Delaware Nation; Beverage Control Act of 2019, 35130-35133 [2019-15544]
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Federal Register / Vol. 84, No. 140 / Monday, July 22, 2019 / Notices
balancing test, which is conducted
against a backdrop of ‘‘traditional
notions of Indian self-government,’’
requires a particularized examination of
the relevant State, Federal, and Tribal
interests. We hereby adopt the Bracker
analysis from the preamble to the
surface leasing regulations, 77 FR at
72,447–48, as supplemented by the
analysis below.
The strong Federal and Tribal
interests against State and local taxation
of improvements, leaseholds, and
activities on land leased under the
Department’s leasing regulations apply
equally to improvements, leaseholds,
and activities on land leased pursuant to
Tribal leasing regulations approved
under the HEARTH Act. Congress’s
overarching intent was to ‘‘allow Tribes
to exercise greater control over their
own land, support self-determination,
and eliminate bureaucratic delays that
stand in the way of homeownership and
economic development in Tribal
communities.’’ 158 Cong. Rec. H. 2682
(May 15, 2012). The HEARTH Act was
intended to afford Tribes ‘‘flexibility to
adapt lease terms to suit [their] business
and cultural needs’’ and to ‘‘enable
[Tribes] to approve leases quickly and
efficiently.’’ Id. at 5–6.
Assessment of State and local taxes
would obstruct these express Federal
policies supporting Tribal economic
development and self-determination,
and also threaten substantial Tribal
interests in effective Tribal government,
economic self-sufficiency, and territorial
autonomy. See Michigan v. Bay Mills
Indian Community, 134 S. Ct. 2024,
2043 (2014) (Sotomayor, J., concurring)
(determining that ‘‘[a] key goal of the
Federal Government is to render Tribes
more self-sufficient, and better
positioned to fund their own sovereign
functions, rather than relying on Federal
funding’’). The additional costs of State
and local taxation have a chilling effect
on potential lessees, as well as on a tribe
that, as a result, might refrain from
exercising its own sovereign right to
impose a Tribal tax to support its
infrastructure needs. See id. at 2043–44
(finding that State and local taxes
greatly discourage Tribes from raising
tax revenue from the same sources
because the imposition of double
taxation would impede Tribal economic
growth).
Similar to BIA’s surface leasing
regulations, Tribal regulations under the
HEARTH Act pervasively cover all
aspects of leasing. See 25 U.S.C.
415(h)(3)(B)(i) (requiring Tribal
regulations be consistent with BIA
surface leasing regulations).
Furthermore, the Federal government
remains involved in the Tribal land
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leasing process by approving the Tribal
leasing regulations in the first instance
and providing technical assistance,
upon request by a tribe, for the
development of an environmental
review process. The Secretary also
retains authority to take any necessary
actions to remedy violations of a lease
or of the Tribal regulations, including
terminating the lease or rescinding
approval of the Tribal regulations and
reassuming lease approval
responsibilities. Moreover, the Secretary
continues to review, approve, and
monitor individual Indian land leases
and other types of leases not covered
under the Tribal regulations according
to the Part 162 regulations.
Accordingly, the Federal and Tribal
interests weigh heavily in favor of
preemption of State and local taxes on
lease-related activities and interests,
regardless of whether the lease is
governed by Tribal leasing regulations
or Part 162. Improvements, activities,
and leasehold or possessory interests
may be subject to taxation by the Jamul
Indian Village of California.
Dated: June 14, 2019.
Tara Sweeney,
Assistant Secretary—Indian Affairs.
[FR Doc. 2019–15545 Filed 7–19–19; 8:45 am]
BILLING CODE 4337–15–P
DEPARTMENT OF THE INTERIOR
[190A2100DD/AABB003600/
A0T902020.999900.253G]
Bureau of Indian Affairs,
Interior.
ACTION: Notice.
AGENCY:
This notice publishes the
Delaware Nation Beverage Control Act
of 2019 (Alcohol Ordinance). The
Alcohol Ordinance regulates and
controls the possession, sale,
manufacture, and distribution of alcohol
on Delaware Nation trust lands in
conformity with the laws of the State of
Oklahoma where applicable and
necessary. Although the Alcohol
Ordinance was adopted on March 5,
2019, it does not become effective until
published in the Federal Register.
DATES: This Alcohol Ordinance takes
effect on August 21, 2019.
FOR FURTHER INFORMATION CONTACT: Ms.
Sherry Lovin, Tribal Government
Officer, Southern Plains Regional Office,
Bureau of Indian Affairs, Post Box 368,
Anadarko, Oklahoma 73005, telephone:
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Authority: 18 U.S.C. 1161
The Delaware Nation Beverage Control
Act of 2019 shall read as follows:
Findings:
Delaware Nation; Beverage Control Act
of 2019
PO 00000
Dated: June 25, 2019
Tara Sweeney,
Assistant Secretary—Indian Affairs.
Alcohol Ordinance of the Delaware
Nation
Bureau of Indian Affairs
SUMMARY:
(405) 247–1534, fax: (405) 247–1534; or
Ms. Laurel Iron Cloud, Chief, Division
of Tribal Government Services, Office of
Indian Services, Bureau of Indian
Affairs, 1849 C Street NW, MS–3645–
MIB, Washington, DC 20240, telephone:
(202) 513–7641.
SUPPLEMENTARY INFORMATION: Pursuant
to the Act of August 15, 1953, Public
Law 83–277, 67 Stat. 5886, 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 control
ordinances for the purpose of regulating
liquor transactions in Indian country.
