meeting halls, lobbies, halls 
and dining rooms of hotels, restaurants, theaters, gaming facilities, 
entertainment centers, stores, garages, and filling stations which are 
open to and/or are generally used by the public and to which the public 
is permitted to have unrestricted access, and which are generally used 
by the public. For the purpose of this Ordinance, Public Place shall 
also include any establishment other than a single-family home, which 
is designed for or may be used by more than just the owner of the 
establishment.
    (j) Sale and Sell include exchange, barter, and traffic; and also 
include the selling 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.
    (k) Spirits means any beverage, which contains Alcohol obtained by 
distillation, including Wines exceeding seventeen percent of Alcohol by 
weight.
    (l) Taxpayer means one who pays or is subject to a tax.
    (m) Tribal Council means the governing body of the Skokomish Indian 
Tribe.
    (n) Tribal Liquor Store means any store, wholly owned by the Tribe 
at which Liquor is sold at retail and, for the purpose of this 
Ordinance, includes stores only a portion of which are devoted to the 
sale of Liquor.
    (o) Tribe means the Skokomish Indian Tribe.
    (p) Wine means any Alcoholic beverage obtained by fermentation of 
fruits (grapes, berries, apples, etc.) or other agricultural product 
containing sugar, to which any saccharine substances may have been 
added before, during, or after fermentation, and containing not more 
than seventeen percent Alcohol by weight, including sweet Wines 
fortified with Wine Spirits, such as port, sherry, muscatel, and 
angelica, not exceeding seventeen percent Alcohol by weight.

Skokomish Indian Liquor Board

4.05.014 Liquor Agency Created (REPEALED)
4.05.015 Skokomish Indian Liquor Board
    (a) Liquor Board Established--Composition. There is hereby 
established a Skokomish Indian Liquor Board. The members of the 
Skokomish Tribal Council shall serve as the Skokomish Indian Liquor 
Board.
    (b) Powers of the Liquor Board. The Board is empowered to:
    (1) Administer this Ordinance by exercising general control, 
management, and supervision of all Liquor sales, places of sale, and 
sales outlets as well as exercising all powers necessary to accomplish 
the purposes of this Ordinance;
    (2) Adopt and enforce rules and regulations in furtherance of the 
purposes of this Ordinance and the performance of its administrative 
functions;
    (3) (REPEALED);
    (4) Bring suit in the appropriate court to enforce the provisions 
of this Ordinance with the consent of the Skokomish Tribal Council. The 
Board shall not, without the specific consent of the Council, waive the 
Board's or the Tribe's immunity from suit.
4.05.016 Liquor Business Manager (REPEALED)--Liquor Sales
4.05.017 Only Tribal Sales Allowed
    No sales of Alcoholic Beverages shall be made within the exterior 
boundaries of the Skokomish Indian Reservation, except at a Tribal 
Liquor Store or other Public Place wholly owned by the Tribe and 
authorized to sell Liquor.
4.05.018 All Sales Cash
    All sales at Tribal Liquor Stores shall be on a cash only basis and 
no credit shall be extended to any person, organization, or entity 
except that this

[[Page 74515]]

provision does not prevent the payment for purchases with the use of a 
consumer credit or debit card issued by a federally chartered bank.
4.05.019 All Sales for Personal Use
    All sales shall be for the personal use of the purchaser, and 
resale for profit of an Alcoholic Beverage purchased at a Tribal Liquor 
Store is prohibited within the exterior boundaries of the Skokomish 
Indian Reservation. The purchase of an Alcoholic Beverage at a tribal 
store and subsequent resale of that beverage for profit, whether in the 
original container or not, shall be a violation of this Ordinance and 
the violator shall be subject to the penalties prescribed in Section 
4.05.027.
4.05.020 Tribal Property
    The entire stock of Liquor and Alcoholic Beverages referred to 
under this Ordinance shall remain tribal property, owned and possessed 
by the Skokomish Indian Tribe until sold.

