Habematolel Pomo of Upper Lake-Tribal Liquor Ordinance No. 2008-01, 31381-31385 [2012-12843]
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Federal Register / Vol. 77, No. 102 / Friday, May 25, 2012 / Notices
Antelope Refuge and will not be
considered in the revised CCP.
Public Meetings
We will give the public an
opportunity to provide input at public
meetings. We will hold a meeting on
May 31, 2012, at 6 p.m. at Daly Middle
School, 220 South H Street, Lakeview,
Oregon. We will hold another meeting
on June 4, 2012, at 6 p.m. at Plush
Elementary School in Plush, Oregon.
These public open houses will be
announced in press releases, planning
updates, and on our Web site: https://
www.fws.gov/sheldonhartmtn/Hart/
refuge_planning.html. You may also
send comments anytime during the
planning process by mail or email (see
ADDRESSES).
Public Availability of Comments
Before including your address, phone
number, email address, or other
personal identifying information in your
comment, you should be aware that
your entire comment—including your
personal identifying information—may
be made publicly available at any time.
While you can ask us in your comment
to withhold your personal identifying
information from public review, we
cannot guarantee that we will be able to
do so.
Dated: April 2, 2012.
Richard R. Hannan,
Acting Regional Director, Pacific Region,
Portland, Oregon.
[FR Doc. 2012–12353 Filed 5–24–12; 8:45 am]
BILLING CODE 4410–55–P
Dated: May 22, 2012.
Donald E. Laverdure,
Acting Assistant Secretary—Indian Affairs.
DEPARTMENT OF THE INTERIOR
The Tribal Liquor Ordinance No
2008–01 of the Habematolel Pomo of
Upper Lake shall read as follows:
Bureau of Indian Affairs
Habematolel Pomo of Upper Lake—
Tribal Liquor Ordinance No. 2008–01
Article I—Title
This Ordinance shall be known as the
‘‘Liquor Ordinance of the Habematolel
Pomo of Upper Lake.’’
Bureau of Indian Affairs,
Interior.
ACTION: Notice.
AGENCY:
This notice publishes the
Tribal Liquor Ordinance No. 2008–01 of
the Habematolel Pomo of Upper Lake.
The Ordinance regulates and controls
the possession, sale and consumption of
liquor within the Indian Country of the
Habematolel Pomo of Upper Lake. The
land is trust land and this Ordinance
allows for the possession and sale of
alcoholic beverages within the
jurisdiction of the Habematolel Pomo of
Upper Lake. This Ordinance will
increase the ability of the tribal
government to control the distribution
and possession of liquor within their
jurisdiction, and at the same time will
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SUMMARY:
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provide an important source of revenue,
the strengthening of the tribal
government and the delivery of tribal
services.
DATES: Effective Date: This Amendment
is effective May 25, 2012.
FOR FURTHER INFORMATION CONTACT:
Sophia Torres, Tribal Government
Specialist, Pacific Regional Office,
Bureau of Indian Affairs, 2800 Cottage
Way, Sacramento, CA 95825, Phone:
(916)978–6073; Fax: (916)916–6099: or
De Springer, Office of Indian Services,
Bureau of Indian Affairs, 1849 C Street
NW., MS–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 liquor
ordinances for the purpose of regulating
liquor transactions in Indian country.
The Habematolel Pomo of Upper Lake
adopted this Ordinance by Resolution
No. 04–12–03 on April 16, 2012.
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 Habermatolel Pomo of
Upper Lake Executive Council duly
adopted the Tribal Liquor Ordinance No
2008–01 of the Habematolel Pomo of
Upper Lake by Resolution No. 04–12–03
on April 16, 2012.
Article II—Authority
This Liquor Ordinance is enacted
pursuant to the Act of August 15, 1953
(Pub. L. 83–277, and 67 Stat. 586, 18
U.S.C. section 1161), as interpreted by
Rice v. Renner, 463 U.S. 713 (1983) and
the Constitution of the Habematolel
Pomo of Upper Lake, a federally
recognized Indian tribe (‘‘Tribe’’),
approved on May 12, 2004 and the
Tribe’s inherent sovereign authority.
Article III—Purpose
The purpose of this Liquor Ordinance
is to regulate and to control the
possession and sale of liquor on lands
within the jurisdiction of the
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Habematolel Pomo of Upper Lake. The
enactment of a tribal ordinance
governing liquor possession and sale on
Tribal Lands will increase the ability of
the Tribal Government to control liquor
distribution and possession, and at the
same time will provide an important
source of revenue for the continued
operation and strengthening of the tribal
government and the delivery of Tribal
Government services.
Article IV—Tribal Jurisdiction
This Ordinance applies to all lands in
which the Habematolel Pomo Of Upper
Lake holds an ownership interest and
which are defined as Indian country
under 18 U.S.C. 1151. At the time of
enacting this Ordinance, the
Habematolel Pomo of Upper Lake do not
have an ownership interest in any lands
defined by 18 U.S.C.1154(c) as feepatented land in a non-Indian
community or rights-of-ways which run
through Tribal lands. This Ordinance is
in conformity with California State
alcohol laws as required by 18 U.S.C.
1161.
Article V—Definitions
As used in this Liquor Ordinance, the
following words shall have the
following meanings unless the context
clearly requires otherwise.
A. ‘‘Alcohol’’ means that substance
known as ethyl alcohol, hydrated oxide
of ethyl, or spirit of wine which is
commonly produced by the
fermentation or distillation of grain,
starch, molasses, or sugar, or other
substances including all dilutions of
this substance.
B. ‘‘Alcoholic Beverage’’ is
synonymous with the term ‘‘Liquor’’ as
defined in Letter F of this Article.
C. ‘‘Bar’’ means any establishment
with special space and accommodations
for sale by the glass and for
consumption on the premises of any
liquor or alcoholic beverage, as herein
defined.
D. ‘‘Beer’’ means any alcoholic
beverage obtained by the fermentation
or any infusion or decoction of barley,
malt, hops, or any other similar product,
or any combination thereof in water,
and includes ale, porter, brown, stout,
lager beer, small beer, and strong beer
but does not include sake, known as
Japanese rice wine.
E. ‘‘Executive Council’’ as used herein
means the body authorized by the
Habematolel Pomo of Upper Lake
Constitution to promulgate all tribal
ordinances and regulations.
E. ‘‘General Membership’’ means the
general membership of the Habematolel
Pomo of Upper Lake which is composed
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of the voting membership of the Tribe
as a whole.
F. ‘‘Liquor’’ includes the four varieties
of liquor herein defined (Alcohol,
Spirits, Wine, and Beer), and all
fermented spirituous, vinous, or malt
liquor or combination thereof, and
mixed liquor, or otherwise intoxicating;
and every liquid or solid or semisolid or
other substance, patented or not,
containing alcohol, spirits, wine or beer,
and all drinks or drinkable liquids and
all preparations or mixtures capable of
human consumption and any liquid,
semisolid, solid, or other substance,
which contain more than one percent of
alcohol by weight shall be conclusively
deemed to be intoxicating.
