[Federal Register Volume 61, Number 176 (Tuesday, September 10, 1996)]
[Notices]
[Pages 47763-47766]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23042]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Modoc Tribe of Oklahoma Liquor Control Ordinance

Agency: Bureau of Indian Affairs, Interior.

Action: Notice.

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SUMMARY: This Notice is published in accordance with authority 
delegated by the Secretary of the Interior to the Assistant Secretary--
Indian Affairs by 209 DM 8, and in accordance with the Act of August 
15, 1953, 67 Stat. 586, 18 U.S.C. Sec. 1161, as interpreted by the U.S. 
Supreme Court in Rice v. Rehner, 463 U.S. 713 (1983). I certify that 
Resolution No. 95-22, the Modoc Tribe of Oklahoma Liquor Control 
Ordinance, was duly adopted by the Elected Council of the Modoc Tribe 
of Oklahoma on September 7, 1995. The Ordinance provides for the 
regulation and control of the possession and sale of liquor on Modoc 
Tribe trust lands.

DATES: This Ordinance is effective as of September 10, 1996.

FOR FURTHER INFORMATION CONTACT: Bettie Rushing, Division of Tribal 
Government Services, 1849 C Street, NW, MS 4641-MIB, Washington, D.C., 
20240-4001; telephone (202) 208 - 4400.

SUPPLEMENTARY INFORMATION: The Modoc Tribe of Oklahoma Liquor Control 
Ordinance is to read as follows:

Liquor Control Ordinance of the Modoc Tribe of Oklahoma

Chapter I--Introduction

    Section 101. Title. This ordinance shall be known as the ``Modoc 
Tribe Liquor Ordinance.''
    Section 102. Authority. This ordinance is enacted pursuant to the 
Act of August 15, 1953, 67 Stat. 586, codified at 18 U.S.C. Section 
1161, and by the authority of the Modoc Tribe Elected Council.
    Section 103. Purpose. The purpose of this ordinance is to regulate 
and control the possession and sale of liquor on the Modoc Tribe Trust 
Land. The enactment of a tribal ordinance governing liquor possession 
and sale will increase the ability of the Tribal government to control 
the sale, distribution, and possession of liquor on the Modoc Tribe 
Trust Lands, and will provide an important source of revenue for the 
continued operation and strengthening of the tribal government and the 
delivery of tribal government services.
    Section 104. Effective Date. This ordinance shall be effective on 
certification by the Secretary of the Interior and its publication in 
the Federal Register.

Article 1. Declaration of Public Policy and Purpose

    (a) The introduction, possession, and sale of liquor on the Modoc 
Tribe Trust Land is a matter of special concern to the Modoc Tribe.
    (b) Federal law currently prohibits the introduction of liquor into 
Indian Country (18 U.S.C. Section 1154), except as provided therein and 
expressly delegates to the tribes the decision regarding when and to 
what extent liquor transactions shall be permitted, 18 U.S.C. Section 
1161.
    (c) The Modoc Tribe Elected Council finds that a complete ban on 
liquor within the Modoc Tribe Trust Land is ineffective and 
unrealistic. However, it recognizes that a need still exists for strict 
regulation and control over liquor transactions within the Modoc Tribe 
Trust Land, because of the many potential problems associated with the 
unregulated or inadequately regulated sale, possession, distribution, 
and consumption of liquor. The Modoc Tribe Elected Council finds that 
exclusive tribal control and regulation of liquor is necessary to 
achieve maximum economic benefit to the Tribe, to protect the health 
and welfare of tribal members, and to address specific concerns 
relating to alcohol use on the Modoc Tribe Trust Land.
    (d) It is in the best interests of the Tribe to enact a tribal 
ordinance governing liquor sales on the tribal lands and which provides 
for exclusive purchase, distribution, and sale of liquor only on tribal 
lands within the exterior boundaries of the Modoc Tribe Trust Land. 
Further, the Tribe has determined that said purchase, distribution, and 
sale shall take place only at tribally-owned enterprises and/or 
tribally-licensed establishments operating on land leased from or 
otherwise owned by the Tribe.

Article II. Definitions

    As used in this title, 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, ethanol, or spirits of wine, from whatever 
source or by whatever process produced.
    (b) ``Alcoholic Beverage'' is synonymous with the term ``liquor'' 
as defined in Article 11 (f) of this Chapter.
    (c) ``Bar'' means any establishment with special space and 
accommodations for the sale of liquor by the glass and for consumption 
on the premises as herein defined.
    (d) ``Beer'' means any beverage obtained by the alcoholic 
fermentation of an infusion or decoction of pure hops, or pure extract 
of hops and pure barley malt or other wholesome grain or cereal in pure 
water and containing the percent of alcohol by volume subject to 
regulation as an intoxicating beverage in the state where the beverage 
is located.