On March 5, 2019, the Delaware Nation
Executive Committee duly adopted the
Delaware Nation Beverage Control Act
of 2019. 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 Delaware Nation
Executive Committee duly adopted by
Resolution No. 2019–031 this Delaware
Nation Beverage Control Act of 2019 on
March 5, 2019.
The Delaware Nation (hereinafter ‘‘the
Nation’’) is a federally-recognized
Indian tribe, exercising jurisdiction over
all Tribal Lands as specified herein.
The Nation’s Constitution, Article VI,
Section 2, empowers the Executive
Committee of the Nation to promulgate
ordinances and resolutions for the
Nation.
The sale of Alcohol subject to the
terms and provisions of this Alcohol
Ordinance and all applicable laws, shall
provide funds for the continued
operation and strengthening of the
Tribal government and the delivery of
Tribal government services. It shall also
produce capital which the Nation can
use to further develop its economy.
The enactment of this Alcohol
Ordinance will also increase the ability
of the Nation’s government to control
the distribution and possession of
Alcohol within the Tribal Lands.
NOW THEREFORE, to permit the sale
of Alcohol subject to the necessary
controls and to promote the health,
safety and welfare of its members, the
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Executive Committee adopts this
Alcohol Ordinance.
Introduction:
101. Title. This Ordinance shall be
known as the ‘‘Alcohol Ordinance of the
Delaware Nation.
102. Authority. This Alcohol
Ordinance is enacted pursuant to the
Act of August 15, 1953 (Pub. L. No. 83277, 67 Stat. 588 (codified at 18 U.S.C.
§ 1161), the Constitution of the
Delaware Nation as ratified on April 21,
1973, as amended from time to time,
and all other applicable law.
103. Purpose. The purpose of this
Alcohol Ordinance is to regulate and to
control the possession and sale of
Alcohol to and within the jurisdiction of
the Delaware Nation. The Tribal Lands
as specified in this Ordinance are
limited in nature and do not encompass
all land within the Tribe’s jurisdiction,
as is stated in Section 210 herein. The
enactment of a Tribal ordinance
governing Alcohol possession and sale
within the Tribal Lands will increase
the ability of the Tribal government to
control Alcohol distribution and
possession and provide an important
source of revenue for the continued
operation and strengthening of the
Tribal government and the delivery of
Tribal government services.
104. Jurisdiction. This Ordinance
applies on all Tribal Lands as
specifically defined herein.
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Definitions:
201. As used in this Alcohol
Ordinance, the following words shall
have the following meanings unless the
context clearly requires otherwise.
202. ‘‘Alcohol’’ means that substance
known as ethyl alcohol, hydrated oxide
of ethyl, or spirit or 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.
203. ‘‘Alcoholic Beverage’’ is
synonymous with the term ‘‘Alcohol’’ as
defined in Section 202 of this Chapter.
204. ‘‘Bar’’ means any establishment
with special space and accommodations
for sale by the glass and for
consumption on the premises of any
alcoholic beverage, as herein defined.
205. ‘‘Executive Committee’’ as used
herein means the duly-elected
governing body authorized by the
Nation’s Constitution to promulgate all
Tribal ordinances and regulations.
206. ‘‘General Council’’ means the
Council of the Tribe, which comprises
all individual citizens of the Tribe who
are 18 years old or older.
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207. ‘‘Sale’’ and ‘‘Sell’’ include
exchange, barter, and traffic and also
include the selling or supplying or
distributing by any means whatsoever,
of Alcohol or of any liquid known or
described as beer or by any name
whatsoever commonly used to describe
malt or brewed Alcohol or wine by any
person to any person.
208. ‘‘Spirits’’ means any beverage
which contains alcohol obtained by
distillation including wines exceeding
17% of alcohol by weight.
209. ‘‘Tribe’’ means the Delaware
Nation.
210. ‘‘Tribal Lands’’ means the 20
acres of land held in trust by the United
States for the benefit of the Delaware
Nation upon which a gaming facility of
the Nation known as Casino Oklahoma
exists, with a street address of 220 East
Cummins Road, Hinton, Oklahoma
73047, more specifically described as:
BEGINNING at a point on the South
line of the said SE/4, 471.01 feet South
88°15′07″ East of the Southwest corner
of the SE/4 of Section 10, Township 12
North, Range 11 West of the Indian
Meridian, Caddo County, Oklahoma;
THENCE North 00°18′48″ West 390
feet from and parallel with the East
Right-of-Way line of Highway 281, a
distance of 363.00 feet;
THENCE South 89°45′00: West 139.50
feet, to a point 250.50 feet East of said
East Right-of-Way line;
THENCE North 0°18′48″ West,
parallel with said East Right-of-Way, a
distance of 741.86 feet to a point 275.50
feet East of said Right-of-Way 330.00
feet East of the West line of said SE/4′
THENCE North 0°15′00″ West 330.00
feet from and parallel with the West line
of said SE/4 a distance of 1146.84 feet
to the South Right-of-Way line of
Interstate 40;
THENCE North 69°19′39″ East along
said South Right-of-Way line a distance
of 253.10 feet;
THENCE South 89°50′51″ East along
said Right-of-Way line a distance of
161.07 feet;
THENCE South 0°15′00″ East parallel
with the West line of said SE/4, a
distance of 2347.87 feet to the South
line of said SE/4;
THENCE North 88°15′07″ West along
said South line a distance of 257.69 feet
to the point of beginning, containing an
area of 871,200 square feet or 20.00
acres, more or less.
