Winnemucca Indian Colony Liquor Ordinance, 8238-8242 [2024-02351]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs

[Federal Register Volume 89, Number 25 (Tuesday, February 6, 2024)]
[Notices]
[Pages 8238-8242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02351]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

[245A2100DD/AAKC001030/A0A501010.999900]


Winnemucca Indian Colony Liquor Ordinance

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: This notice publishes the liquor ordinance of the Winnemucca 
Indian Colony. The liquor ordinance is to regulate and control the 
possession, sale, manufacture, and distribution of alcohol in 
conformity with the laws of the State of Nevada for the purpose of 
generating new Tribal revenues. Enactment of this ordinance will help 
provide a source of revenue to strengthen Tribal government, provide 
for the economic viability of Tribal enterprises, and improve delivery 
of Tribal government services.

DATES: This code shall become effective February 6, 2024.

FOR FURTHER INFORMATION CONTACT: Ms. Natalie Wabaunsee, Acting Tribal 
Government Officer, Western Regional Office, Bureau of Indian Affairs, 
2600 N. Central Avenue, 4th Floor Mailroom, Phoenix, AZ 85001, 
Telephone: (602) 647-5271 or Oliver Whaley, Director, Office of 
Regulatory Affairs, (202) 738-6065.

SUPPLEMENTARY INFORMATION: Pursuant to the Act of August 15, 1953, Pub. 
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 Winnemucca Indian Colony Council 
duly adopted the Winnemucca Indian Colony Liquor Ordinance on March 14, 
2023.
    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 Winnemucca Indian Colony Council duly 
adopted by Resolution of the Colony Council of the

[[Page 8239]]

Winnemucca Indian Colony of Nevada the Winnemucca Indian Colony Liquor 
Ordinance by Resolution No. 2023-03-013 dated March 14, 2023.

    Bryan Newland,
Assistant Secretary-Indian Affairs.
    The Winnemucca Indian Colony Liquor Ordinance shall read as 
follows:

General Provisions

    Section 26.001 Title. This ordinance shall be known as the 
Winnemucca Indian Colony Liquor Ordinance.
    Section 26.002 Authority. This Ordinance is adopted by the 
Winnemucca Indian Colony Council pursuant to the provisions of 18 
U.S.C.A. Sec.  1161 and Article VI, Section 1(e), (g) (h), (i) and (j) 
of the Constitution of the Winnemucca Indian Colony.
    Section 26.003 Policies.
    1. The introduction, possession and sale of liquor on Indian 
reservations have always been clearly recognized as matters of special 
concern to Indian tribes and to the United States Government. The 
control of liquor on reservations remains exclusively subject to their 
legislative enactments.
    2. Federal law currently prohibits introduction of liquor into 
Indian country, 18 U.S.C.A. Sec.  1155, leaving tribes the decision 
regarding when and to what extent liquor transactions shall be 
permitted. 18 U.S.C.A. Sec.  1161
    3. Present day circumstances make a complete ban on liquor within 
the Winnemucca Indian Colony ineffective and unrealistic. However, a 
need still exists for strict regulation and control over liquor 
transactions within the Winnemucca Indian Colony because of the many 
potential problems associated with the unregulated or inadequately 
regulated sale, possession and consumption of liquor. The Council finds 
that exclusive tribal control and regulation of liquor is necessary to 
achieve maximum economic benefit to the Colony to protect the health 
and welfare of Colony members, and to address specific tribal concerns 
relating to alcohol use on the Colony.
    4. The enactment of a tribal ordinance governing liquor sales on 
the Colony will increase the ability of the tribal government to 
control Colony liquor distribution and possession, and at the same time 
will provide an important source of revenue for the continued operation 
of the tribal government and delivery of tribal governmental services.
    5. In order to provide for increased tribal control over liquor 
distribution and possession on the Colony and to provide for an 
urgently needed additional revenue source, the Council of the 
Winnemucca Indian Colony hereby adopts this Liquor Ordinance.