G. ‘‘Liquor License’’ the license
authorized to be issued to those who
have met the qualifications of this
Ordinance at Article VIII, which grants
a licensee the ability to sell Alcohol or
Liquor on Tribal Lands.
H. ‘‘Liquor Store’’ means any store at
which liquor is sold and, for the
purposes of this Liquor Ordinance,
includes stores only a portion of which
are devoted to sale of liquor or beer.
I. ‘‘Malt Liquor’’ means Beer, strong
beer, ale, stout, and porter.
J. ‘‘Package’’ means any container or
receptacle used for holding liquor.
K. ‘‘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
establishment; public buildings; public
meeting halls; lobbies, halls and dining
rooms of hotels, restaurants, theater,
gaming facilities, entertainment centers,
store 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 of
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. For the purpose of this Liquor
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.
L. ‘‘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 wine by any
person to any person.
M. ‘‘Spirits’’ means any beverage
which contains alcohol obtained by
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distillation including wines exceeding
seventeen percent of alcohol by weight.
N. ‘‘Tribe’’ means the Habematolel
Pomo of Upper Lake.
O. ‘‘Tribal Designee’’ is a person
designated by the majority of the
Executive Council to fulfill a specific
task pursuant to this Liquor Ordinance.
P. ‘‘Tribal Land’’ means any land held
in trust by the United States for the
Tribe as a whole including any such
land that is leased by the Tribe in trust
or lands that may be leased by the Tribe
to another party.
Q. ‘‘Liquor Trust Account’’ means the
account designated by the Executive
Council for deposit of proceeds from
any tax or fee levied by the Executive
Council and relating to the sale of
alcoholic beverages.
R. ‘‘Taxpayer’’ is the licensee who is
obligated to pay taxes from the sale of
alcoholic beverages pursuant to this
Liquor Ordinance.
S. ‘‘Trust Agent’’ means the Executive
Council (see ‘‘Executive Council’’) or
their designee.
T. ‘‘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 of alcohol by weight, including
sweet wines fortified with wine spirits
such as port, sherry, muscatel and
angelica, not exceeding seventeen
percent of alcohol by weight.
Article VI—Powers of Enforcement
Section 1. Powers. The Executive
Council, in furtherance of this Liquor
Ordinance, shall have the following
powers and duties:
a. To publish and enforce the rules
and regulations governing the sale,
manufacture, and distribution of
Alcoholic Beverages on Tribal Lands.
b. To employ managers, accountants,
security personnel, inspectors, and such
other persons as shall be reasonably
necessary to allow the Executive
Council to perform its functions; all
such employees shall be Tribal
employees;
c. To issue licenses permitting the
sale or manufacture or distribution of
liquor on Tribal Lands;
d. To hold hearings on violations of
this Liquor Ordinance or for the
issuance or revocation of licenses
hereunder pursuant to Section VI;
e. To bring suit in the appropriate
court to enforce this Liquor Ordinance
as necessary;
f. To determine and seek damages for
violation of this Liquor Ordinance;
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g. To make such reports to the General
Membership; as may be required herein;
h. To collect taxes and fees levied or
set by the Executive Council, and to
keep accurate records, books and
accounts; and
i. To exercise such other powers as
are necessary and appropriate to fulfill
the purposes of this Ordinance and as
may be defined in the Tribe’s
Constitution, Article X, Sections 1 and
2.
Section 2. Limitation on Powers. In
the exercise of its powers and duties
under this Liquor Ordinance, the
individual members of the Executive
Council shall not accept for personal
gain any gratuity, compensation or other
items of value from any liquor
wholesaler, retailer, vendor or
distributor or from any licensee.
Section 3. Inspection Rights. The
premises on which Liquor is sold or
distributed shall be open for inspection
by the Executive Council or its designee
at all reasonable times, which includes
the hours the business is open to the
public, for the purposes of ascertaining
whether the rules and regulations of this
Liquor Ordinance are being followed.
Article VII—Sales of Liquor
Section 1. Tribal Liquor License
Required; Tribally Owned Businesses.
No sales of Alcoholic Beverages shall be
made on Tribal Lands, except at a
tribally licensed or tribally owned
business. Nothing in this section shall
prohibit a tribal licensee or the Tribe
from purchasing liquor from other
sources for resale, or the delivery to the
Tribe for a tribal licensee of liquor
purchased from other sources for resale
on Tribal Lands.
Section 2. Sale only on Tribal Land.
All Liquor sales shall be on Tribal
Lands.
Section 3. Sales for Cash. All Liquor
sales within Tribal Lands shall be on a
cash only basis and no credit shall be
extended to any person, organization, or
entity, except that this provision does
not prevent the use of ATM cards, debit
cards, or major credit cards such as
MasterCard, Visa, American Express,
etc. as a means of securing payment for
the sale.
Section 4. Sale for Personal
Consumption. All sales shall be for the
personal use and consumption of the
purchaser. Resale of any Alcoholic
Beverages purchased on Tribal Lands is
prohibited. Any person who is not
licensed pursuant to this Liquor
Ordinance who purchases an Alcoholic
Beverage on Tribal Lands and sells it,
whether in the original container or not,
shall be in violation of this Liquor
Ordinance and shall be subjected to
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paying a fine and/or damages to the
Tribe as set forth herein.
Article VIII—Licensing
Section 1. Tribal Liquor License
Requirements. No Tribal license shall be
issued under this Liquor Ordinance
except upon a sworn application filed
with the Executive Council or its
designee containing a full and complete
showing of the following:
a. Satisfactory proof that the applicant
is or will be duly licensed by the State
of California to sell alcoholic beverages;
b. Satisfactory proof that the applicant
is of good moral character and
reputation and that the applicant is
financially responsible;
c. The description of the premises in
which the alcoholic beverages are to be
sold and proof that the applicant is the
owner of such premises or the lessee of
such premises for at least the term of the
license;
d. Agreement by the applicant to
accept and abide by all conditions of the
Tribal license;
e. Payment of a fee established from
time to time by the Executive Council.
Said fee is established initially at
$250.00 annually but can be changed by
Executive Council Resolution at any
time;
f. Satisfactory proof that neither the
applicant, nor the applicant’s spouse,
nor any principal owner, officer,
shareholder, or director of the applicant,
if an entity, has ever been convicted of
a felony or a crime of moral turpitude
as defined by the laws of the State of
California;
g. Satisfactory proof that notice of the
application has been posted in a
prominent, noticeable place on the
premises where alcoholic beverages are
to be sold for at least thirty (30) days
prior to consideration by the Executive
Council and has been published at least
twice in a local newspaper serving the
community that may be affected by the
license as the Executive Council may
authorize. The notice shall state the
date, time, and place when the
application shall be considered by the
Executive Council pursuant to Section 2
of this ordinance.