Any lands Delaware Nation has been
granted permanent use.
211. ‘‘Trust Agent″ means the Nation’s
Tax Commission or its designee.
212. ‘‘Wine’’ means any alcoholic
beverage obtained by fermentation of
fruits (grapes, berries, apples, etc.) or
other agricultural product containing
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sugar, to which any saccharine
substances may have been added before,
during or after fermentation, and
containing not more than seventeen
percent (17%) of alcohol by weight,
including sweet wines fortified with
wine spirits such as port, sherry,
muscatel and angelica, not exceeding
seventeen percent (17%) of alcohol by
weight.
Powers of Enforcement:
301. Powers. The Executive
Committee, in furtherance of this
Alcohol 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 Land;
b. To employ managers, accountants,
security personnel, inspectors, and such
other persons as shall be reasonably
necessary to allow the Executive
Committee to perform its functions;
c. To issue licenses permitting the
sale or manufacture or distribution of
Alcohol within the Tribal Lands;
d. To bring suit in the appropriate
court to enforce this Alcohol Ordinance
as necessary;
e. To determine and seek damages for
violation of this Alcohol Ordinance;
f. To make reports to the General
Council;
g. To collect taxes and fees levied or
set by the Executive Committee, and to
keep accurate records, books, and
accounts;
h. To exercise such other powers as
authorized by Tribal law; and
i. To delegate authorities under this
Alcohol Ordinance to Subcommittees,
Commissions, or Boards.
302. Limitation on Powers. In the
exercise of its powers and duties under
this Alcohol Ordinance, the Executive
Committee as a whole and its individual
members shall not accept any gratuity,
compensation or other thing of value
from any Alcohol wholesaler, retailer,
distributor or licensee.
303. Inspection Rights. The premises
on which Alcohol is sold or distributed
shall be open for inspection by an
authorized designee at all reasonable
times, which includes the hours the
business is open to the public, for the
purposes of ascertaining whether this
Alcohol Ordinance and the rules and
regulations implementing this Alcohol
Ordinance are being followed.
Sales of Alcohol:
401. Tribal Alcohol License Required;
Tribally-Owned Businesses. No sale of
Alcoholic Beverages shall be made on
Tribal Land, except at a Triballylicensed or Tribally-owned business.
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Nothing in this section shall prohibit a
Tribal licensee or the Nation from
purchasing Alcohol from a source
outside the Nation’s jurisdiction for
resale on Tribal Lands, or the delivery
to the Nation or a Tribal licensee of
Alcohol purchased from sources outside
Tribal Lands for resale within the Tribal
Lands. Each location shall obtain and
maintain a Tribal license from the
Executive Committee, or its designee,
for the sale of Alcohol. Such license
may be for the sale of Alcohol for offpremises or on-premises consumption.
402. Sale only on Tribal Land. All
Alcohol Sales shall be on Tribal Land,
including leases thereon.
403. Sales for Cash. All Alcohol sales
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 credit cards.
404. Sale for Personal Consumption.
Resale of any Alcoholic Beverage
purchased within the Tribal Lands is
prohibited. Any person who is not
licensed pursuant to this Alcohol
Ordinance who purchases an Alcoholic
Beverage on Tribal Land and sells it,
whether in the original container or not,
shall be guilty of a violation of this
Alcohol Ordinance and shall be subject
to paying damages to the Nation as set
forth herein.
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Licensing:
501. Tribal Alcohol License
Requirements. A Tribal license shall be
issued under this Alcohol Ordinance by
a designee of the Executive Committee
upon proof of the following:
a. Satisfactory proof that the applicant
is or will be duly licensed by the State
of Oklahoma to sell Alcoholic
Beverages;
b. Acceptance of a Tribal Alcohol
License expresses acceptance of all
conditions of the Tribal license.
502. Temporary Permits. The
licensing designee may grant a
temporary permit for the sale of Alcohol
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 503 of this
Ordinance shall be observed by the
permittee and the permittee shall have
a valid Oklahoma ABLE Commission
license.
503. Conditions of a Tribal Alcohol
License. Any Tribal Alcohol license
issued under this Alcohol Ordinance
shall be subject to such reasonable
conditions as the Executive Committee
or its designee shall fix including but
not limited to the following:
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a. The license shall be for a term to
coincide with the applicant’s Oklahoma
ABLE Commission license.
b. 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, Oklahoma, or
Tribal law.
c. The licensed premises shall be
open to inspection by duly authorized
Tribal officials at all times during the
regular business hours.
d. No Alcohol 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 Oklahoma.
e. All acts and transactions under
authority of the Tribal Alcohol license
shall be in conformity with the laws of
the State of Oklahoma, with this
Alcohol Ordinance, with any applicable
Tribal rules and regulations, and with
any Tribal Alcohol license issued
pursuant to this Alcohol Ordinance.
f. No person under the age permitted
under the laws of the State of Oklahoma
shall be sold, served, delivered, given,
or allowed to consume Alcoholic
Beverages in the licensed establishment
or area.
g. There shall be no discrimination in
the operations under the Tribal license
by reason of sex, race, color, or creed,
provided that Tribal licensees may
adopt Tribal or Indian preference
policies.
504. License Not a Property Right.
Notwithstanding any other provision of
this Alcohol Ordinance, a Tribal
Alcohol license is a mere permit for a
fixed duration of time. A Tribal Alcohol
license shall not be deemed a property
right or vested right of any kind, nor
shall the granting of a Tribal Alcohol
license give rise to a presumption of
legal entitlement to a license or permit
in a subsequent time period.