[[Page 47764]]

    (e) ``Elected Council'' means the Modoc Tribe Elected Council.
    (f) ``Liquor'' includes all fermented, spirituous, vinous, or malt 
liquor or combinations thereof, and mixed liquor, a part of which is 
fermented, and every liquid or solid or semisolid or other substance, 
patented or not, containing distilled or rectified spirits, potable 
alcohol, beer, wine, brandy, whiskey, rum, gin, aromatic bitters, and 
all drinks or drinkable liquids and all preparations or mixtures 
capable of human consumption and any liquid, semisolid, solid, or other 
substances, which contains more than one half of one percent of 
alcohol.
    (g) ``Liquor Store'' means any store at which liquor is sold and, 
for the purpose of this ordinance, including stores only a portion of 
which are devoted to the sale of liquor or beer.
    (h) ``Malt Liquor'' means beer, strong beer, ale, stout and porter.
    (i) ``Package'' means any container or receptacle used for holding 
liquor.
    (j) ``Public Place'' includes state or county or tribal or federal 
highways or roads; buildings and grounds used for school purposes; 
public dance halls and grounds adjacent thereto; soft drink 
establishments, public buildings, public meeting halls, lobbies, halls 
and dining rooms of hotels, restaurants, theaters, gaming facilities, 
entertainment centers, stores, garages, and filling stations which are 
open to and/or are generally used by the public and to which the public 
is permitted to have unrestricted access; public conveyances of all 
kinds and character; and all other places of like or similar nature to 
which the general public has unrestricted right of access, and which 
are generally used by the public. For the purpose of this ordinance, 
``Public Place'' shall also include any establishment other than a 
single family home which is designed for or may be used by more than 
just the owner of the establishment.
    (k) ``Sale'' and ``Sell'' include exchange, barter and traffic; and 
also includes fhe selling or supplying or distributing, by any means 
whatsoever, of liquor, or of any liquid known or described as beer or 
by any name whatsoever commonly used to describe malt or brewed liquor 
or of wine by any person to any person.
    (l) ``Spirits'' means any beverage, which contains alcohol obtained 
by distillation, including wines exceeding seventeen percent of alcohol 
by weight.
    (m) ``Wine'' means any alcoholic beverage obtained by fermentation 
of the natural contents of fruits, vegetables, honey, milk, or other 
products containing sugar, whether or not other ingredients are added, 
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.
    (n) ``Modoc Tribe Council'' means the general council of the Modoc 
Tribe which is composed of the voting membership of the Tribe.
    (o) ``Modoc Tribe Trust Land'' means those lands which are held in 
trust by the United States for the Modoc Tribe and not for any 
individual Indian.

Article III. Powers of Enforcement

    Section 1. The Elected Council. In furtherance of this ordinance, 
the Elected Council shall have the following powers and duties:
    (a) To publish and enforce rules and regulations adopted by the 
Elected Council governing the sale, manufacture, distribution, and 
possession of alcoholic beverages on the Modoc Tribe Trust Land;
    (b) To employ managers, accountants, security personnel, inspectors 
and such other persons as shall be reasonably necessary to allow the 
Elected Council to perform its functions. Such employees shall be 
tribal employees;
    (c) To issue licenses permitting the sale or manufacture or 
distribution of liquor on Modoc Tribe Trust Land;
    (d) To hold hearings on violations of this ordinance or for the 
issuance or revocation of licenses hereunder;
    (e) To bring suit in the appropriate court to enforce this 
ordinance as necessary;
    (f) To determine and seek damages for violations of the ordinance;
    (g) To make such reports as may be required by the Modoc Tribe 
Council;
    (h) To collect taxes and fees levied or set by the Elected Council 
and to keep accurate records, books, and accounts.
    Section 2. Limitations on Powers. In the exercise of its powers and 
duties under this ordinance, the Elected Council and its individual 
members shall not:
    (a) Accept any gratuity, compensation or other thing of value from 
any liquor wholesaler, retailer, or distributor or from any licensee;
    (b) Waive the immunity of the Modoc Tribe from suit without the 
express consent of the Elected Council.
    Section 3. Inspection Rights. The premises on which liquor is sold 
or distributed shall be open for inspection by the Elected Council at 
all reasonable times for the purpose of ascertaining whether the rules 
and regulations of the Elected Council and this ordinance are being 
complied with.

