Klamath Tribes Liquor Control Ordinance, 65373-65376 [2010-26695]

Agencies

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

[Federal Register Volume 75, Number 204 (Friday, October 22, 2010)]
[Notices]
[Pages 65373-65376]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-26695]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Klamath Tribes Liquor Control Ordinance

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: This notice publishes the Secretary's certification of the 
amendment to the Klamath Tribes Liquor Control Ordinance. The first 
Ordinance was published in the Federal Register on November 11, 1953 
(18 FR 7178 (1953)). This amendment further regulates and controls the 
sale, possession and distribution 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 possession, sale and use in the community.

DATES: Effective Date: This Ordinance is effective on November 22, 
2010.

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

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4513-MIB, Washington, DC 20240, Telephone: (202) 513-7641.

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 Klamath Tribes enacted this Liquor 
Control Ordinance by General Council Resolution  2010-004 on 
May 22, 2010. The purpose of this amended ordinance is to govern the 
possession, sale and distribution of alcohol within tribal lands of the 
Klamath Tribes.
    This notice is published in accordance with the authority delegated 
by the Secretary of the Interior to the Assistant Secretary--Indian 
Affairs. I certify that this Liquor Control Ordinance of the Klamath 
Tribes was duly adopted by the General Council, on May 22, 2010.

Donald Laverdure,
Deputy Assistant Secretary for Indian Affairs.

    The Klamath Tribes Liquor Control Ordinance reads as follows:

Liquor Control Ordinance of the Klamath Tribes

General

    Title. This ordinance shall be known as ``The Klamath Tribes Liquor 
Control Ordinance.''
    Authority. This ordinance is enacted pursuant to the Act of August 
15, 1953, 67 Stat. 586, codified at 18 U.S.C. 1161 by the authority of 
the General Council under the Constitution of the Klamath and Modoc 
Tribes and the Yahooskin Band of Snake Indians, Article VI, Section G.
    General Purpose. The purpose of this ordinance is to regulate the 
sale, distribution and possession of liquor on the Klamath Indian 
Reservation and other lands subject to tribal governance.

Article I. Definitions

    1.1. As used in the title, these words shall have the following 
meanings unless the context clearly requires otherwise:
    1.1.1. ``Alcohol'' means that substance known as ethyl alcohol, 
hydrated oxide of ethyl, alcohol, ethanol, or spirits of wine, from 
whatever source or by whatever process produced.
    1.1.2. ``Bar'' means any establishment with special space and 
accommodations for the sale of liquor by the glass and for consumption 
on the premises.
    1.1.3. ``Beer'' means any alcoholic 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 water.
    1.1.4. ``Liquor'' includes all fermented, spirituous, vinous, or 
malt liquor or combinations thereof, and mixed liquor, a part of which 
is fermented, and every liquid or solid or semisolid or other 
substance, patented or not, containing distilled or rectified spirits, 
potable alcohol, beer, wine, brandy, whiskey, rum, gin, aromatic 
bitters, and all drinks or drinkable liquids and all preparations or 
mixtures capable of human consumption and any liquid, semisolid, solid, 
or other substances, which contain alcohol.
    1.1.5. ``Liquor Store'' means any store at which liquor is sold 
and, for the purpose of this ordinance, including stores only a portion 
of which are devoted to sale of liquor.
    1.1.6. ``Malt Liquor'' means beer, strong beer, ale, stout and 
porter.
    1.1.7. ``Package'' means any container or receptacle used for 
holding liquor.
    1.1.8. ``Person'' means any natural person, firm, partnership, 
joint venture, association, corporation, municipal corporation, estate, 
trust, business receiver, or any group or combination acting as a unit 
and the plural as well as the singular in number.
    1.1.9. ``Public Place'' includes state, county, 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 room 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; public conveyances of all 
kinds and character; and all other places of like or similar nature to 
which the general public has unrestricted right of access, and which 
are generally used by the public.
    1.1.10. ``Reservation'' means all territory within the exterior 
boundaries of the area recognized as The Klamath Indian Reservation and 
all other territory (i) which is or in the future may be located 
outside of said boundaries, and (ii) to which it is possible to extend 
the Tribes' jurisdiction or authority, including, without limitation, 
territory within the exterior boundaries of Indian country of the 
Tribes or of its members and all property held by the United States in 
trust for the Tribes or for a member of the Tribes.
    1.1.11. ``Sale'' and ``Sell'' include exchange, barter and traffic, 
and also include the selling or supplying or distributing of liquor, by 
any means whatsoever, by any person to any person.
    1.1.12. ``Spirits'' means any beverage which contains alcohol 
obtained by distillation, including wines exceeding seventeen percent 
of alcohol by weight.
    1.1.13. ``Tribes'' means the Klamath and Modoc Tribes and the 
Yahooskin Band of Snake Indians.
    1.1.14. ``Tribal Council'' means the governing body of the Tribes 
with respect to governmental functions.
    1.1.15. ``Tribal Court'' means Tribal Court for the Tribes.
    1.1.16. ``Wine'' means any alcoholic beverage obtained by 
fermentation of the natural contents of fruits, vegetables, honey, milk 
or other products containing sugar, whether or not other ingredients 
are added during or after fermentation, and containing not more than 17 
percent of alcohol by weight, including sweet wines fortified with wine 
spirits, such as port, sherry, muscatel and angelica, not exceeding 17 
percent of alcohol by weight.
    1.1.17. ``General Council'' means all eligible voters of the 
Klamath, Modoc and Yahooskin Band of Snake Indians.