Winnemucca Indian Colony Liquor Commission

    Section 26.100 Establishment. There is hereby established a 
Winnemucca Indian Colony Liquor Commission. The members of the 
Winnemucca Indian Colony Council shall serve as the Winnemucca Indian 
Colony Liquor Commission.
    Section 26.101 Powers. The Winnemucca Indian Colony Liquor 
Commission shall have the following powers:
    1. Administer this Ordinance by exercising general control, 
management and supervision of all liquor sales, places of sale and 
sales outlets, as well as exercising all powers necessary to accomplish 
the purposes of this Ordinance.
    2. Adopt and enforce rules and regulations in furtherance of the 
purposes of this Ordinance and the performance of administrative 
functions.
    3. Employ such persons as reasonably necessary to allow the 
Commission to perform its duties under this Ordinance.
    4. Bring suit in the appropriate court to enforce the provisions of 
this Ordinance.
    5. The Winnemucca Indian Colony Liquor Commission shall conduct 
business pursuant to this Ordinance at regular of special Council 
meetings and shall keep records of all proceedings of the Winnemucca 
Indian Colony Liquor Commission.
    6. Any person Subject to the provisions of this Ordinance who is 
injured or aggrieved by any final regulations issued by the Winnemucca 
Indian Colony Liquor Commission may petition the Commission for a 
revision of the regulations.
    7. The Winnemucca Indian Colony Council shall have the authority to 
establish by separate Ordinance the Winnemucca Indian Colony Liquor 
Agency. This agency, like Winnemucca Indian Colony Indian Tribal 
Enterprises, shall be constituted as a separate agency and department 
of the Winnemucca Indian Colony with its own charter. The purpose of 
the Winnemucca Indian Colony Liquor Agency shall be to purchase and 
sell liquor for the benefit of the Winnemucca Indian Colony.
    8. The Winnemucca Indian Colony Council may form a corporation or a 
subordinate tribal entity, or a tribal enterprise, to operate off-sale 
or packaged sale of intoxicating beverages, under such license or 
licenses as may be required by law.

Appeals

    Section 26.200 Sovereign Immunity Not Waived. Nothing in this 
Liquor Ordinance is intended or shall be construed as a waiver of the 
sovereign immunity of the Winnemucca Indian Colony. The Winnemucca 
Indian Colony does not consent to be sued in any court with respect to 
this Ordinance. No employee or agent of the Winnemucca Indian Colony or 
of the Winnemucca Indian Colony Liquor Commission shall be authorized, 
nor shall he attempt to waive the sovereign immunity of the Tribe.
    Section 26.201 The Challenges to the Validity of This Liquor 
Ordinance. All challenges to the validity of this Liquor Ordinance 
either generally, or as applied to any person, shall be presented to 
the Winnemucca Indian Colony Council. The decision of the Council on 
the matter is final.
    Section 26.202 No Other Actions Created. No private right of action 
by any person or group of persons, either directly against any person 
subject to this Ordinance, or indirectly against any Winnemucca Indian 
Colony Official or body to compel the enforcement of the provisions of 
this Ordinance shall be deemed created by this Ordinance, or be within 
the subject matter jurisdiction of the Winnemucca Indian Colony Tribal 
Court or any other court. No injunction or restraining order shall 
issue from the Winnemucca Indian Colony Tribal Court or any other court 
to enforce the provision of this Ordinance.
    Section 26.203 Severability. If any provision of this Ordinance or 
its application to any person or circumstances is held invalid by a 
final judgment of a court of competent jurisdiction, the invalidity 
shall not affect other provisions or applications which can be given 
effect without the invalid provision or application and to this end the 
provisions of this Ordinance are severable.