Taxation and Proceeds

4.05.021 Tax Imposed
    There is hereby levied and shall be collected the following taxes:
    (a) On each retail sale of Spirits within the exterior boundaries 
of the Skokomish Indian Reservation, a tax at the rate of 5% of the 
retail sales price; and
    (b) On each retail sale of Beer and Wine within the exterior 
boundaries of the Skokomish Indian Reservation, a tax at the rate of 
1%.
4.05.022 Taxes Due
    All taxes for the sale of Liquor and Alcoholic Beverages on the 
Skokomish Indian Reservation are due on the 15th day of the month 
following the end of the fiscal quarter for which taxes are due.
    (a) Delinquent Taxes. Past due taxes shall accrue interest at 2% 
per month.
    (b) Mandatory Reporting. In addition to payment of taxes imposed 
herein, the Taxpayer shall submit a quarterly accounting of all income 
from the sale or distribution of Liquor as well as for the taxes 
collected and remitted.
    (c) Annual Audit Required. The Taxpayer shall audit, on an annual 
basis, all Gross Proceeds from Liquor sales including tax assessed, 
overhead costs and the net proceeds distributed to the general fund of 
the Tribe as required in Section 4.05.023 of this Ordinance.
4.05.023 Distribution of Taxes
    All taxes from the sale of Liquor on the Skokomish Indian 
Reservation by or through the Board shall be paid over to the tax fund 
of the Skokomish Indian Tribe and be subject to distribution by the 
Skokomish Tribal Council in accordance with its usual appropriation 
procedures for essential governmental and social services. Provided, 
however, that priority in funding shall be given to those tribal 
programs which demonstrate greatest need and past successful 
performance in providing community services to tribal members.
4.05.024 Distribution of Gross Profits
    The Gross Profits collected by the Taxpayer for all sales of Liquor 
within the exterior boundaries of the Skokomish Indian Reservation 
shall be distributed as follows:
    (a) For the payment of taxes provided in Section 4.05.021 of this 
Ordinance;
    (b) For the payment of all necessary personnel, administrative 
costs, and legal fees directly related to the sale of Liquor;
    (c) The remainder shall be turned over to the general fund of the 
Skokomish Indian Tribe on a monthly or other periodic payment schedule 
established by the Board and shall be expended by the Tribal Council 
for the general governmental services of the Tribe.

Illegal Activities

4.05.025 Violations
    (a) Liquor Stamp--Contraband. It shall be a violation of this 
Ordinance for any person to sell Alcoholic Beverages within the 
exterior boundaries of the Skokomish Indian Reservation without a stamp 
of the Board affixed to the Package. All Alcoholic Beverages not so 
stamped which are sold or held for sale on the Skokomish Indian 
Reservation are hereby declared contraband and, in addition to any 
penalties or fines imposed by the Court for violation of this section, 
shall be confiscated and forfeited in accordance with the procedures 
set out in Rule 3.01.065 of the Skokomish Tribal Court Rules of Civil 
Procedure (S.T.C. 3.01.065)
    (b) Use of Seal. It shall be a violation of this Ordinance for any 
person, other than an employee of the Board, to willfully keep or have 
in his possession, any legal seal prescribed under this Ordinance 
unless the same is attached to a Package which has been purchased from 
a Tribal Liquor Store, or to willfully keep or have in his possession 
any design in imitation of any official seal prescribed under this 
Ordinance or calculated to deceive by its resemblance to any official 
seal, or any paper upon which such design is stamped, engraved, 
lithographed, printed or otherwise marked.
    (c) Illegal Sale of Liquor by Drink or Bottle. It shall be a 
violation of this Ordinance for any person to sell by the drink or 
bottle any Liquor, except as otherwise provided in this Ordinance.
    (d) Illegal Transportation, Still, or Sale without Permit. It shall 
be a violation of this Ordinance for any person to sell or offer for 
sale or transport in any manner, any Liquor in violation of this 
Ordinance, or to operate or have in his possession without a permit, 
any mash capable of being distilled into Liquor.
    (e) Illegal Purchase of Liquor. It shall be a violation of this 
Ordinance for any person within the exterior boundaries of the 
Skokomish Indian Reservation to buy Liquor from any person other than 
at a properly authorized Tribal Liquor Store or Public Place wholly 
owned by the Tribe.
    (f) Illegal Possession of Liquor--Intent to Sell. It shall be a 
violation of this Ordinance for any person to keep or possess Liquor 
upon his person or in any place or on premises conducted or maintained 
by him as a principal or agent with the intent to sell it contrary to 
the provisions of this Ordinance.
    (g) Sales to Persons Apparently Intoxicated. It shall be a 
violation of this Ordinance for any person to sell Liquor to a person 
apparently under the influence of Liquor.
    (h) Possession and Use of Liquor by Minors. Except in the case of 
Liquor given or permitted to be given to a person under the age of 
twenty-one (21) years by his parent or guardian, for beverage or 
medicinal purposes, or administered to him by his physician or dentist 
for medicinal purposes, it shall be a violation of this Ordinance for 
any person under the age of twenty-one (21) to consume, acquire, or 
have in his possession any Alcoholic Beverages except when such 
beverage is being used in connection with religious services.
    (i) Furnishing Liquor to Minors. It shall be a violation of this 
Ordinance for any person to permit any other person under the age of 
twenty-one (21) to consume Liquor on his premises or on any premises 
under his control, except in those special situations set forth in 
Section 4.05.024(h) above.
    (j) Sales of Liquor to Minors. It shall be a violation of this 
Ordinance for any person to sell any Liquor to any person under the age 
of twenty-one (21) years.
    (k) Unlawful Transfer of Identification. It shall be a violation of 
this Ordinance for any person to transfer in any manner an 
identification of age to a minor for the purpose of permitting such 
minor to obtain Liquor. Provided, that corroborative testimony of a 
witness other than the minor shall be a requirement for conviction.