505. Assignment or Transfer. No
Tribal license issued under this Alcohol
Ordinance shall be assigned or
transferred without the prior written
approval of the Executive Committee
expressed by formal resolution.
Civil Violations:
601. Sale or Possession With Intent to
Sell Without a Permit. Any person who
shall sell or offer for sale or distribute
or transport in any manner, any Alcohol
in violation of this Alcohol Ordinance,
or who shall operate or shall have
Alcohol in his or her possession with
intent to sell or distribute without a
license or permit, shall be guilty of a
violation of this Alcohol Ordinance.
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602. Purchases From Other Than
Licensed or Allowed Facilities. Any
person who, within the Tribal Lands,
buys Alcohol from any person other
than at a properly licensed or allowed
facility shall be guilty of a violation of
this Alcohol Ordinance.
603. Consuming Alcohol in Public
Conveyance. Any person engaged
wholly or in part in the business of
carrying passengers for hire, and every
agent, servant or employee or such
person who shall knowingly permit any
person to drink any Alcohol in any
public conveyances shall be guilty of an
offense. Any person who shall drink any
Alcohol in a public conveyance shall be
guilty of a violation of this Alcohol
Ordinance.
604. Consumption or Possession of
Alcohol by Persons Under 21 Years of
Age. No person under the age of 21
years shall consume, acquire, or have in
his or her possession any Alcohol. An
employee of a tribally licensed facility
age 18 to 20 with a valid ABLE license
is permitted to transport alcohol for the
purpose of serving customers. No
person shall permit any other person
under the age of 21 to consume Alcohol
on his or her premises or any premises
under his or her control except in those
situations set out in this section. Any
person violating this section shall be
guilty of a separate violation of this
Alcohol Ordinance for each and every
drink so consumed.
605. Sales of Alcohol to Persons
Under 21 Years of Age. Any person who
shall sell or provide Alcohol to any
person under the age of 21 years shall
be guilty of a violation of this Alcohol
Ordinance for each sale or drink
provided.
606. 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 Alcohol shall be
guilty of an offense; provided, that
corroborative testimony of witness other
than the minor shall be a requirement of
finding a violation of this Alcohol
Ordinance.
607. 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 guilty of
violating this Alcohol Ordinance.
608. Acceptable Identification. Where
there may be a question of a person’s
right to purchase Alcohol by reason of
his or her age, such person shall be
required to present any one of the
following cards of identification which
is not expired and shows his or her
correct age and bears his or her
signature and photograph: (1) A State-
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issued ID; (2) United States active duty
military; (3) a passport, or (4) a Tribal
enrollment or identification card issued
by any federally-recognized Indian
Nation.
609. Violations of this Alcohol
Ordinance. Any person guilty of a
violation of this Ordinance shall be
liable to pay the Nation a civil fine not
to exceed $1,000 per violation as civil
damages to defray the Nation’s cost of
enforcement of this Alcohol Ordinance.
In addition to any penalties so imposed,
any license or permit issued hereunder
may be suspended or canceled by the
licensing designee for the violation of
any of the provisions of this Alcohol
Ordinance. This suspension and/or
cancellation may be appealed in the
Delaware Nation Court. The appellant
shall be responsible for any filing fee
and/or court costs associated with any
appeal.
610. Possession of Alcohol Contrary
to This Alcohol Ordinance. Alcohol
possessed contrary to the terms of this
Alcohol Ordinance are declared to be
contraband. Any Tribal agent,
employee, or officer who is authorized
by the Executive Committee to enforce
this section shall have the authority to,
and shall, seize all contraband.
611. Disposition of Seized
Contraband. Any officer seizing
contraband shall preserve the
contraband in accordance with
appropriate law. Upon being found in
violation of this Alcohol Ordinance by
the Executive Committee, the party shall
forfeit all right, title and interest in the
items seized which shall become the
property of the Nation.
Taxes:
701. Sales Tax. There is hereby levied
and shall be collected a tax on each sale
of Alcoholic Beverages on Tribal Land
in the amount determined by the
Executive Committee. The tax imposed
by this section shall apply to all retail
sales of Alcohol on Tribal Lands and
shall preempt any tax imposed on such
Alcohol sales by the State of Oklahoma.
702. Payment of Taxes to Nation.
Tribal taxes from the sale of Alcoholic
Beverages or on Tribal Lands shall be
paid over to the Trust Agent of the
Nation.
703. Taxes Due. Tribal taxes from the
sale of Alcoholic Beverages on Tribal
Lands are due within thirty (30) days of
the end of the calendar quarter for
which the taxes are due.
704. Reports. Along with payment of
the taxes imposed herein, the taxpayer
shall submit an accounting for the
quarter of all income from the sale or
distribution of Alcoholic Beverages and
as well as for the taxes collected.
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705. 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 and on Tribal
Lands. Said review or audit may be
done annually by authorized agents or
employees whenever, in the opinion of
the Executive Committee, such a review
or audit is necessary to verify the
accuracy of reports.
Profits:
801. Disposition of Proceeds. The
gross proceeds collected by the
Executive Committee or its designee
from all licensing provided under this
Alcohol 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 operation and its
activities.
b. The remainder shall be turned over
to the Trust Agent.
Severability and Miscellaneous:
901. Severability. If any provision or
application of this Alcohol 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.
902. Prior Enactments. Any and all
prior ordinances, resolutions or
enactments of the Executive Committee
which are inconsistent with the
provisions of this Alcohol Ordinance
are hereby repealed.