Article II. Rules, Regulations and Enforcement

    2.1. It shall be a violation of this ordinance for any person:
    2.1.1. To in any manner introduce, sell, offer for sale, 
distribute, transport, consume, use or possess liquor on the 
Reservation except as expressly permitted by this ordinance,
    2.1.2. To buy liquor on the Reservation from any person other than 
a tribally-licensed person,
    2.1.3. Engaged wholly or in part in the business of carrying 
passengers for hire, and every agent, servant, or employee of such 
person, to permit any person to drink liquor in any public conveyance 
or for any person to consume liquor in a public conveyance,
    2.1.4. To possess liquor with the intent to sell except as 
expressly permitted by this ordinance,
    2.1.5. Under the age of 21 years to consume, acquire or have in 
possession any liquor,
    2.1.6. Owning or controlling a premises to permit any other person 
under the age of 21 to consume liquor on such premises except as 
expressly exempted by this ordinance,
    2.1.7. To sell or provide any liquor to any person under the age of 
21 years,
    2.1.8. To transfer in any manner an identification of age to a 
person under the age of 21 years for the purpose of

[[Page 65375]]

permitting such person to obtain liquor; provided, that there is 
corroborative testimony of a witness other than the underage person,
    2.1.9. To knowingly sell liquor to a person under the influence of 
liquor,
    2.1.10. To attempt to purchase liquor through the use of false or 
altered identification which falsely purports to show the individual as 
being over the age of 21 years, or
    2.1.11. To possess, introduce or consume liquor at a place or 
premises that is or would be considered a public, common or other 
nuisance under any tribal, state or federal statutory or common law.
    2.2. Any person who promotes any activity or owns or controls land 
on which there is any activity that is a violation of this ordinance 
shall be liable for and subject to the same penalties and proceedings 
as the person who directly commits the violation.
    2.3. Any person guilty of a violation of this ordinance shall be 
liable to pay the Tribes up to $5,000 per violation as civil penalties.
    2.4. When requested by the provider of liquor, a person shall be 
required to present official documentation of the bearer's age, 
signature and photograph. Official documentation includes one of the 
following:
    2.4.1. Driver's license or identification card issued by any state 
department of motor vehicles;
    2.4.2. United States Active Duty Military card; or
    2.4.3. Passport; or
    2.4.4. Official Tribal Identification from Federally recognized 
Tribes.
    2.5. Liquor which is possessed contrary to the terms of this 
ordinance is declared to be contraband. Any tribal agent, employee or 
officer who is authorized by the General Council to enforce this 
ordinance shall seize all contraband and preserve it in accordance with 
the provisions established for the preservation of impounded property. 
Upon being found in violation of the ordinance, the party shall forfeit 
all right, title and interest in the items seized which shall become 
the property of the Tribes.