Article IV. Sales of Liquor

    Section 1. License Required. Sales of liquor and alcoholic 
beverages within the exterior boundaries at Modoc Tribe Trust Land may 
only be made at businesses which hold a Modoc Tribe Liquor License.
    Section 2. Sales for Cash. All liquor sales within the Modoc Tribe 
Trust Land boundaries 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 payment for purchases with the use of 
credit cards such as Visa, MasterCard, American Express, etc.
    Section 3. Sale for Personal Consumption. All sales shall be for 
the personal use and consumption of the purchaser. Resale of any 
alcoholic beverage purchased within the exterior boundaries of the 
Modoc Tribe Trust Land is prohibited. Any person who is not licensed 
pursuant to this ordinance who purchases an alcoholic beverage within 
the boundaries of the Modoc Tribe Trust Land and sells it, whether in 
the original container or not, shall be guilty of a violation of this 
ordinance and shall be subject to paying damages to the Modoc Tribe as 
set forth herein.

Article V. Licensing

    Section 1. Procedure. In order to control the proliferation of 
establishments on the Modoc Tribe Trust Land which sell or serve liquor 
by the bottle or by the drink, all persons or entities which desire to 
sell liquor within the exterior boundaries of the Modoc Tribe Trust 
Land must apply to the Modoc Tribe for a license to sell or serve 
liquor.
    Section 2. Application. Any person or entity applying for a license 
to sell or serve liquor on the Modoc Tribe Trust Land must fill in the 
application provided for this purpose by the Modoc Tribe and pay such 
application fee as may be set from time to time by the Elected Council 
for this purpose. Said application must be filled out completely in 
order to be considered.
    Section 3. Issuance of License. The Elected Council may issue a 
license if it believes that such issuance is in the best interests of 
the Modoc Tribe and its members.
    Section 4. Period of License. Each license may be issued for a 
period not to exceed two (2) years from the date of issuance.
    Section 5. Renewal of License. A licensee may renew its license if 
the licensee has complied in full with this ordinance provided however, 
that the Elected Council may refuse to renew a license if it finds that 
doing so would

[[Page 47765]]

not be in the best interests of the health and safety of the Modoc 
Tribe.
    Section 6. Revocation of License. The Elected Council may revoke a 
license for reasonable cause upon notice and hearing at which the 
licensee is given an opportunity to respond to any charges against it 
and to demonstrate why the license should not be suspended or revoked.
    Section 7. Transferability of License. A license issued by the 
Elected Council shall not be transferable and may only be utilized by 
the person or entity in whose name it was issued.

Article VI. Taxes

    Section 1. Sales Tax. There is hereby levied and shall be collected 
a tax on each retail sale of liquor or alcoholic beverage on the Modoc 
Tribe Trust Land in the amount of three percent (3%) of the retail 
sales price. All taxes from the sale of liquor and alcoholic beverages 
on the Modoc Tribe Trust Land shall be paid over to the General 
Treasury of the Modoc Tribe.
    Section 2. Taxes Due. All taxes for the sale of liquor and 
alcoholic beverages on the Modoc Tribe Trust Land are due on the 15th 
day of the following month.
    Section 3. Delinquent Taxes. Past due taxes shall accrue interest 
at 2% per month.
    Section 4. Reports. Along with payment of the taxes imposed herein, 
the taxpayer shall submit a monthly accounting of all income from the 
sale or distribution of liquor, 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 liquor and alcoholic beverages on the Modoc 
Tribe Trust Land. Said review or audit may be done periodically by the 
Tribe through its agents or employees whenever, in the opinion of the 
Elected Council, such a review or audit is necessary to verify the 
accuracy of reports.