Section 2. Hearing on Application for
Tribal Liquor License. All applications
for a Tribal liquor license shall be
considered by the Executive Council in
open session at which the applicant,
his, her or its attorney and/or
representative, and any person
protesting the application shall have the
right to be present, and to offer sworn
oral or documentary evidence relevant
to the application. After the hearing, the
Executive Council, by vote, shall
determine whether to grant or deny the
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application based on: (1) The
requirements of Section 1 of this Liquor
Ordinance; and (2) whether the
Executive Council, in its discretion,
determines that granting the license is
in the best interest of the Tribe. In the
event that the applicant is a member of
the Executive Council, or the applicant
is a member of the immediate family of
an Executive Council member, such
related Executive Council member shall
not vote on the application or
participate in the application hearing as
an Executive Council member.
Section 3. Temporary Permits. The
Executive Council or their designee may
grant a temporary permit for the sale of
Liquor for a period not to exceed three
(3) days to any person applying to the
same in connection with a Tribal or
community activity, provided that the
conditions prescribed in Section 4 of
this Liquor Ordinance shall be observed
by the person holding the temporary
permit. Each permit issued shall specify
the types of intoxicating beverages to be
sold. Further, a fee of $50.00 will be
assessed on temporary permits and may
be waived at the discretion of the
Executive Council (i.e. charitable
events, fundraisers, etc.).
Section 4. Conditions of a Tribal
Liquor License. Any Tribal liquor
license issued under this Liquor
Ordinance shall be subject to such
reasonable conditions as the Executive
Council shall enact including but not
limited to the following:
a. The license shall be for an initial
term not to exceed one (1) year and may
be extended up to 5 years at the
discretion of the Executive Council.
b. The licensee shall at all times
maintain an orderly, clean, and neat
establishment, both inside and outside
the licensed premises.
c. The licensed premises shall be
subject to patrol by Tribal law
enforcement personnel and such other
law enforcement officials as may be
authorized under Federal, State, or
Tribal law.
d. The licensed premises shall be
open to inspection by duly authorized
Tribal Designee at all times during the
regular business hours.
e. Subject to the provisions of
subsection ‘‘g’’ of this section, no Liquor
or intoxicating beverages shall be sold,
served, disposed of, delivered, or given
to any person, or consumed on the
licensed premises except in conformity
with the hours and days prescribed by
the laws of the State of California, and
in accordance with the hours enacted by
the Executive Council, provided that the
licensed premises shall not operate or
open earlier, or operate or close later,
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than is permitted by the laws of the
State of California.
f. No Liquor shall be sold within 200
feet of a polling place on Tribal, State
or Federal, Election days, or when a
referendum is held by the Tribe, and
including special days of observation as
designated by the Executive Council.
g. All acts and transactions under
authority of the Tribal Liquor License
shall be in conformity with the laws of
the State of California, with this Liquor
Ordinance, and with any Tribal liquor
license issued pursuant to this Liquor
Ordinance.
h. No person under the age permitted
under the laws of the State of California
shall be sold, served, delivered, given,
or allowed to consume Alcoholic
Beverages in the licensed establishment
or area.
i. There shall be no discrimination in
the operations under the Tribal Liquor
License by reason of race, color, gender,
creed, religion or sexual preference.
Section 5. License Not a Property
Right. Notwithstanding any other
provision of this Liquor Ordinance, a
Tribal liquor license is a mere permit for
a fixed duration of time. A Tribal liquor
license shall not be deemed a property
right or vested right of any kind, nor
shall the granting of a Tribal liquor
license give rise to a presumption of
legal entitlement to a license/permit in
a subsequent time period.
Section 6. Assignment or Transfer. No
Tribal license issued under this Liquor
Ordinance shall be assigned or
transferred without the prior written
approval of the Executive Council
expressed by formal, written resolution
and/or transfer order.
Article IV—Rules, Regulations, and
Enforcement
Section 1. Sale or Possession with
Intent to Sell Without a Permit. Any
person who shall sell or offer for sale or
distribute in any manner, any Liquor in
violation of this Liquor Ordinance, or
who shall operate or shall have Liquor
in his possession with intent to sell or
distribute without a license or permit,
shall be in violation of this Liquor
Ordinance.
Section 2. Purchases from Other than
Licensed or Allowed Facilities. Any
person who, while on Tribal lands, buys
Liquor from any person other than at a
properly licensed or allowed facility
shall be in violation of this Liquor
Ordinance.
Section 3. Sales to Persons under the
Influence of Liquor. Selling any
Alcoholic Beverage or Liquor to any
obviously intoxicated person is a
violation of this Ordinance.
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Section 4. Consumption or Possession
of Liquor by Persons Under 21 Years of
Age. No person under the age of 21
years shall consume, acquire or have in
his possession any Alcoholic Beverage.
No person shall permit any other person
under the age of 21 to consume Liquor
on his premises or any premises under
his control except in those situations set
out in this section. Any person violating
this section shall be in violation of a
separate violation of this Liquor
Ordinance for each and every drink so
consumed.
Section 5. Sales of Liquor to Persons
Under 21 Years of Age. Any person who
shall sell or provide liquor to any
person under the age of 21 years shall
be in violation of this Liquor Ordinance
for each sale or drink provided.
Section 6. Transfer of Identification to
Minor. Any person who transfers in any
manner an identification of age to a
minor for the purpose of permitting
such minor to obtain liquor shall be in
violation of this Ordinance; provided
that corroborative testimony of witness
other than the minor shall be a
requirement of finding a violation of
this Liquor Ordinance.
Section 7. Use of False or Altered
Identification. Any person who attempts
to purchase an Alcoholic Beverage
through the use of a false or altered
identification shall be in violation of
this Liquor Ordinance.
Section 8. Acceptable Identification.
Where there may be a question of a
person’s right to purchase liquor by
reason of his or her age, such person
shall be required to present any one of
the following forms of identification
which shows his or her correct age and
bears his or her signature and
photograph: (1) A driver’s license of any
state or identification card issued by any
state department of motor vehicles; (2)
United States active duty military; (3) a
passport, or Habematolel Pomo of Upper
Lake Tribal I.D. with photo.
Section 9. Violations of this Liquor
Ordinance. Any person in violation of
this Ordinance shall be liable to pay the
Tribe a civil fine not to exceed $500 per
violation as civil damages to defray the
Tribe’s cost of enforcement of this
Liquor Ordinance. In addition to any
penalties so imposed, any license or
permit issued hereunder may be
suspended or canceled by the Executive
Council for the violation of any of the
provisions of this Liquor Ordinance, or
of the Tribal license or permit, upon
hearing before the Executive Council
after 10 days notice to the licensee. The
decision of the Executive Council shall
be final and no appeal there from is
allowed. The Executive Council shall
grant all persons in any hearing
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regarding violations, penalties, or
license suspensions under this
Ordinance all the rights and due process
granted by the Indian Civil Rights Act,
25 U.S.C. 1301, et seq. Notice of a
Executive Council hearing regarding an
alleged violation of this Ordinance shall
be given to the affected individual(s) or
entities at least 10 days in advance of
the hearing. The notice will be delivered
in person or by certified mail with the
Executive Council retaining proof of
service. The notice will set out the right
of the alleged violator to be represented
by Counsel retained by the alleged
violator, the right to speak and to
present witnesses and to cross examine
any witnesses against them.