Article III. Abatement

    3.1. Any room, house, building, vehicle, structure, land or other 
place where liquor is sold, manufactured, bartered, exchanged, given 
away, furnished, consumed or possessed or otherwise disposed of in 
violation of the provisions of this ordinance or of any other tribal 
law, and all property kept in and used in maintaining such place, is 
hereby declared to be a nuisance.
    3.2. The Chairman of the Tribal Council or, if the Chairman fails 
or refuses to do so, by a majority vote, the General Council may 
institute and maintain an action in the Tribal Court in the name of the 
Tribes to abate and perpetually enjoin any nuisance declared under this 
article. In addition to other remedies at tribal law, depending upon 
the severity of past offenses, the risk of offenses in the future, the 
effect of the violator's activity on public health, safety or welfare 
and any other appropriate criteria, the Tribal Court may order the 
room, house, building, vehicle, structure, land or place closed or it 
may require the owner, lessee, tenant, or occupant thereof to give bond 
payable to the Tribes, of sufficient sum and conditioned that liquor 
will not be thereafter manufactured, kept, sold, bartered, exchanged, 
given away, furnished, possessed, consumed or otherwise disposed of in 
violation of the provisions of this ordinance or of any other 
applicable tribal law and that such person will pay all penalties, 
fees, costs and damages assessed against him for any violation of this 
ordinance or other tribal laws. If any conditions of the bond be 
violated, the bond may be applied to satisfy any amounts due to the 
Tribes. No order or injunction closing any business for a violation of 
this ordinance shall be issued without granting the opportunity to have 
a full evidentiary and adversary hearing.
    3.3. In all cases where any person has been found in violation of 
this ordinance, an action may be brought to abate as a nuisance any 
real estate or other property involved in the violation of the 
ordinance, and violation of this ordinance shall be prima facie 
evidence that the room, house, building, vehicle, structure, land or 
place against which such action is brought is a public nuisance.

Article IV. Powers of Enforcement

    4.1. Powers and Duties. In furtherance of this ordinance, the 
General Council shall have the following powers and duties:
    4.1.1. To publish and enforce rules and regulations governing 
liquor on the Reservation;
    4.1.2. To employ managers, accountants, security personnel, 
inspectors and such other persons as shall be reasonably necessary to 
allow the General Council to perform its functions;
    4.1.3. To issue licenses permitting the sale, manufacture or 
distribution of liquor on the Reservation;
    4.1.4. To bring proceedings in the Tribal Court or other 
appropriate forum to enforce this ordinance as necessary;
    4.1.5. To seek penalties, taxes, damages, fees and other 
appropriate remedies, orders and injunctions for the violation of this 
ordinance;
    4.1.6. To makes such reports as may be required; and
    4.1.7. To collect taxes and fees levied or set by the General 
Council and to keep accurate records, books and accounts.
    4.2. Limitations on Powers. In the exercise of its powers and 
duties under this ordinance, the General Council and its individual 
members shall not:
    4.2.1. Accept any gratuity, compensation or other thing of value 
from any liquor wholesaler, retailer, or distributor or from any 
licensee;
    4.2.2. Waive the immunity of the Tribes from suit without the 
express written consent and resolution of the Tribal Council.
    4.3. Inspection Rights. All premises on which liquor is sold, 
consumed, possessed or distributed shall be open for inspection by the 
Tribes at all reasonable times for the purposes of ascertaining whether 
the rules and regulations of the General Council and this ordinance are 
being complied with.
    4.4. Hearings and Appeals. Violations of this ordinance shall be 
deemed a civil offense against the Tribes. Civil actions by the Tribes 
against violators may proceed in hearings initiated and held by any 
hearing officer designated by General Council. The General Council may 
impose penalties, damages, costs, taxes and attorneys fees and take any 
other actions reasonably necessary to carry out this ordinance. 
Liabilities imposed under this ordinance shall be a lien upon the 
violator's property located on the reservation until paid and may be 
enforced and executed upon through the Tribal Court. Orders issued 
hereunder may be appealed to Tribal Court and considered under the 
arbitrary and capricious standard of review.

Article V. Sales of Liquor

    5.1. License Required. Sales of liquor on the Reservation may only 
be made at businesses which hold a license issued pursuant to this 
ordinance.
    5.2. Sales for Cash. All liquor sales on the Reservation shall be 
on a cash only basis and no credit shall be extended to any person, 
organization, or entity, except that the provision does not prevent the 
payment for purchases with use of credit cards such as Visa, 
MasterCard, American Express, etc.
    5.3. Sale for Personal Consumption. All sales shall be for the 
personal use

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and consumption of the purchaser. Resale of any liquor on the 
Reservation is prohibited. Any person who is not licensed pursuant to 
this ordinance who purchases liquor on the Reservation and sells it, 
whether in the original container or not, shall violate this ordinance.