903. Conformance with Tribal, State,
and Federal Law. This Ordinance
conforms with all Tribal law and
governing documents. All provisions
and transactions under this Ordinance
shall be in conformity with Oklahoma
State law regarding the sale of Alcoholic
Beverages and to the extent required by
18 U.S.C. § 1161, provided that § 1161
shall not be deemed to waive Tribal
sovereign immunity in any respect, and
with all Federal laws regarding alcohol
in Indian country.
904. Enforcement. All actions to
enforce the provisions of this Ordinance
brought by the Executive Committee or
its designee shall be filed in the
Delaware Nation Court or Court of
competent jurisdiction for the Delaware
Nation of Oklahoma, which shall have
exclusive jurisdiction over the
enforcement and interpretation of this
Ordinance.
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35133
905. Effective Date. This Ordinance
becomes effective as of the date the
Secretary of the Interior certifies the
Ordinance and publishes it in the
Federal Register.
Amendment:
1001. Amendment or Repeal. This
Ordinance may be amended or repealed
by a majority vote of the Executive
Committee. Amendments of this
Ordinance will be published in the
Federal Register to become effective.
Sovereign Immunity:
1101. Nothing contained in this
Alcohol Ordinance is intended to nor
does in anyway limit, alter, restrict, or
waive the Nation’s sovereign immunity
from unconsented suit or action. Tribal
Alcohol licensees entitled to assert the
defense of Tribal sovereign immunity
shall not be deemed to have waived that
immunity in any dram-shop action in
any court, whether Tribal, Federal, or
State.
Dram-Shop Actions:
1201. The Delaware Nation Court or
Court of competent jurisdiction for the
Delaware Nation shall have exclusive
jurisdiction over any dram-shop action
against a Tribal Alcohol licensee.
[FR Doc. 2019–15544 Filed 7–19–19; 8:45 am]
BILLING CODE 4337–15–P
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[190A2100DD/AAKC001030/
A0A501010.999900]
The Confederated Tribes of the
Umatilla Indian Reservation;
Amendments to Liquor Code
Bureau of Indian Affairs,
Interior.
ACTION: Notice.
AGENCY:
This notice publishes
amendments to the Confederated Tribes
of the Umatilla Indian Reservation
Liquor Code. This codification amends
and supersedes the existing
Confederated Tribes of the Umatilla
Indian Reservation Liquor Code,
enacted by the Umatilla Board of
Trustees through Resolution 15–019 on
March 23, 2015.
DATES: This code shall take effect on
August 21, 2019.
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
SUMMARY:
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[Federal Register Volume 84, Number 140 (Monday, July 22, 2019)]
[Notices]
[Pages 35130-35133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15544]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[190A2100DD/AABB003600/A0T902020.999900.253G]
Delaware Nation; Beverage Control Act of 2019
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
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SUMMARY: This notice publishes the Delaware Nation Beverage Control Act
of 2019 (Alcohol Ordinance). The Alcohol Ordinance regulates and
controls the possession, sale, manufacture, and distribution of alcohol
on Delaware Nation trust lands in conformity with the laws of the State
of Oklahoma where applicable and necessary. Although the Alcohol
Ordinance was adopted on March 5, 2019, it does not become effective
until published in the Federal Register.
DATES: This Alcohol Ordinance takes effect on August 21, 2019.
FOR FURTHER INFORMATION CONTACT: Ms. Sherry Lovin, Tribal Government
Officer, Southern Plains Regional Office, Bureau of Indian Affairs,
Post Box 368, Anadarko, Oklahoma 73005, telephone: (405) 247-1534, fax:
(405) 247-1534; or Ms. Laurel Iron Cloud, Chief, Division of Tribal
Government Services, Office of Indian Services, Bureau of Indian
Affairs, 1849 C Street NW, MS-3645-MIB, Washington, DC 20240,
telephone: (202) 513-7641.
SUPPLEMENTARY INFORMATION: Pursuant to the Act of August 15, 1953,
Public Law 83-277, 67 Stat. 5886, 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 control ordinances for the purpose of regulating
liquor transactions in Indian country. On March 5, 2019, the Delaware
Nation Executive Committee duly adopted the Delaware Nation Beverage
Control Act of 2019. 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 Delaware Nation Executive
Committee duly adopted by Resolution No. 2019-031 this Delaware Nation
Beverage Control Act of 2019 on March 5, 2019.
Dated: June 25, 2019
Tara Sweeney,
Assistant Secretary--Indian Affairs.
Authority: 18 U.S.C. 1161
The Delaware Nation Beverage Control Act of 2019 shall read as follows:
Alcohol Ordinance of the Delaware Nation
Findings:
The Delaware Nation (hereinafter ``the Nation'') is a federally-
recognized Indian tribe, exercising jurisdiction over all Tribal Lands
as specified herein.
The Nation's Constitution, Article VI, Section 2, empowers the
Executive Committee of the Nation to promulgate ordinances and
resolutions for the Nation.
The sale of Alcohol subject to the terms and provisions of this
Alcohol Ordinance and all applicable laws, shall provide funds for the
continued operation and strengthening of the Tribal government and the
delivery of Tribal government services. It shall also produce capital
which the Nation can use to further develop its economy.
The enactment of this Alcohol Ordinance will also increase the
ability of the Nation's government to control the distribution and
possession of Alcohol within the Tribal Lands.
NOW THEREFORE, to permit the sale of Alcohol subject to the
necessary controls and to promote the health, safety and welfare of its
members, the
[[Page 35131]]
Executive Committee adopts this Alcohol Ordinance.