[[Page 74516]]

    (l) Possession of False or Altered Identification. It shall be a 
violation of this Ordinance for any person to attempt to purchase an 
Alcoholic Beverage through the use of false or altered identification, 
which falsely purports to show the individual to be over the age of 
twenty-one (21) years.

Enforcement

4.05.026 Proof of Unlawful Sale--Intent
    In any proceeding under this Ordinance, proof of one unlawful sale 
of Liquor shall suffice to establish prima facie the intent or purpose 
of unlawfully keeping Liquor for sale in violation of this Ordinance.
4.05.027 Civil Penalties
    Any person adjudged to be in violation of this Ordinance shall be 
subject to a civil penalty of not more than Five Hundred Dollars 
($500.00) for each such violation. The Board may adopt by separate rule 
or regulation a schedule of fines for each type of violation, taking 
into account its seriousness and the threat it may pose to the general 
health and welfare of tribal members. Such schedule may also provide, 
in the case of repeated violations, for imposition of monetary 
penalties greater than the Five Hundred Dollar ($500.00) limitation set 
forth above. The penalties provided for herein shall be in addition to 
any criminal penalties, which may hereafter be imposed by separate 
chapter or provision of the Skokomish Tribal Code.
4.05.028 Identification--Proof of Minimum Age
    Where there may be a question of a person's right to purchase 
Liquor by reason of his age, such person shall be required to present 
any one of the following officially issued cards of identification 
which shows correct age and bears his signature and photograph:
    (a) Liquor control authority card of identification of any state; 
or
    (b) Driver's license of any state or an identification card issued 
by any State Department of Motor Vehicles; or
    (c) United States Active Duty Military identification; or
    (d) Passport; or
    (e) Point-No-Point or other treaty area identification cards.
4.05.029 Illegal Items Declared Contraband
    Alcoholic Beverages which are possessed contrary to the terms of 
this section are declared to be contraband. Any tribal law enforcement 
officer who issues a citation under this section shall seize all 
contraband, which he or she shall have the authority to seize 
consistent with the Skokomish Constitution and the applicable 
provisions of 25 U.S.C. 1302.
4.02.030 Preservation and Forfeiture
    Any tribal law enforcement officer seizing contraband shall 
preserve the contraband by placing it in a secured area provided for 
storage of impounded property and shall promptly prepare an inventory 
in accordance with Civil Rule 3.01.065 of the Skokomish Tribal Court 
Rules. Upon entry of judgment, the person adjudged to be in violation 
of this Ordinance shall forfeit all right, title, and interest in the 
items seized, which shall be disposed of in accordance with Civil Rule 
3.01.065(h) of the Skokomish Tribal Court Rules. Provided, however, 
that the items so forfeited shall not be sold to any person not 
entitled to possess them under applicable law.
4.05.0031 Abatement
    (a) Declaration of Common Nuisance. Any room, house, building, 
boat, vessel, vehicle, structure, or other place where Liquor is sold, 
manufactured, bartered, exchanged, given away, furnished, or otherwise 
disposed of in violation of the provisions of this Ordinance or of any 
other tribal law relating to the manufacture, importation, 
transportation, possession, distribution, and sale of Liquor, and all 
property kept in and used in maintaining such place, are hereby 
declared to be a common nuisance.
    (b) Institution of Action. The Chairman of the Board shall 
institute and maintain an action in the Tribal Court in the name of the 
Tribe to abate and perpetually enjoin any nuisance declared under this 
title. The plaintiff shall not be required to give bond in the action, 
and restraining orders, temporary injunctions, and permanent 
injunctions may be granted in the cause as in other injunction 
proceedings, and upon final judgment against the defendant, the court 
may also order the room, house, building, boat, vessel, vehicle, 
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 surety to be approved by the Court in the sum of not less 
than One Thousand Dollars ($1,000.00), payable to the Tribe and 
conditioned that Liquor will not be thereafter manufactured, kept, 
sold, bartered, exchanged, given away, furnished, or otherwise disposed 
of thereof in violation of the provisions of this Ordinance or other 
tribal Liquor laws. If any condition of the bond be violated, the whole 
amount may be recovered as a penalty for the use of the Tribe. Any 
action taken under this section shall be in addition to any other 
penalties provided for in this Ordinance.
    (c) Prima Facie Evidence of Common Nuisance. In all cases where any 
person has been adjudged to be in violation of this Ordinance or tribal 
laws relating to the manufacture, importation, transportation, 
possession, distribution, and sale of Liquor, an action may be brought 
in Tribal Court to abate as a nuisance any real estate or other 
property involved in the commission of the offense, and in any such 
action a certified copy of the record of such judgment shall be 
admissible in evidence as prima facie evidence that the room, house, 
vessel, boat, building, vehicle, structure, or place against which such 
action is brought is a public nuisance.

 [FR Doc. E8-29025 Filed 12-5-08; 8:45 am]
BILLING CODE 4310-4J-P