Definitions

    Section 26.300 Definitions. As used in this Ordinance, the 
following words shall have the following meanings unless the context 
clearly requires otherwise.
    Section 26.301 ``Alcohol'' defined. ``Alcohol'' is 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 and mixtures of this substance.
    Section 26.302 ``Beer'' defined. ``Beer'' means any beverage 
obtained by the alcoholic fermentation of any infusion or decoction of 
pure hops, or pure extract of hops and pure barley malt or other 
wholesome grain or cereal

[[Page 8240]]

in pure water containing not more than 4% of alcohol by volume. For the 
purpose of this title, any such beverage, including ale, stout and 
porter, containing more than 4% of alcohol by weight shall be referred 
to as ``strong beer.''
    Section 26.303 ``Liquor'' defined. ``Liquor'' includes the four 
varieties of liquor herein defined (alcohol, spirits, wine, and beer) 
and all fermented spiritous, vinous, or malt liquor or combinations 
thereof, and mixed liquor, a part of which is fermented, spiritous, 
vinous, or malt liquor, or otherwise intoxicating; and every liquid or 
solid or semi-solid or other substance, patented or not, containing 
alcohol, spirits, wine, or beer, and all drinks or drinkable liquids 
and all preparations or mixtures capable of human consumption and any 
liquid, semi-solid, solid substance, which contains more than 1% of 
alcohol by weight shall be conclusively deemed to be intoxicating.
    Section 26.304 ``Malt Liquor'' defined. ``Malt Liquor'' means beer, 
strong beer, ale, stout and porter.
    Section 26.305 ``Sale'' and ``Sell'' defined. ``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.
    Section 26.306 ``Spirits'' defined. ``Spirits'' means any beverage 
which contains alcohol obtained by distillation, including wines 
exceeding 17% of alcohol by weight.
    Section 26.307 ``Wine'' defined. ``Wine'' means any alcohol 
beverage obtained by fermentation of fruits (grapes, berries, apples, 
etc.,) or other agricultural products containing sugar to which any 
saccharine substances may have been added before, during or after 
fermentation and containing not more than 17% of alcohol by weight, 
including sweet wines fortified with wine spirits such as port, sherry, 
muscatel and angelica not exceeding 17% of alcohol by weight.