Introduction:
101. Title. This Ordinance shall be known as the ``Alcohol
Ordinance of the Delaware Nation.
102. Authority. This Alcohol Ordinance is enacted pursuant to the
Act of August 15, 1953 (Pub. L. No. 83-277, 67 Stat. 588 (codified at
18 U.S.C. Sec. [thinsp]1161), the Constitution of the Delaware Nation
as ratified on April 21, 1973, as amended from time to time, and all
other applicable law.
103. Purpose. The purpose of this Alcohol Ordinance is to regulate
and to control the possession and sale of Alcohol to and within the
jurisdiction of the Delaware Nation. The Tribal Lands as specified in
this Ordinance are limited in nature and do not encompass all land
within the Tribe's jurisdiction, as is stated in Section 210 herein.
The enactment of a Tribal ordinance governing Alcohol possession and
sale within the Tribal Lands will increase the ability of the Tribal
government to control Alcohol distribution and possession and provide
an important source of revenue for the continued operation and
strengthening of the Tribal government and the delivery of Tribal
government services.
104. Jurisdiction. This Ordinance applies on all Tribal Lands as
specifically defined herein.
Definitions:
201. As used in this Alcohol Ordinance, the following words shall
have the following meanings unless the context clearly requires
otherwise.
202. ``Alcohol'' means that substance known as ethyl alcohol,
hydrated oxide of ethyl, or spirit or 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.
203. ``Alcoholic Beverage'' is synonymous with the term ``Alcohol''
as defined in Section 202 of this Chapter.
204. ``Bar'' means any establishment with special space and
accommodations for sale by the glass and for consumption on the
premises of any alcoholic beverage, as herein defined.
205. ``Executive Committee'' as used herein means the duly-elected
governing body authorized by the Nation's Constitution to promulgate
all Tribal ordinances and regulations.
206. ``General Council'' means the Council of the Tribe, which
comprises all individual citizens of the Tribe who are 18 years old or
older.
207. ``Sale'' and ``Sell'' include exchange, barter, and traffic
and also include the selling or supplying or distributing by any means
whatsoever, of Alcohol or of any liquid known or described as beer or
by any name whatsoever commonly used to describe malt or brewed Alcohol
or wine by any person to any person.
208. ``Spirits'' means any beverage which contains alcohol obtained
by distillation including wines exceeding 17% of alcohol by weight.
209. ``Tribe'' means the Delaware Nation.
210. ``Tribal Lands'' means the 20 acres of land held in trust by
the United States for the benefit of the Delaware Nation upon which a
gaming facility of the Nation known as Casino Oklahoma exists, with a
street address of 220 East Cummins Road, Hinton, Oklahoma 73047, more
specifically described as:
BEGINNING at a point on the South line of the said SE/4, 471.01
feet South 88[deg]15'07'' East of the Southwest corner of the SE/4 of
Section 10, Township 12 North, Range 11 West of the Indian Meridian,
Caddo County, Oklahoma;
THENCE North 00[deg]18'48'' West 390 feet from and parallel with
the East Right-of-Way line of Highway 281, a distance of 363.00 feet;
THENCE South 89[deg]45'00: West 139.50 feet, to a point 250.50 feet
East of said East Right-of-Way line;
THENCE North 0[deg]18'48'' West, parallel with said East Right-of-
Way, a distance of 741.86 feet to a point 275.50 feet East of said
Right-of-Way 330.00 feet East of the West line of said SE/4'
THENCE North 0[deg]15'00'' West 330.00 feet from and parallel with
the West line of said SE/4 a distance of 1146.84 feet to the South
Right-of-Way line of Interstate 40;
THENCE North 69[deg]19'39'' East along said South Right-of-Way line
a distance of 253.10 feet;
THENCE South 89[deg]50'51'' East along said Right-of-Way line a
distance of 161.07 feet;
THENCE South 0[deg]15'00'' East parallel with the West line of said
SE/4, a distance of 2347.87 feet to the South line of said SE/4;
THENCE North 88[deg]15'07'' West along said South line a distance
of 257.69 feet to the point of beginning, containing an area of 871,200
square feet or 20.00 acres, more or less.
Any lands Delaware Nation has been granted permanent use.
211. ``Trust Agent'' means the Nation's Tax Commission or its
designee.
212. ``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 (17%) of alcohol by weight, including sweet
wines fortified with wine spirits such as port, sherry, muscatel and
angelica, not exceeding seventeen percent (17%) of alcohol by weight.
Powers of Enforcement:
301. Powers. The Executive Committee, in furtherance of this
Alcohol 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
Land;
b. To employ managers, accountants, security personnel, inspectors,
and such other persons as shall be reasonably necessary to allow the
Executive Committee to perform its functions;
c. To issue licenses permitting the sale or manufacture or
distribution of Alcohol within the Tribal Lands;
d. To bring suit in the appropriate court to enforce this Alcohol
Ordinance as necessary;
e. To determine and seek damages for violation of this Alcohol
Ordinance;
f. To make reports to the General Council;
g. To collect taxes and fees levied or set by the Executive
Committee, and to keep accurate records, books, and accounts;
h. To exercise such other powers as authorized by Tribal law; and
i. To delegate authorities under this Alcohol Ordinance to
Subcommittees, Commissions, or Boards.
302. Limitation on Powers. In the exercise of its powers and duties
under this Alcohol Ordinance, the Executive Committee as a whole and
its individual members shall not accept any gratuity, compensation or
other thing of value from any Alcohol wholesaler, retailer, distributor
or licensee.