Section 10. Possession of Liquor
Contrary to This Liquor Ordinance.
Alcoholic Beverages which are
possessed contrary to the terms of this
Liquor Ordinance are declared to be
contraband. Any Tribal agent,
employee, or officer who is authorized
by the Executive Council to enforce this
section shall have the authority to, and
shall, seize all contraband and preserve
it for evidentiary purposes for use by the
Executive Council or Federal or State
law enforcement agencies.
Section 11. Disposition of Seized
Contraband. Any officer seizing
contraband shall preserve the
contraband in accordance with the
appropriate California law code. Upon
being found in violation of this Liquor
Ordinance by the Executive Council, the
party shall forfeit all right, title and
interest in the items seized which shall
become the property of the Tribe.
Article X—Taxes
Section 1. Sales Tax. There is hereby
levied and shall be collected a tax on
each sale of Alcoholic Beverages on
Tribal Lands in the amount of one
percent (1%) of the amount actually
collected. The tax imposed by this
section shall apply to all retail sales of
liquor on Tribal Lands and shall be in
addition to any tax imposed on such
liquor sales by the State of California.
Section 2. Payment of Taxes to Tribe.
All taxes from the sale of Alcoholic
Beverages on Tribal Lands shall be paid
to the Trust Agent of the Tribe.
Section 3. Taxes Due. All taxes from
the sale of Alcoholic Beverages on
Tribal Lands are due and payable to the
Trust Agent of the Tribe within thirty
(30) days of the end of the calendar
quarter for which the taxes are due.
Section 4. Reports. Along with
payment of the taxes imposed herein,
the Taxpayer shall submit a written
accounting for the quarter of all income
from the sale or distribution of alcoholic
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beverages as well as for the taxes
collected.
Section 5. Audit. As a condition of
obtaining a license, the licensee must
agree to the review or audit of its books
and records relating to the sale of
alcoholic beverages on Tribal Lands.
Said review or audit may be done
annually or as designated by the
Executive Council through its agents or
employees whenever, in the opinion of
the Executive Council, such a review or
audit is necessary to verify the accuracy
of reports as defined in Section 4 of this
Article.
Article XI—Profits
Section 1. Disposition of Proceeds.
The gross proceeds collected by the
Executive Council from all licensing
provided under this Liquor Ordinance,
or the imposition of civil penalties for
violating this Ordinance, or from the
taxation of the sales of Alcoholic
Beverages on Tribal Lands, shall be
distributed as follows:
a. For the payment of all necessary
personnel, administrative costs, and
legal fees for the administration and
enforcement of this Liquor Ordinance
and its activities.
b. The remainder shall be turned over
to the Liquor Trust Account of the
Tribe.
Article XII—Severability and
Miscellaneous
Section 1. Severability. If any
provision or application of this Liquor
Ordinance is determined upon review
by a court of competent jurisdiction to
be invalid, such adjudication shall not
be held to render ineffectual the
remaining portions of this Ordinance or
to render such provisions inapplicable
to other persons or circumstances.
Section 2. Prior Enactments. Any and
all prior ordinances, resolutions or
enactments of the Executive Council
which are inconsistent with the
provisions of this Liquor Ordinance are
hereby repealed.
Section 3. Conformance with Tribal,
State and Federal Law. This Ordinance
conforms to all Tribal law and
governing documents such as the
Constitution and By-Laws. All
provisions and transactions under this
Ordinance shall be in conformity with
California State law regarding alcohol to
the extent required by 18 U.S.C. 1161
and with all Federal laws regarding
alcohol in Indian country.
Section 4. Enforcement. All actions
brought by the Executive Council to
enforce the provisions of this Ordinance
shall be filed in the Tribal Court of the
Habematolel Pomo of Upper Lake. In the
absence of a tribal court, said actions
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Federal Register / Vol. 77, No. 102 / Friday, May 25, 2012 / Notices
shall be filed in Federal Court in the
Northern District of California and be
appealable in the Federal Court system.
If the Federal Court should determine
that it lacks jurisdiction over said
action, it shall be filed in the California
State Court in County of Lake with
subject matter jurisdiction and venue
over the action. The first court system
to have jurisdiction over an enforcement
action which may be brought in Tribal,
Federal, or State Court, shall have
exclusive jurisdiction over such actions.
Section 5. Effective Date. This
Ordinance becomes effective after the
Secretary of the Interior certifies the
Ordinance and publishes it in the
Federal Register.
Article XIII—Amendment
Section 1. Amendment or Repeal.
This Ordinance may be amended or
repealed by a majority vote of the
Executive Council at a duly called
meeting. Amendments of this Ordinance
shall become effective after the
Secretary of the Interior certifies and
publishes the Amendments in the
Federal Register.
Management (BLM) Wyoming State
Office, 5353 Yellowstone Road, P.O.
Box 1828, Cheyenne, Wyoming 82003.
Sealed bids must be submitted to the
Cashier, BLM Wyoming State Office, at
the address given above.
FOR FURTHER INFORMATION CONTACT:
Mavis Love, Land Law Examiner, or
Kathy Muller Ogle, Coal Coordinator, at
307–775–6258, and 307–775–6206,
respectively.
This coal
lease sale is being held in response to
a lease by application (LBA) filed by
BTU Western Resources, Inc., Gillette,
Wyoming. The coal resource to be
offered consists of all reserves
recoverable by surface mining methods
in the following-described lands located
approximately 5 to 7 miles north of the
Campbell/Converse county line,
adjacent and up to 7 miles east of the
main line railroad, and adjacent to the
western and northern lease boundary of
the North Antelope Rochelle Mine.
SUPPLEMENTARY INFORMATION:
Bureau of Land Management,
Interior.
ACTION: Notice.
Sixth Principal Meridian
T. 42 N., R. 70 W.,
Sec. 19, lots 9 through 20 inclusive;
Sec. 20, lots 5 through 16 inclusive;
Sec. 21, lots 1 through 16 inclusive;
Sec. 22, lots 3 through 6 inclusive, and lots
9 through 16 inclusive;
Sec. 26, lots 3 through 6 inclusive, and lots
9 through 16 inclusive;
Sec. 27, lots 1 through 16 inclusive;
Sec. 28, lots 1 through 4 inclusive;
Sec. 29, lots 1 through 4 inclusive;
Sec. 30, lots 5 through 8 inclusive;
T. 42 N., R. 71 W.,
Sec. 22, lots 20, 21 and 24;
Sec. 23, lots 5 through 16 inclusive;
Sec. 24, lots 5 through 16 inclusive;
Sec. 25, lots 1 through 4 inclusive;
Sec. 26, lots 1 through 6 inclusive, and lots
11 through 14 inclusive;
Sec. 27, lot 9 and lots 15 through 17
inclusive, and lots 20, 22, 23, 25, 28, and
30;
Sec. 34, lots 1 through 12 inclusive; and
Sec. 35, lots 3 through 6 inclusive, and lots
11 through 14 inclusive.