Licensing

    Section 26.400 Tribal License Required. Any person desiring to sell 
liquor within the boundaries of the Winnemucca Indian Colony must first 
obtain a license from the Winnemucca Indian Colony Liquor Commission. 
Every license issued under this Ordinance shall be subject to all 
conditions and restrictions imposed by this Ordinance and by the 
regulations in force from time to time.
    Section 26.401 Application for License. Any person may apply for a 
Winnemucca Indian Colony Liquor License. Application shall be made on 
an approved form provided by the Winnemucca Indian Colony Liquor 
Commission. The application shall be filed with the Secretary of the 
Winnemucca Indian Colony Council. The application shall show the 
following:
    1. Proof satisfactory that the applicant is a person of good moral 
character and reputation.
    2. Proof satisfactory that the applicant is financially 
responsible.
    3. Proof satisfactory that the applicant is over 21 years of age.
    4. The location and description of the premises where the sales 
will take place.
    5. That the applicant agrees to accept and abide by the conditions 
of the Winnemucca Indian Colony Liquor License as set forth in Section 
26.402 of this Ordinance and any other Ordinance or Resolution of the 
Winnemucca Indian Colony Council.
    6. That a fee as set by resolution of the Winnemucca Indian Colony 
Council accompanies the application.
    Section 26.402 Conditions of Winnemucca Indian Colony Liquor 
License. Any Winnemucca Indian Colony Liquor License issued under this 
Ordinance shall be subject to the following conditions:
    1. Licenses shall be issued for one calendar year or the portion 
remaining thereof at the time the license is issued, starting with 
2023.
    2. If the terms of the license or location of the business so 
require, the licensee shall at his own expense, engage some suitable 
person who qualifies as eligible for employment as a law enforcement 
officer to maintain law and order in and about the premises where 
alcohol is sold.
    3. The licensee shall at all times maintain an orderly, clean and 
neat establishment both inside and outside the premise.
    4. All acts and transactions relating to the operating standards of 
the establishment licensed under the authority of the Winnemucca Indian 
Colony Liquor License shall be in conformity with the operating laws of 
the State of Nevada to the extent required by 18 U.S.C.A. Sec.  1161. 
More stringent standards of operation may be imposed upon 30 days-
notice to licensees by duly enacted ordinances of the Council.
    5. The licensed premises shall be subject to inspection during 
reasonable business hours by members of the Winnemucca Indian Colony 
Liquor Commission or authorized representatives in order to ensure that 
the licensee is complying with the terms of tribal ordinances and the 
conditions of the license.
    Section 26.403 Consideration of Application. The Winnemucca Indian 
Colony Liquor Commission may, within its sole discretion, refuse to 
issue a license. The Commission may, within its sole discretion and 
subject to this Ordinance, issue a license. For purposes of considering 
an application, the Commission may cause an inspection of the premises 
to be made and may inquire into all matters in connection with the 
construction and operation of the premises. Before the Commission shall 
issue a license, it shall give due consideration to the location of the 
business to be conducted under such license.
    Section 26.404 Posting. Every licensee shall post and keep its 
license in a conspicuous place on the premises.
    Section 26.405 Fees. License applications must be accompanied by an 
annual fee paid in advance. The Winnemucca Indian Colony Liquor 
Commission shall promulgate regulations establishing the annual fee for 
a Winnemucca Indian Colony Liquor License.
    Section 26.406 Expiration. Unless sooner cancelled, every license 
shall expire at midnight on the 31st day of December of the year in 
which it was issued.
    Section 26.407 Suspension and Cancellation. The Winnemucca Indian 
Colony Liquor Commission may suspend or cancel any license for 
violation of this Ordinance. Upon suspension of cancellation, all 
rights of the licensee to keep or sell liquor thereunder shall be 
suspended or terminated as the case may be. At least ten days prior to 
the cancellation or suspension, the Commission shall provide notice to 
the licensee of its intent to cancel or suspend the license. The 
licensee shall have the right prior to the cancellation or suspension 
date, to apply to the Winnemucca Indian Colony Council for a hearing to 
determine whether the license was rightly suspended or cancelled. The 
decision of the Winnemucca Indian Colony Council on the matter shall be 
final. Upon suspension or cancellation of the license, the licensee 
shall forthwith deliver up the license to the Winnemucca Indian Colony 
Council. Where the license has been suspended only, the Council shall 
return the license to the licensee at the expiration or termination of 
the period of suspension.

[[Page 8241]]