303. Inspection Rights. The premises on which Alcohol is sold or
distributed shall be open for inspection by an authorized designee at
all reasonable times, which includes the hours the business is open to
the public, for the purposes of ascertaining whether this Alcohol
Ordinance and the rules and regulations implementing this Alcohol
Ordinance are being followed.
Sales of Alcohol:
401. Tribal Alcohol License Required; Tribally-Owned Businesses. No
sale of Alcoholic Beverages shall be made on Tribal Land, except at a
Tribally-licensed or Tribally-owned business.
[[Page 35132]]
Nothing in this section shall prohibit a Tribal licensee or the Nation
from purchasing Alcohol from a source outside the Nation's jurisdiction
for resale on Tribal Lands, or the delivery to the Nation or a Tribal
licensee of Alcohol purchased from sources outside Tribal Lands for
resale within the Tribal Lands. Each location shall obtain and maintain
a Tribal license from the Executive Committee, or its designee, for the
sale of Alcohol. Such license may be for the sale of Alcohol for off-
premises or on-premises consumption.
402. Sale only on Tribal Land. All Alcohol Sales shall be on Tribal
Land, including leases thereon.
403. Sales for Cash. All Alcohol sales 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 credit cards.
404. Sale for Personal Consumption. Resale of any Alcoholic
Beverage purchased within the Tribal Lands is prohibited. Any person
who is not licensed pursuant to this Alcohol Ordinance who purchases an
Alcoholic Beverage on Tribal Land and sells it, whether in the original
container or not, shall be guilty of a violation of this Alcohol
Ordinance and shall be subject to paying damages to the Nation as set
forth herein.
Licensing:
501. Tribal Alcohol License Requirements. A Tribal license shall be
issued under this Alcohol Ordinance by a designee of the Executive
Committee upon proof of the following:
a. Satisfactory proof that the applicant is or will be duly
licensed by the State of Oklahoma to sell Alcoholic Beverages;
b. Acceptance of a Tribal Alcohol License expresses acceptance of
all conditions of the Tribal license.
502. Temporary Permits. The licensing designee may grant a
temporary permit for the sale of Alcohol 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 503 of this Ordinance shall be observed by the permittee and
the permittee shall have a valid Oklahoma ABLE Commission license.
503. Conditions of a Tribal Alcohol License. Any Tribal Alcohol
license issued under this Alcohol Ordinance shall be subject to such
reasonable conditions as the Executive Committee or its designee shall
fix including but not limited to the following:
a. The license shall be for a term to coincide with the applicant's
Oklahoma ABLE Commission license.
b. 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, Oklahoma, or Tribal law.
c. The licensed premises shall be open to inspection by duly
authorized Tribal officials at all times during the regular business
hours.
d. No Alcohol 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 Oklahoma.
e. All acts and transactions under authority of the Tribal Alcohol
license shall be in conformity with the laws of the State of Oklahoma,
with this Alcohol Ordinance, with any applicable Tribal rules and
regulations, and with any Tribal Alcohol license issued pursuant to
this Alcohol Ordinance.
f. No person under the age permitted under the laws of the State of
Oklahoma shall be sold, served, delivered, given, or allowed to consume
Alcoholic Beverages in the licensed establishment or area.
g. There shall be no discrimination in the operations under the
Tribal license by reason of sex, race, color, or creed, provided that
Tribal licensees may adopt Tribal or Indian preference policies.
504. License Not a Property Right. Notwithstanding any other
provision of this Alcohol Ordinance, a Tribal Alcohol license is a mere
permit for a fixed duration of time. A Tribal Alcohol license shall not
be deemed a property right or vested right of any kind, nor shall the
granting of a Tribal Alcohol license give rise to a presumption of
legal entitlement to a license or permit in a subsequent time period.
505. Assignment or Transfer. No Tribal license issued under this
Alcohol Ordinance shall be assigned or transferred without the prior
written approval of the Executive Committee expressed by formal
resolution.
Civil Violations:
601. Sale or Possession With Intent to Sell Without a Permit. Any
person who shall sell or offer for sale or distribute or transport in
any manner, any Alcohol in violation of this Alcohol Ordinance, or who
shall operate or shall have Alcohol in his or her possession with
intent to sell or distribute without a license or permit, shall be
guilty of a violation of this Alcohol Ordinance.
602. Purchases From Other Than Licensed or Allowed Facilities. Any
person who, within the Tribal Lands, buys Alcohol from any person other
than at a properly licensed or allowed facility shall be guilty of a
violation of this Alcohol Ordinance.
603. Consuming Alcohol in Public Conveyance. Any person engaged
wholly or in part in the business of carrying passengers for hire, and
every agent, servant or employee or such person who shall knowingly
permit any person to drink any Alcohol in any public conveyances shall
be guilty of an offense. Any person who shall drink any Alcohol in a
public conveyance shall be guilty of a violation of this Alcohol
Ordinance.
604. Consumption or Possession of Alcohol by Persons Under 21 Years
of Age. No person under the age of 21 years shall consume, acquire, or
have in his or her possession any Alcohol. An employee of a tribally
licensed facility age 18 to 20 with a valid ABLE license is permitted
to transport alcohol for the purpose of serving customers. No person
shall permit any other person under the age of 21 to consume Alcohol on
his or her premises or any premises under his or her control except in
those situations set out in this section. Any person violating this
section shall be guilty of a separate violation of this Alcohol
Ordinance for each and every drink so consumed.