Containing 6,364.28 acres, more or less, in
Campbell County, Wyoming.
Notice is hereby given that
certain coal resources in the North
Porcupine Coal Tract described below
in Campbell County, Wyoming, will be
offered for competitive lease by sealed
bid in accordance with the provisions of
the Mineral Leasing Act of 1920, as
amended.
DATES: The lease sale will be held at 10
a.m. on Thursday, June 28, 2012. Sealed
bids must be submitted on or before 4
p.m. on Wednesday, June 27, 2012.
ADDRESSES: The lease sale will be held
in the First Floor Conference Room
(Room 107), of the Bureau of Land
The LBA tract is adjacent to Federal
leases to the east and south as well as
a State of Wyoming lease to the north,
all controlled by the North Antelope
Rochelle Mine. It is also adjacent to a
Federal lease to the east, which is part
of Peabody Energy Corporation’s School
Creek Mine. It is adjacent to additional
unleased Federal coal to the west and
north.
Most of the acreage offered has been
determined to be suitable for mining
except for the mainline railroad right-ofway along the western boundary of the
LBA. Features such as roads, utilities,
and pipelines can be moved to permit
Article XIV—Sovereign Immunity
Section 1. Nothing contained in this
Liquor Ordinance is intended to nor
does in anyway limit, alter, restrict, or
expressly or unequivocally waive the
Tribe’s sovereign immunity from unconsented suit or action.
[FR Doc. 2012–12843 Filed 5–24–12; 8:45 am]
BILLING CODE 4310–4J–P
DEPARTMENT OF THE INTERIOR
Bureau of Land Management
[LLWY922000–L57000000.BX0000;
WYW173408]
Notice of Competitive Coal Lease Sale,
Wyoming
AGENCY:
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SUMMARY:
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coal recovery. In addition, numerous
oil, gas, and coal bed natural gas wells
are located on the LBA. The estimate of
the bonus value of the coal lease will
include consideration of the future
production from these wells. An
economic analysis of this future income
stream will consider reasonable
compensation to the gas lessee for lost
production of the natural gas when the
wells are bought out by the coal lessee.
The majority of the surface estate of the
tract is within the Thunder Basin
National Grasslands and managed by
the U.S. Forest Service. The remainder
of the surface estate is owned by various
Peabody Energy Corporation
subsidiaries and a small portion is
owned by the State of Wyoming.
The tract contains surface mineable
coal reserves in the Wyodak-Anderson
coal zone currently being recovered in
the adjacent, existing mine. The
Wyodak-Anderson is the only mineable
seam on the tract. The thickness ranges
from about 69 feet in the east to about
96 feet in the west. Overburden depths
range from about 196 to 430 feet thick.
The tract contains an estimated
721,154,828 tons of mineable coal. This
estimate of mineable reserves includes
the seam mentioned above but does not
include any tonnage from localized
seams or splits containing less than 5
feet of coal. It does not include the
adjacent State of Wyoming coal or the
adjacent School Creek Mine Federal
lease, although these reserves could
possibly be recovered in conjunction
with the LBA. It also excludes coal
within and along the railroad right-ofway as required by typical mining
practices. The total mineable stripping
ratio of the coal in bank cubic yards per
ton is approximately 4:1. Potential
bidders for the LBA should consider the
recovery rate expected from thick seam
mining.
The North Porcupine LBA coal is
ranked as subbituminous C. The overall
average quality on an as-received basis
is 8,892 British Thermal Units per
pound containing approximately 0.20
percent sulfur. These quality averages
place the coal reserves near the high end
of the range of coal quality currently
being mined in the Wyoming portion of
the Powder River Basin.
The tract will be leased to the
qualified bidder of the highest cash
amount provided that the high bid
meets or exceeds the BLM’s estimate of
the fair market value (FMV) of the tract.
The minimum bid for the tract is $100
per acre or fraction thereof. No bid that
is less than $100 per acre, or fraction
thereof, will be considered. The bids
should be sent by certified mail, return
receipt requested, or be hand delivered.
E:\FR\FM\25MYN1.SGM
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]]>Agencies
[Federal Register Volume 77, Number 102 (Friday, May 25, 2012)]
[Notices]
[Pages 31381-31385]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12843]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Habematolel Pomo of Upper Lake--Tribal Liquor Ordinance No. 2008-
01
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: This notice publishes the Tribal Liquor Ordinance No. 2008-01
of the Habematolel Pomo of Upper Lake. The Ordinance regulates and
controls the possession, sale and consumption of liquor within the
Indian Country of the Habematolel Pomo of Upper Lake. The land is trust
land and this Ordinance allows for the possession and sale of alcoholic
beverages within the jurisdiction of the Habematolel Pomo of Upper
Lake. This Ordinance will increase the ability of the tribal government
to control the distribution and possession of liquor within their
jurisdiction, and at the same time will provide an important source of
revenue, the strengthening of the tribal government and the delivery of
tribal services.
DATES: Effective Date: This Amendment is effective May 25, 2012.
FOR FURTHER INFORMATION CONTACT: Sophia Torres, Tribal Government
Specialist, Pacific Regional Office, Bureau of Indian Affairs, 2800
Cottage Way, Sacramento, CA 95825, Phone: (916)978-6073; Fax: (916)916-
6099: or De Springer, Office of Indian Services, Bureau of Indian
Affairs, 1849 C Street NW., MS-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 liquor ordinances for the purpose of regulating liquor
transactions in Indian country. The Habematolel Pomo of Upper Lake
adopted this Ordinance by Resolution No. 04-12-03 on April 16, 2012.
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 Habermatolel Pomo of Upper Lake Executive
Council duly adopted the Tribal Liquor Ordinance No 2008-01 of the
Habematolel Pomo of Upper Lake by Resolution No. 04-12-03 on April 16,
2012.
Dated: May 22, 2012.
Donald E. Laverdure,
Acting Assistant Secretary--Indian Affairs.
The Tribal Liquor Ordinance No 2008-01 of the Habematolel Pomo of
Upper Lake shall read as follows:
Article I--Title
This Ordinance shall be known as the ``Liquor Ordinance of the
Habematolel Pomo of Upper Lake.''
Article II--Authority
This Liquor Ordinance is enacted pursuant to the Act of August 15,
1953 (Pub. L. 83-277, and 67 Stat. 586, 18 U.S.C. section 1161), as
interpreted by Rice v. Renner, 463 U.S. 713 (1983) and the Constitution
of the Habematolel Pomo of Upper Lake, a federally recognized Indian
tribe (``Tribe''), approved on May 12, 2004 and the Tribe's inherent
sovereign authority.
Article III--Purpose
The purpose of this Liquor Ordinance is to regulate and to control
the possession and sale of liquor on lands within the jurisdiction of
the Habematolel Pomo of Upper Lake. The enactment of a tribal ordinance
governing liquor possession and sale on Tribal Lands will increase the
ability of the Tribal Government to control liquor distribution and
possession, and at the same time will provide an important source of
revenue for the continued operation and strengthening of the tribal
government and the delivery of Tribal Government services.