Illegal Activities

    Section 26.500 Declaration. No person shall engage in the 
manufacture or sale of liquor within the boundaries of the Winnemucca 
Indian Colony except in conformity with this Ordinance. No person shall 
engage in the sale or manufacture of liquor within the boundaries of 
the Winnemucca Indian Colony unless duly licensed by the Tribe.
    Section 26.501 Illegal Sale of Liquor by Drink or Bottle. It shall 
be a violation of this Ordinance for any person to sell by the drink or 
bottle any liquor, except as otherwise provided in this Ordinance.
    Section 26.502 Illegal Transportation, Still or Sale without 
Permit. It shall be violation of this Ordinance for any person to sell 
or offer for sale or transport in any manner, any liquor in violation 
of this Ordinance or to operate or have in his possession without a 
permit any mash capable of being distilled into liquor.
    Section 26.503 Illegal Purchase of Liquor. It shall be a violation 
of this Ordinance for any person within the boundaries of the 
Winnemucca Indian Colony to buy liquor from any person other than at a 
store having a Winnemucca Indian Colony Liquor License.
    Section 26.504 Illegal Possession of Liquor, Intent to Sell. It 
shall be a violation of this Ordinance for any person to keep or 
possess liquor upon his person or in any place, or on premises 
conducted or maintained by him as a principal or agent, with the intent 
to sell it contrary to the provisions of this Ordinance.
    Section 26.505 Sales to Persons Apparently Intoxicated. It shall be 
a violation of this Ordinance for any person to sell liquor to a person 
apparently under the influence of liquor.
    Section 26.506 Sale to Minors. It shall be unlawful:
    1. For a licensee or any other person to sell, deliver, give or 
otherwise furnish liquor to any person under the age of 21 years, or 
leave or deposit any such liquor in any place with the intent that the 
same shall be procured by any person under the age of 21 years, or for 
a person under the age of 21 years to buy, receive, have in his 
possession, or consume liquor. It shall be the responsibility of the 
licensee or his employee and of anyone acting in his behalf to 
ascertain that the purchaser of any liquor, either by the drink or by 
the bottle, or any other container is 21 years of age or older.
    2. For a licensee to employ a person under the age of 21 years to 
manufacture, sell or dispose of liquor.
    3. For a licensee to employ a person under the age of 21 years in 
any capacity connected with the handling of liquor.
    4. For a person under 21 years of age to offer or present to a 
licensee, employee or other person a fraudulent or false certificate of 
birth or other written evidence of age which is not actually his own, 
or to otherwise misrepresent his age for the purpose of inducing a 
licensee or employee to give, sell, serve or furnish liquor contrary to 
law.
    5. To influence or attempt to influence the sale, giving or serving 
of liquor to any person under 21 years of age by misrepresenting the 
age of such person or to order, request, receive or procure liquor from 
any licensee, employee or other person for the purpose of selling, 
giving, or serving it to a person under 21 years of age.
    6. For any person under the age of 21 years to buy, sell, give, 
possess, deliver, serve, or to be employed for any of the foregoing or 
to consume any liquor within the exterior boundaries of the Winnemucca 
Indian Colony.
    Section 26.507 Identification--Proof of Minimum Age. 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 officially issued cards of identification which shows correct 
age and bears his or her signature and photograph:
    (1) Liquor Control Authority Card of Identification.
    (2) Driver's License of any State.
    (3) United States Active Duty Military Identification.
    (4) Passport.
    (5) Tribal Identification or Enrollment Card.
    Section 26.508 Defense to Action for Sale to Minors. It shall be a 
defense to a suit for serving liquor to a person under 21 years of age 
if such a person has presented a card of identification as set forth in 
Section 26.507 and the licensee of his employee took reasonable care to 
verify the card of identification.
    Section 26.509 Certain Illegal Activity. The following are 
prohibitions against certain conduct by individuals who consume 
alcohol:
    1. It shall be unlawful to use or consume any alcoholic beverages 
in a motor vehicle while such vehicle is being driven.
    2. It shall be unlawful to possess any open bottle, can, package, 
or container of alcoholic beverage in the passenger compartment of a 
motor vehicle when such vehicle is being driven.
    3. It shall be unlawful for any person actually under the influence 
of alcoholic beverages to possess, use or consume alcoholic beverages.
    4. It shall be unlawful for any person to furnish any alcoholic 
beverage to any person under the age of twenty-one (21) or to leave or 
to deposit any alcoholic beverages with the intent that the alcoholic 
beverages shall be procured by any person under the age of twenty-one 
(21) years.
    5. Any Indian who violates any of the provisions of this ordinance 
shall be deemed guilty of an offense and upon conviction thereof shall 
be punished by a fine of not more than $50 or by imprisonment of not 
more than ten (10) days or both such fine and imprisonment: Provided, 
however, that any person under the age of eighteen (18) years may, in 
the discretion of the judge, be treated as a juvenile and have the 
charge(s) disposed of pursuant to applicable juvenile law and 
procedures.

Penalties

    Section 26.600 Civil Fine. Any person or entity selling, bartering 
or manufacturing liquor without a tribal license or otherwise violating 
this Ordinance shall be subject to a civil fine of not more than 
$500.00 for each violation. The Winnemucca Indian Colony Council may 
adopt by resolution a schedule of lesser fines for each type of 
violation taking into account its seriousness and the threat it may 
pose to the general health and welfare of tribal members.
    Section 26.601 Criminal Penalties. Any person or entity subject to 
criminal prosecution by the Winnemucca Indian Colony who sells, barters 
or manufactures liquor without a Winnemucca Indian Colony Liquor 
License shall be subject to a fine of not more than $500.00 and/or six 
months imprisonment for each separate violation at the discretion of 
the Tribal Court and pursuant to all appropriate provisions of the Law 
and Order Code of the Winnemucca Indian Colony. The penalties provided 
herein shall be in addition to any criminal penalties which may be 
imposed by the provisions of the Winnemucca Indian Colony Law and Order 
Code.
    1. In no event shall the same person or entity be subject to both 
civil and criminal sanctions simultaneously.
    2. The Federal Indian liquor laws remain applicable to any act or 
transaction which is not authorized by this Ordinance and violators of 
this Ordinance may be subject to federal