605. Sales of Alcohol to Persons Under 21 Years of Age. Any person
who shall sell or provide Alcohol to any person under the age of 21
years shall be guilty of a violation of this Alcohol Ordinance for each
sale or drink provided.
606. 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 Alcohol shall be guilty of an offense;
provided, that corroborative testimony of witness other than the minor
shall be a requirement of finding a violation of this Alcohol
Ordinance.
607. 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 guilty of violating this Alcohol
Ordinance.
608. Acceptable Identification. Where there may be a question of a
person's right to purchase Alcohol by reason of his or her age, such
person shall be required to present any one of the following cards of
identification which is not expired and shows his or her correct age
and bears his or her signature and photograph: (1) A State-
[[Page 35133]]
issued ID; (2) United States active duty military; (3) a passport, or
(4) a Tribal enrollment or identification card issued by any federally-
recognized Indian Nation.
609. Violations of this Alcohol Ordinance. Any person guilty of a
violation of this Ordinance shall be liable to pay the Nation a civil
fine not to exceed $1,000 per violation as civil damages to defray the
Nation's cost of enforcement of this Alcohol Ordinance. In addition to
any penalties so imposed, any license or permit issued hereunder may be
suspended or canceled by the licensing designee for the violation of
any of the provisions of this Alcohol Ordinance. This suspension and/or
cancellation may be appealed in the Delaware Nation Court. The
appellant shall be responsible for any filing fee and/or court costs
associated with any appeal.
610. Possession of Alcohol Contrary to This Alcohol Ordinance.
Alcohol possessed contrary to the terms of this Alcohol Ordinance are
declared to be contraband. Any Tribal agent, employee, or officer who
is authorized by the Executive Committee to enforce this section shall
have the authority to, and shall, seize all contraband.
611. Disposition of Seized Contraband. Any officer seizing
contraband shall preserve the contraband in accordance with appropriate
law. Upon being found in violation of this Alcohol Ordinance by the
Executive Committee, the party shall forfeit all right, title and
interest in the items seized which shall become the property of the
Nation.
Taxes:
701. Sales Tax. There is hereby levied and shall be collected a tax
on each sale of Alcoholic Beverages on Tribal Land in the amount
determined by the Executive Committee. The tax imposed by this section
shall apply to all retail sales of Alcohol on Tribal Lands and shall
preempt any tax imposed on such Alcohol sales by the State of Oklahoma.
702. Payment of Taxes to Nation. Tribal taxes from the sale of
Alcoholic Beverages or on Tribal Lands shall be paid over to the Trust
Agent of the Nation.
703. Taxes Due. Tribal taxes from the sale of Alcoholic Beverages
on Tribal Lands are due within thirty (30) days of the end of the
calendar quarter for which the taxes are due.
704. Reports. Along with payment of the taxes imposed herein, the
taxpayer shall submit an accounting for the quarter of all income from
the sale or distribution of Alcoholic Beverages and as well as for the
taxes collected.
705. 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 and on Tribal Lands. Said review or
audit may be done annually by authorized agents or employees whenever,
in the opinion of the Executive Committee, such a review or audit is
necessary to verify the accuracy of reports.
Profits:
801. Disposition of Proceeds. The gross proceeds collected by the
Executive Committee or its designee from all licensing provided under
this Alcohol 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 operation and its activities.
b. The remainder shall be turned over to the Trust Agent.
Severability and Miscellaneous:
901. Severability. If any provision or application of this Alcohol
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.
902. Prior Enactments. Any and all prior ordinances, resolutions or
enactments of the Executive Committee which are inconsistent with the
provisions of this Alcohol Ordinance are hereby repealed.
903. Conformance with Tribal, State, and Federal Law. This
Ordinance conforms with all Tribal law and governing documents. All
provisions and transactions under this Ordinance shall be in conformity
with Oklahoma State law regarding the sale of Alcoholic Beverages and
to the extent required by 18 U.S.C. Sec. [thinsp]1161, provided that
Sec. [thinsp]1161 shall not be deemed to waive Tribal sovereign
immunity in any respect, and with all Federal laws regarding alcohol in
Indian country.
904. Enforcement. All actions to enforce the provisions of this
Ordinance brought by the Executive Committee or its designee shall be
filed in the Delaware Nation Court or Court of competent jurisdiction
for the Delaware Nation of Oklahoma, which shall have exclusive
jurisdiction over the enforcement and interpretation of this Ordinance.
905. Effective Date. This Ordinance becomes effective as of the
date the Secretary of the Interior certifies the Ordinance and
publishes it in the Federal Register.
Amendment:
1001. Amendment or Repeal. This Ordinance may be amended or
repealed by a majority vote of the Executive Committee. Amendments of
this Ordinance will be published in the Federal Register to become
effective.
Sovereign Immunity:
1101. Nothing contained in this Alcohol Ordinance is intended to
nor does in anyway limit, alter, restrict, or waive the Nation's
sovereign immunity from unconsented suit or action. Tribal Alcohol
licensees entitled to assert the defense of Tribal sovereign immunity
shall not be deemed to have waived that immunity in any dram-shop
action in any court, whether Tribal, Federal, or State.
Dram-Shop Actions:
1201. The Delaware Nation Court or Court of competent jurisdiction
for the Delaware Nation shall have exclusive jurisdiction over any
dram-shop action against a Tribal Alcohol licensee.
[FR Doc. 2019-15544 Filed 7-19-19; 8:45 am]
BILLING CODE 4337-15-P