Article VI. Licensing

    6.1. Procedure. All persons or entities which desire to sell liquor 
on the Reservation must apply to the Tribes for a license.
    6.2. Application. Any person or entity applying for a license to 
sell or serve liquor on the Reservation must fill in the application 
provided for this purpose by the Tribes and pay such application fee as 
may be set from time to time by the General Council for this purpose. 
Said application must be filled out completely in order to be 
considered.
    6.3. Issuance of License. The General Council may issue a license 
if it believes that such issuance is in the best interests of the 
Tribes.
    6.4. Period of License. Each license may be issued for a period not 
to exceed two years from the date of issuance.
    6.5. Renewal of License. A licensee may renew its license if the 
licensee has complied in full with this ordinance provided however, 
that the General Council may refuse to renew a license if it finds that 
doing so would not be in the best interests of the health and safety of 
the Tribes.
    6.6. Revocation of License. The General Council may suspend or 
revoke a license due to one or more violations of this ordinance upon 
notice and hearing at which the licensee is given an opportunity to 
respond to any charges against it and to demonstrate why the license 
should not be suspended or revoked.
    6.7. Non-transferability of Licenses. Licenses issued by the 
General Council shall not be transferable and may only be utilized by 
the person or entity in whose name it was issued.

Article VII. Taxes

    7.1. Sales Tax. The General Council shall have the authority, as 
may subsequently be specified under tribal law, to levy and to collect 
a tax on each retail sale of liquor on the Reservation based upon a 
percent of the retail sales price. All taxes from the sale of liquor on 
the Reservation shall be paid over to the General Treasury of the 
Tribes.
    7.2. Taxes Due. All taxes for the sale of liquor on the Reservation 
are due on the 15th day of the month following the end of the calendar 
quarter for which the taxes are due or on such other dates as specified 
by tribal regulation.
    7.3. Delinquent Taxes. Past due taxes shall accrue interest at 2 
percent per month.
    7.4. Reports. Along with payment of the 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.
    7.5. Audit. As a condition of obtaining a license, the licensee 
must agree to the review or audit of its book and records relating to 
the sale of liquor on the Reservation. Said review or audit may be done 
periodically by the Tribes or through its agents or employees whenever, 
in the opinion of the General Council, such a review or audit is 
necessary to verify the accuracy of reports.

Article VIII. Revenue

    Revenue collected under this ordinance, from whatever source, shall 
be expended for administrative costs incurred in the enforcement of 
this ordinance. Excess funds shall be subject to appropriation by the 
General Council for governmental social services, including education, 
prevention and treatment programs to fight alcohol abuse on the 
Reservation.

Article IX. Exceptions

    9.1. The introduction, distribution, transport, consumption, sale, 
offer for sale, use, consumption and possession of liquor is permitted:
    9.1.1. For consumption at a gaming facility complex or other 
tribally-owned enterprise,
    9.1.2. For scientific research or manufacturing products other than 
liquor,
    9.1.3. For medical use under the direction of a physician, medical 
or dental clinic, or hospital,
    9.1.4. For preparations not fit for human consumption such as 
cleaning compounds and toilet products, and for flavoring extracts, or
    9.1.5. For sacramental use.
    9.2. The consumption and possession of liquor for personal 
consumption by a person legally present on private, non-commercial 
property is permitted, subject to applicable tribal law.
    9.3. These exceptions shall be narrowly construed.

Article X. Severability and Effective Date

    10.1. If any provision or application of this ordinance is 
determined by review to be invalid, such determination shall not be 
held to render ineffectual the remaining portions of this ordinance or 
to render such provisions inapplicable to other persons or 
circumstances.
    10.2. This ordinance is effective 30 days after the date of 
publication in the Federal Register.

Article XI. Amendment and Construction

    11.1. This ordinance may only be amended by a vote of the General 
Council or as otherwise allowed by Tribal law.
    11.2. Nothing in this ordinance shall be construed to diminish or 
impair in any way the rights, sovereign powers or sovereign immunity of 
the Tribes.
    11.3. This Ordinance conforms to all requisite laws pursuant to 18 
U.S.C. 1161. The Tribes will comply with Oregon Liquor Laws to the 
extent required by 18 U.S.C. 1161.

Certification

    We, the undersigned, as Chairman and Secretary of the Klamath 
Tribes, do hereby certify that at a Regular General Council meeting 
held on the 22nd day of May, 2010 where a quorum was present, the 
General Council duly adopted this Resolution by a vote of -- 43 ---- 
for, ---- 4 ---- opposed, and -- 8 ---- abstaining.

Gary Frost,
Chairman, The Klamath Tribes.
Torina Case,
Secretary, The Klamath Tribes.
[FR Doc. 2010-26695 Filed 10-21-10; 8:45 am]
BILLING CODE 4310-4J-P