[[Page 8242]]

prosecution as well as legal action in accordance with Tribal Law.
    Section 26.602 Illegal Items Declared Contraband. All liquor within 
the Colony held, owned or possessed by any person or liquor outlet 
operating in violation of this Ordinance is hereby declared to be 
contraband and subject to forfeiture to the Tribe. Upon application of 
the Tribe, the Tribal Court Judge shall issue an order directing the 
appropriate law enforcement office to seize contraband liquor within 
the Winnemucca Indian Colony and deliver it to the Winnemucca Indian 
Colony Council. A copy of the Court Order shall be delivered to the 
person from whom the property was seized.
    1. Within two weeks following the seizure of the contraband, a 
hearing shall be held in Tribal Court at which time the owner or 
operator of the contraband shall be given an opportunity to present 
evidence in defense of his or her activities.
    2. Adequate notice of the hearing shall be given to the person from 
whom the property was seized, if known. If the person is unknown, 
notice of the hearing shall be posted at the place where the contraband 
was seized and at some other public place. The notice shall describe 
the property seized and the time, place and cause of seizure, and give 
the name and place of residence, if known, of the person from whom the 
property was seized.
    3. If, upon the hearing, the evidence warrants or no person appears 
as the claimant, the Tribal Court shall thereupon enter a judgment of 
forfeiture and order such articles turned over to the Winnemucca Indian 
Colony Council for disposition.
    Section 26.603 Injunctive Relief. The Tribal Court may, in addition 
to other penalties set forth in this Ordinance, grant such other relief 
as is necessary and proper to enforce this Ordinance including but not 
limited to injunctive relief against acts in violation of this 
Ordinance.
    Section 26.604 Exclusion. Any person not a member of the Winnemucca 
Indian Colony who shall be found in violation of this Ordinance shall 
be subject to exclusion from the Winnemucca Indian Colony at the 
discretion of the Tribal Council.

Miscellaneous Provisions

    Section 26.700 Jurisdiction. The jurisdiction of this ordinance 
shall extend to all activities conducted within the exterior boundaries 
of the Winnemucca Indian Colony except activities conducted on rights 
of way through the Winnemucca Indian Colony. Nothing in this Ordinance 
shall be construed to require or authorize the criminal trial and 
punishment by the Winnemucca Indian Colony Tribal Court of any non-
Indian except to the extent allowed by any applicable present or future 
act of Congress or any applicable decision of a United States Federal 
Court.
    Section 26.701 Taxation. The Winnemucca Indian Colony Council shall 
have the authority, through separate ordinance, to levy and collect a 
tax on each retail sale of liquor within the exterior boundaries of the 
Winnemucca Indian Colony. Any tax imposed by the Council shall apply to 
all retail sales of liquor on the Colony.
    Section 26.702 Application of 18 U.S.C.A. Sec.  1161. All liquor 
transactions within the Winnemucca Indian Colony shall conform to this 
Ordinance and to the laws of the State of Nevada to the extent required 
by 18 U.S.C.A. Sec.  1161.
    Section 26.703 Amendments. All provisions of this Ordinance are 
subject to proper revision, repeal or amendment in accordance with the 
Constitution and By-Laws of the Winnemucca Indian Colony.
    Section 26.704 Effective Date. This Ordinance shall be effective on 
such date as the Secretary of the Interior certifies this Ordinance and 
publishes the same in the Federal Register.

[FR Doc. 2024-02351 Filed 2-5-24; 8:45 am]
BILLING CODE 4337-15-P