Article IV--Tribal Jurisdiction
This Ordinance applies to all lands in which the Habematolel Pomo
Of Upper Lake holds an ownership interest and which are defined as
Indian country under 18 U.S.C. 1151. At the time of enacting this
Ordinance, the Habematolel Pomo of Upper Lake do not have an ownership
interest in any lands defined by 18 U.S.C.1154(c) as fee-patented land
in a non-Indian community or rights-of-ways which run through Tribal
lands. This Ordinance is in conformity with California State alcohol
laws as required by 18 U.S.C. 1161.
Article V--Definitions
As used in this Liquor Ordinance, the following words shall have
the following meanings unless the context clearly requires otherwise.
A. ``Alcohol'' means that substance known as ethyl alcohol,
hydrated oxide of ethyl, or spirit of wine which is commonly produced
by the fermentation or distillation of grain, starch, molasses, or
sugar, or other substances including all dilutions of this substance.
B. ``Alcoholic Beverage'' is synonymous with the term ``Liquor'' as
defined in Letter F of this Article.
C. ``Bar'' means any establishment with special space and
accommodations for sale by the glass and for consumption on the
premises of any liquor or alcoholic beverage, as herein defined.
D. ``Beer'' means any alcoholic beverage obtained by the
fermentation or any infusion or decoction of barley, malt, hops, or any
other similar product, or any combination thereof in water, and
includes ale, porter, brown, stout, lager beer, small beer, and strong
beer but does not include sake, known as Japanese rice wine.
E. ``Executive Council'' as used herein means the body authorized
by the Habematolel Pomo of Upper Lake Constitution to promulgate all
tribal ordinances and regulations.
E. ``General Membership'' means the general membership of the
Habematolel Pomo of Upper Lake which is composed
[[Page 31382]]
of the voting membership of the Tribe as a whole.
F. ``Liquor'' includes the four varieties of liquor herein defined
(Alcohol, Spirits, Wine, and Beer), and all fermented spirituous,
vinous, or malt liquor or combination thereof, and mixed liquor, or
otherwise intoxicating; and every liquid or solid or semisolid or other
substance, patented or not, containing alcohol, spirits, wine or beer,
and all drinks or drinkable liquids and all preparations or mixtures
capable of human consumption and any liquid, semisolid, solid, or other
substance, which contain more than one percent of alcohol by weight
shall be conclusively deemed to be intoxicating.
G. ``Liquor License'' the license authorized to be issued to those
who have met the qualifications of this Ordinance at Article VIII,
which grants a licensee the ability to sell Alcohol or Liquor on Tribal
Lands.
H. ``Liquor Store'' means any store at which liquor is sold and,
for the purposes of this Liquor Ordinance, includes stores only a
portion of which are devoted to sale of liquor or beer.
I. ``Malt Liquor'' means Beer, strong beer, ale, stout, and porter.
J. ``Package'' means any container or receptacle used for holding
liquor.
K. ``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
establishment; public buildings; public meeting halls; lobbies, halls
and dining rooms of hotels, restaurants, theater, gaming facilities,
entertainment centers, store 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 of 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. For the purpose of this Liquor
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.
L. ``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 wine by any person to any person.
M. ``Spirits'' means any beverage which contains alcohol obtained
by distillation including wines exceeding seventeen percent of alcohol
by weight.
N. ``Tribe'' means the Habematolel Pomo of Upper Lake.
O. ``Tribal Designee'' is a person designated by the majority of
the Executive Council to fulfill a specific task pursuant to this
Liquor Ordinance.
P. ``Tribal Land'' means any land held in trust by the United
States for the Tribe as a whole including any such land that is leased
by the Tribe in trust or lands that may be leased by the Tribe to
another party.
Q. ``Liquor Trust Account'' means the account designated by the
Executive Council for deposit of proceeds from any tax or fee levied by
the Executive Council and relating to the sale of alcoholic beverages.
R. ``Taxpayer'' is the licensee who is obligated to pay taxes from
the sale of alcoholic beverages pursuant to this Liquor Ordinance.
S. ``Trust Agent'' means the Executive Council (see ``Executive
Council'') or their designee.
T. ``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 of alcohol by weight, including sweet wines
fortified with wine spirits such as port, sherry, muscatel and
angelica, not exceeding seventeen percent of alcohol by weight.
Article VI--Powers of Enforcement
Section 1. Powers. The Executive Council, in furtherance of this
Liquor Ordinance, shall have the following powers and duties:
a. To publish and enforce the rules and regulations governing the
sale, manufacture, and distribution of Alcoholic Beverages on Tribal
Lands.
b. To employ managers, accountants, security personnel, inspectors,
and such other persons as shall be reasonably necessary to allow the
Executive Council to perform its functions; all such employees shall be
Tribal employees;
c. To issue licenses permitting the sale or manufacture or
distribution of liquor on Tribal Lands;
d. To hold hearings on violations of this Liquor Ordinance or for
the issuance or revocation of licenses hereunder pursuant to Section
VI;
e. To bring suit in the appropriate court to enforce this Liquor
Ordinance as necessary;
f. To determine and seek damages for violation of this Liquor
Ordinance;
g. To make such reports to the General Membership; as may be
required herein;
h. To collect taxes and fees levied or set by the Executive
Council, and to keep accurate records, books and accounts; and
i. To exercise such other powers as are necessary and appropriate
to fulfill the purposes of this Ordinance and as may be defined in the
Tribe's Constitution, Article X, Sections 1 and 2.
Section 2. Limitation on Powers. In the exercise of its powers and
duties under this Liquor Ordinance, the individual members of the
Executive Council shall not accept for personal gain any gratuity,
compensation or other items of value from any liquor wholesaler,
retailer, vendor or distributor or from any licensee.
Section 3. Inspection Rights. The premises on which Liquor is sold
or distributed shall be open for inspection by the Executive Council or
its designee at all reasonable times, which includes the hours the
business is open to the public, for the purposes of ascertaining
whether the rules and regulations of this Liquor Ordinance are being
followed.
Article VII--Sales of Liquor
Section 1. Tribal Liquor License Required; Tribally Owned
Businesses. No sales of Alcoholic Beverages shall be made on Tribal
Lands, except at a tribally licensed or tribally owned business.
Nothing in this section shall prohibit a tribal licensee or the Tribe
from purchasing liquor from other sources for resale, or the delivery
to the Tribe for a tribal licensee of liquor purchased from other
sources for resale on Tribal Lands.
Section 2. Sale only on Tribal Land. All Liquor sales shall be on
Tribal Lands.
Section 3. Sales for Cash. All Liquor sales within Tribal Lands
shall be on a cash only basis and no credit shall be extended to any
person, organization, or entity, except that this provision does not
prevent the use of ATM cards, debit cards, or major credit cards such
as MasterCard, Visa, American Express, etc. as a means of securing
payment for the sale.