Article VII. Rules, Regulations, and Enforcement

    Section 1. In any proceeding under this ordinance, conviction of 
one unlawful sale or distribution of liquor shall establish prima facie 
intent of unlawfully keeping liquor for sale, selling liquor or 
distributing liquor in violation of this ordinance.
    Section 2. Any person who shall sell or offer for sale or 
distribute or transport in any manner, liquor in violation of this 
ordinance, or who shall operate or shall have liquor for sale in his 
possession without a license, shall be guilty of a violation of this 
ordinance subjecting him or her to civil damages assessed by the 
Elected Council.
    Section 3. Any person within the boundaries of the Modoc Tribe 
Trust Land who buys liquor from any person other than a properly 
licensed facility shall be guilty of a violation of this ordinance.
    Section 4. Any person who keeps or possesses liquor upon his person 
or in any place or on premises conducted or maintained by his principal 
or agent with the intent to sell or distribute it contrary to the 
provisions of this title, shall be guilty of a violation of this 
ordinance.
    Section 5. Any person who knowingly sells liquor to a person under 
the influence of liquor shall be guilty of a violation of this 
ordinance.
    Section 6. Any person engaging wholly or in part in the business of 
carrying passengers for hire, and every agent, servant, or employee of 
such person, who shall knowingly permit any person to drink liquor in 
any public conveyance shall be guilty of an offense. Any person who 
shall drink liquor in a public conveyance shall be guilty of a 
violation of this ordinance.
    Section 7. No person under the age of 21 years shall consume, 
acquire or have in his possession any liquor or 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 guilty of a separate violation of this ordinance for 
each and every drink so consumed.
    Section 8. Any person who shall sell or provide any liquor to any 
person under the age of 21 years shall be guilty of a violation of this 
ordinance for each such sale or drink provided.
    Section 9. Any person who transfers in any manner an identification 
of age to a person under the age of 21 years for the purpose of 
permitting such person to obtain liquor shall be guilty of an offense; 
provided, that corroborative testimony of a witness other than the 
under age person shall be a requirement of finding a violation of this 
ordinance.
    Section 10. Any person who attempts to purchase an alcoholic 
beverage through the use of false or altered identification which 
falsely purports to show the individual to be over the age of 21 years 
shall be guilty of violating this ordinance.
    Section 11. Any person guilty of a violation of this ordinance 
shall be liable to pay the Modoc Tribe the amount of $1,000 per 
violation as civil damages to defray the Tribe's cost of enforcement of 
this ordinance.
    Section 12. When requested by the provider of liquor, any person 
shall be required to present official documentation of the bearers age, 
signature and photograph. Official documentation includes one of the 
following:
    (1) Drivers license or identification card issued by any state 
department of motor vehicles;
    (2) United States Active Duty Military;
    (3) Passport
    Section 13. Liquor which is possessed, including for sale, contrary 
to the terms of this ordinance is declared to be contraband. Any tribal 
agent, employee or officer who is authorized by the Elected Council to 
enforce this section shall seize all contraband and preserve it in 
accordance with the provisions established for the preservation of 
impounded property.
    Section 14. Upon being found in violation of the ordinance, the 
party shall forfeit all right, title and interest in the items seized 
which shall become the property of the Modoc Tribe.

Article VIII. Abatement

    Section 1. Any room, house, building, vehicle, structure, or other 
place where liquor is sold, manufactured, bartered, exchanged, given 
away, furnished, or otherwise disposed of in violation of the 
provisions of this ordinance or of any other tribal law relating to the 
manufacture, importation, transportation, possession, distribution, and 
sale of liquor, and all property kept in and used in maintaining such 
place, is hereby declared to be a nuisance.
    Section 2. The Chief of the Elected Council or, if the Chief fails 
or refuses to do so, by a majority vote, the Elected Council shall 
institute and maintain an action in the name of the Tribe to abate and 
perpetually enjoin any nuisance declared under this article. In 
addition to all other remedies at tribal law, the Court may also order 
the room, house, building, vehicle, structure, or place closed for a 
period of one (1) year or until the owner, lessee, tenant, or occupant 
thereof shall give bond of sufficient sum not less than $25,000 payable 
to the Tribe and conditioned that liquor will not be thereafter 
manufactured, kept, sold, bartered, exchanged, given away, furnished, 
or otherwise disposed of in violation of the provisions of this 
ordinance or of any other applicable tribal law and that he will pay 
all fines, costs and damages assessed against him for any violation of 
this ordinance or other tribal liquor laws. If any conditions of the 
bond be

[[Page 47766]]

violated, the bond may be recovered for the use of the Tribe.
    Section 3. In all cases where any person has been found in 
violation of this ordinance relating to the manufacture, importation, 
transportation, possession, distribution, and sale of liquor, an action 
may be brought to abate as a nuisance any real estate or other property 
involved in the violation of the ordinance and violation of this 
ordinance shall be prima facie evidence that the room, house, building, 
vehicle, structure, or place against which such action is brought is a 
public nuisance.

Article IX. Revenue

    Section 1. Revenue provided for under this ordinance, from whatever 
source, shall be expended for administrative costs incurred in the 
enforcement of this ordinance. Excess funds shall be subject to 
appropriation by the Elected Council for essential governmental and 
social services.

Article X. Severability and Effective Date

    Section 1. If any provision or application of this ordinance is 
determined by review to be invalid, such determination shall not be 
held to render ineffectual the remaining portions of this ordinance or 
to render such provisions inapplicable to other persons or 
circumstances.
    Section 2. 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.
    Section 3. Any and all prior enactments of the Elected Council 
which are inconsistent with the provisions of this ordinance are hereby 
rescinded.

Article XI. Amendment

    This ordinance may only be amended by a majority vote of the 
Elected Council.

    Dated: September 3, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-23042 Filed 9-9-96; 8:45 am]
BILLING CODE 4310-02-P