Section 4. Sale for Personal Consumption. All sales shall be for
the personal use and consumption of the purchaser. Resale of any
Alcoholic Beverages purchased on Tribal Lands is prohibited. Any person
who is not licensed pursuant to this Liquor Ordinance who purchases an
Alcoholic Beverage on Tribal Lands and sells it, whether in the
original container or not, shall be in violation of this Liquor
Ordinance and shall be subjected to
[[Page 31383]]
paying a fine and/or damages to the Tribe as set forth herein.
Article VIII--Licensing
Section 1. Tribal Liquor License Requirements. No Tribal license
shall be issued under this Liquor Ordinance except upon a sworn
application filed with the Executive Council or its designee containing
a full and complete showing of the following:
a. Satisfactory proof that the applicant is or will be duly
licensed by the State of California to sell alcoholic beverages;
b. Satisfactory proof that the applicant is of good moral character
and reputation and that the applicant is financially responsible;
c. The description of the premises in which the alcoholic beverages
are to be sold and proof that the applicant is the owner of such
premises or the lessee of such premises for at least the term of the
license;
d. Agreement by the applicant to accept and abide by all conditions
of the Tribal license;
e. Payment of a fee established from time to time by the Executive
Council. Said fee is established initially at $250.00 annually but can
be changed by Executive Council Resolution at any time;
f. Satisfactory proof that neither the applicant, nor the
applicant's spouse, nor any principal owner, officer, shareholder, or
director of the applicant, if an entity, has ever been convicted of a
felony or a crime of moral turpitude as defined by the laws of the
State of California;
g. Satisfactory proof that notice of the application has been
posted in a prominent, noticeable place on the premises where alcoholic
beverages are to be sold for at least thirty (30) days prior to
consideration by the Executive Council and has been published at least
twice in a local newspaper serving the community that may be affected
by the license as the Executive Council may authorize. The notice shall
state the date, time, and place when the application shall be
considered by the Executive Council pursuant to Section 2 of this
ordinance.
Section 2. Hearing on Application for Tribal Liquor License. All
applications for a Tribal liquor license shall be considered by the
Executive Council in open session at which the applicant, his, her or
its attorney and/or representative, and any person protesting the
application shall have the right to be present, and to offer sworn oral
or documentary evidence relevant to the application. After the hearing,
the Executive Council, by vote, shall determine whether to grant or
deny the application based on: (1) The requirements of Section 1 of
this Liquor Ordinance; and (2) whether the Executive Council, in its
discretion, determines that granting the license is in the best
interest of the Tribe. In the event that the applicant is a member of
the Executive Council, or the applicant is a member of the immediate
family of an Executive Council member, such related Executive Council
member shall not vote on the application or participate in the
application hearing as an Executive Council member.
Section 3. Temporary Permits. The Executive Council or their
designee may grant a temporary permit for the sale of Liquor for a
period not to exceed three (3) days to any person applying to the same
in connection with a Tribal or community activity, provided that the
conditions prescribed in Section 4 of this Liquor Ordinance shall be
observed by the person holding the temporary permit. Each permit issued
shall specify the types of intoxicating beverages to be sold. Further,
a fee of $50.00 will be assessed on temporary permits and may be waived
at the discretion of the Executive Council (i.e. charitable events,
fundraisers, etc.).
Section 4. Conditions of a Tribal Liquor License. Any Tribal liquor
license issued under this Liquor Ordinance shall be subject to such
reasonable conditions as the Executive Council shall enact including
but not limited to the following:
a. The license shall be for an initial term not to exceed one (1)
year and may be extended up to 5 years at the discretion of the
Executive Council.
b. The licensee shall at all times maintain an orderly, clean, and
neat establishment, both inside and outside the licensed premises.
c. The licensed premises shall be subject to patrol by Tribal law
enforcement personnel and such other law enforcement officials as may
be authorized under Federal, State, or Tribal law.
d. The licensed premises shall be open to inspection by duly
authorized Tribal Designee at all times during the regular business
hours.
e. Subject to the provisions of subsection ``g'' of this section,
no Liquor or intoxicating beverages shall be sold, served, disposed of,
delivered, or given to any person, or consumed on the licensed premises
except in conformity with the hours and days prescribed by the laws of
the State of California, and in accordance with the hours enacted by
the Executive Council, provided that the licensed premises shall not
operate or open earlier, or operate or close later, than is permitted
by the laws of the State of California.
f. No Liquor shall be sold within 200 feet of a polling place on
Tribal, State or Federal, Election days, or when a referendum is held
by the Tribe, and including special days of observation as designated
by the Executive Council.
g. All acts and transactions under authority of the Tribal Liquor
License shall be in conformity with the laws of the State of
California, with this Liquor Ordinance, and with any Tribal liquor
license issued pursuant to this Liquor Ordinance.
h. No person under the age permitted under the laws of the State of
California shall be sold, served, delivered, given, or allowed to
consume Alcoholic Beverages in the licensed establishment or area.
i. There shall be no discrimination in the operations under the
Tribal Liquor License by reason of race, color, gender, creed, religion
or sexual preference.
Section 5. License Not a Property Right. Notwithstanding any other
provision of this Liquor Ordinance, a Tribal liquor license is a mere
permit for a fixed duration of time. A Tribal liquor license shall not
be deemed a property right or vested right of any kind, nor shall the
granting of a Tribal liquor license give rise to a presumption of legal
entitlement to a license/permit in a subsequent time period.
Section 6. Assignment or Transfer. No Tribal license issued under
this Liquor Ordinance shall be assigned or transferred without the
prior written approval of the Executive Council expressed by formal,
written resolution and/or transfer order.
Article IV--Rules, Regulations, and Enforcement
Section 1. Sale or Possession with Intent to Sell Without a Permit.
Any person who shall sell or offer for sale or distribute in any
manner, any Liquor in violation of this Liquor Ordinance, or who shall
operate or shall have Liquor in his possession with intent to sell or
distribute without a license or permit, shall be in violation of this
Liquor Ordinance.
Section 2. Purchases from Other than Licensed or Allowed
Facilities. Any person who, while on Tribal lands, buys Liquor from any
person other than at a properly licensed or allowed facility shall be
in violation of this Liquor Ordinance.
Section 3. Sales to Persons under the Influence of Liquor. Selling
any Alcoholic Beverage or Liquor to any obviously intoxicated person is
a violation of this Ordinance.
[[Page 31384]]
Section 4. Consumption or Possession of Liquor by Persons Under 21
Years of Age. No person under the age of 21 years shall consume,
acquire or have in his possession any Alcoholic Beverage. No person
shall permit any other person under the age of 21 to consume Liquor on
his premises or any premises under his control except in those
situations set out in this section. Any person violating this section
shall be in violation of a separate violation of this Liquor Ordinance
for each and every drink so consumed.
Section 5. Sales of Liquor to Persons Under 21 Years of Age. Any
person who shall sell or provide liquor to any person under the age of
21 years shall be in violation of this Liquor Ordinance for each sale
or drink provided.
Section 6. Transfer of Identification to Minor. Any person who
transfers in any manner an identification of age to a minor for the
purpose of permitting such minor to obtain liquor shall be in violation
of this Ordinance; provided that corroborative testimony of witness
other than the minor shall be a requirement of finding a violation of
this Liquor Ordinance.
Section 7. Use of False or Altered Identification. Any person who
attempts to purchase an Alcoholic Beverage through the use of a false
or altered identification shall be in violation of this Liquor
Ordinance.
Section 8. Acceptable Identification. Where there may be a question
of a person's right to purchase liquor by reason of his or her age,
such person shall be required to present any one of the following forms
of identification which shows his or her correct age and bears his or
her signature and photograph: (1) A driver's license of any state or
identification card issued by any state department of motor vehicles;
(2) United States active duty military; (3) a passport, or Habematolel
Pomo of Upper Lake Tribal I.D. with photo.
Section 9. Violations of this Liquor Ordinance. Any person in
violation of this Ordinance shall be liable to pay the Tribe a civil
fine not to exceed $500 per violation as civil damages to defray the
Tribe's cost of enforcement of this Liquor Ordinance. In addition to
any penalties so imposed, any license or permit issued hereunder may be
suspended or canceled by the Executive Council for the violation of any
of the provisions of this Liquor Ordinance, or of the Tribal license or
permit, upon hearing before the Executive Council after 10 days notice
to the licensee. The decision of the Executive Council shall be final
and no appeal there from is allowed. The Executive Council shall grant
all persons in any hearing regarding violations, penalties, or license
suspensions under this Ordinance all the rights and due process granted
by the Indian Civil Rights Act, 25 U.S.C. 1301, et seq. Notice of a
Executive Council hearing regarding an alleged violation of this
Ordinance shall be given to the affected individual(s) or entities at
least 10 days in advance of the hearing. The notice will be delivered
in person or by certified mail with the Executive Council retaining
proof of service. The notice will set out the right of the alleged
violator to be represented by Counsel retained by the alleged violator,
the right to speak and to present witnesses and to cross examine any
witnesses against them.
Section 10. Possession of Liquor Contrary to This Liquor Ordinance.
Alcoholic Beverages which are possessed contrary to the terms of this
Liquor Ordinance are declared to be contraband. Any Tribal agent,
employee, or officer who is authorized by the Executive Council to
enforce this section shall have the authority to, and shall, seize all
contraband and preserve it for evidentiary purposes for use by the
Executive Council or Federal or State law enforcement agencies.
Section 11. Disposition of Seized Contraband. Any officer seizing
contraband shall preserve the contraband in accordance with the
appropriate California law code. Upon being found in violation of this
Liquor Ordinance by the Executive Council, the party shall forfeit all
right, title and interest in the items seized which shall become the
property of the Tribe.
Article X--Taxes
Section 1. Sales Tax. There is hereby levied and shall be collected
a tax on each sale of Alcoholic Beverages on Tribal Lands in the amount
of one percent (1%) of the amount actually collected. The tax imposed
by this section shall apply to all retail sales of liquor on Tribal
Lands and shall be in addition to any tax imposed on such liquor sales
by the State of California.
Section 2. Payment of Taxes to Tribe. All taxes from the sale of
Alcoholic Beverages on Tribal Lands shall be paid to the Trust Agent of
the Tribe.
Section 3. Taxes Due. All taxes from the sale of Alcoholic
Beverages on Tribal Lands are due and payable to the Trust Agent of the
Tribe within thirty (30) days of the end of the calendar quarter for
which the taxes are due.
Section 4. Reports. Along with payment of the taxes imposed herein,
the Taxpayer shall submit a written accounting for the quarter of all
income from the sale or distribution of alcoholic beverages as well as
for the taxes collected.
Section 5. Audit. As a condition of obtaining a license, the
licensee must agree to the review or audit of its books and records
relating to the sale of alcoholic beverages on Tribal Lands. Said
review or audit may be done annually or as designated by the Executive
Council through its agents or employees whenever, in the opinion of the
Executive Council, such a review or audit is necessary to verify the
accuracy of reports as defined in Section 4 of this Article.
Article XI--Profits
Section 1. Disposition of Proceeds. The gross proceeds collected by
the Executive Council from all licensing provided under this Liquor
Ordinance, or the imposition of civil penalties for violating this
Ordinance, or from the taxation of the sales of Alcoholic Beverages on
Tribal Lands, shall be distributed as follows:
a. For the payment of all necessary personnel, administrative
costs, and legal fees for the administration and enforcement of this
Liquor Ordinance and its activities.
b. The remainder shall be turned over to the Liquor Trust Account
of the Tribe.
Article XII--Severability and Miscellaneous
Section 1. Severability. If any provision or application of this
Liquor Ordinance is determined upon review by a court of competent
jurisdiction to be invalid, such adjudication shall not be held to
render ineffectual the remaining portions of this Ordinance or to
render such provisions inapplicable to other persons or circumstances.
Section 2. Prior Enactments. Any and all prior ordinances,
resolutions or enactments of the Executive Council which are
inconsistent with the provisions of this Liquor Ordinance are hereby
repealed.
Section 3. Conformance with Tribal, State and Federal Law. This
Ordinance conforms to all Tribal law and governing documents such as
the Constitution and By-Laws. All provisions and transactions under
this Ordinance shall be in conformity with California State law
regarding alcohol to the extent required by 18 U.S.C. 1161 and with all
Federal laws regarding alcohol in Indian country.
Section 4. Enforcement. All actions brought by the Executive
Council to enforce the provisions of this Ordinance shall be filed in
the Tribal Court of the Habematolel Pomo of Upper Lake. In the absence
of a tribal court, said actions
[[Page 31385]]
shall be filed in Federal Court in the Northern District of California
and be appealable in the Federal Court system. If the Federal Court
should determine that it lacks jurisdiction over said action, it shall
be filed in the California State Court in County of Lake with subject
matter jurisdiction and venue over the action. The first court system
to have jurisdiction over an enforcement action which may be brought in
Tribal, Federal, or State Court, shall have exclusive jurisdiction over
such actions.
Section 5. Effective Date. This Ordinance becomes effective after
the Secretary of the Interior certifies the Ordinance and publishes it
in the Federal Register.
Article XIII--Amendment
Section 1. Amendment or Repeal. This Ordinance may be amended or
repealed by a majority vote of the Executive Council at a duly called
meeting. Amendments of this Ordinance shall become effective after the
Secretary of the Interior certifies and publishes the Amendments in the
Federal Register.
Article XIV--Sovereign Immunity
Section 1. Nothing contained in this Liquor Ordinance is intended
to nor does in anyway limit, alter, restrict, or expressly or
unequivocally waive the Tribe's sovereign immunity from un-consented
suit or action.
[FR Doc. 2012-12843 Filed 5-24-12; 8:45 am]
BILLING CODE 4310-4J-P
