[Federal Register Volume 64, Number 89 (Monday, May 10, 1999)]
[Notices]
[Pages 25056-25059]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11593]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Elk Valley Rancheria Liquor Licensing 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. 1161, as interpreted by the Supreme 
Court in Rice v. Rehner, 463 U.S. 713 (1983). I certify that the Elk 
Valley Rancheria Liquor Licensing Ordinance was duly adopted and 
certified by Resolution No. 97-16 of the Elk Valley Tribal Council on 
July 9, 1997. The Ordinance provides for the regulation of the sale, 
possession and consumption of liquor in the area of the Susanville 
Indian Rancheria, under the jurisdiction of the Susanville Indian 
Rancheria, and is in conformity with the laws of the State of 
California.

DATES: This ordinance is effective as of May 10, 1999.

FOR FURTHER INFORMATION CONTACT: Jim James, Office of Tribal Services, 
Division of Tribal Government Services, 1849 C Street, NW, MS 4631 MIB, 
Washington, DC 20240-4401; telephone (202) 208-4400.

SUPPLEMENTARY INFORMATION: The Elk Valley Rancheria Liquor Licensing 
Ordinance is to read as follows:

Elk Valley Rancheria Liquor Licensing Ordinance

    An Ordinance of the Tribal Council of the Elk Valley Rancheria 
Regulating the sale, distribution and control of alcoholic beverages on 
the Elk Valley Rancheria.

Chapter 1. General Provisions

    Section 1.1  Declaration of findings. The Tribal Council of the Elk 
Valley Rancheria hereby finds as follows:
    A. Under the Constitution of the Tribe, Article V, Section 1(1), 
the Tribal Council is charged with the duty of protecting the safety 
and welfare of the Elk Valley Rancheria.
    B. The Introduction, possession and sale of alcoholic beverages on 
the Elk Valley Rancheria is a matter of special concern to the tribe.
    C. Federal law leaves to Tribes the decision regarding when and to 
what extent alcoholic beverage transactions shall be permitted on 
Indian reservations.
    D. Present day circumstances make a complete ban on alcoholic 
beverages within the Elk Valley Rancheria ineffective and unrealistic. 
At the same time, a need still exists for strict Tribal regulation and 
control over alcoholic beverage distribution.
    E. The enactment of an Ordinance governing alcoholic beverage sales 
on the Elk Valley Rancheria and providing for the purchase and sale of 
alcoholic beverages through Tribally licensed outlets will increase the 
ability of the Tribal government to control the distribution, sale, and 
possession of liquor on the Elk Valley Rancheria, and at the same time 
will provide an important and urgently needed source of revenue for the 
continued operation of the Tribal government and delivery of Tribal 
governmental services.
    Section 1.2  Declaration of Policy. Under the inherent sovereignty 
of the Tribe, the Elk Valley Rancheria Liquor Licensing Ordinance shall 
be deemed an exercise of the Tribe's power, for the protection of the 
welfare, health, peace, morals, and safety of the people of the Tribe, 
and all its provisions shall be liberally construed for the 
accomplishment of that purpose, and it is declared to be public policy 
that the sale and possession of alcoholic beverages affects the public 
interest of the people, and should be regulated to the extent of 
prohibiting all sale and possession of acholic beverages, except as 
provided in this Ordinance. In order to provide for Tribal control over 
liquor sales and possession within the Reservation, and to provide a 
source of revenue for the continued operation of the Tribal government 
and the delivery of Tribal governmental services, the Tribal Council 
promulgates this Ordinance.
    Section 1.3  Repeal of Prior Liquor Ordinances. To the extent not 
previously repealed, either expressly or by implication, any prior 
Liquor

[[Page 25057]]

Ordinance remaining in effect is hereby expressly repealed.
    Section 1.4  Short Title. This Ordinance shall be known and cited 
as the ``Elk Valley Rancheria Liquor Licensing Ordinance.''
    Section 1.5  Purpose. The purpose of this Ordinance is to prohibit 
the importation, manufacture, distribution and sale of alcoholic 
beverages on the Elk Valley Rancheria, except pursuant to a license 
issued by the Tribal Council under the provisions of this Ordinance.
    Section 1.6  Sovereign Immunity preserved. Nothing in this 
Ordinance is intended or shall be construed as a waiver of the 
sovereign immunity of the Elk Valley Rancheria. No officer or employee 
of the Elk Valley Rancheria is authorized nor shall he/she attempt to 
waive the immunity of the Tribe under the provisions of this ordinance 
unless such officer or employee has express, specific written 
authorization from the Tribal Council.
    Section 1.7  Applicability within the Reservation. This Ordinance 
shall apply to all persons within the exterior boundaries of the Elk 
Valley Rancheria consistent with the applicable federal Indian liquor 
laws.
    Section 1.8  Interpretation and Findings. The Tribal Council, in 
the first instance, may interpret any ambiguities contained in this 
Ordinance.
    Section 1.9  Application of 18 U.S.C. 1161. The importation, 
manufacture, distribution and sale of alcoholic beverages on the Elk 
Valley Rancheria shall be in conformity with this Ordinance and in 
conformity with the laws of the State of California as that phrase or 
term is used in 18 U.S.C. 1161.
    Section 1.10  Severability. If any part or provision of this 
Ordinance or the application thereof to any persons or circumstance is 
held invalid, the remainder of the Ordinance, including the application 
of such part or provision to other persons or circumstances, shall not 
be affected thereby and shall continue in full force and effect. To 
this end the provisions of this Ordinance are severable.
    Section 1.11  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.

Chapter 2. Definitions

    Section 2.1  Interpretation. In construing the provisions of this 
Ordinance, the following words or phrases shall have the meaning 
designated unless a different meaning is expressly provided or the 
context clearly indicates otherwise.
    Section 2.2  Alcohol. ``Alcohol'' means ethyl alcohol, hydrated 
oxide of ethyl, or spirits of wine, from whatever source or by whatever 
process produced.
    Section 2.3  Alcoholic Beverage. ``Alcoholic beverage'' includes 
all alcohol, spirits, liquor, wine, beer, and any liquid or solid 
containing alcohol, spirits wine or beer, and which contains one half 
of one percent or more of alcohol by volume and which is fit for 
beverage purposes either alone or when diluted, mixed, or combined with 
other substances. It shall be interchangeable in this Ordinance with 
the term ``liquor'.
    Section 2.4  Beer. ``Beer'' means any alcoholic beverage obtained 
by the fermentation of any infusion or decoction of barley, malt, hops, 
or any other similar product, or any combination thereof in water, and 
includes ale, porter, brown, stout, lager beer, small beer, and strong 
beer, and also includes sake, otherwise known as Japanese rice wine.
    Section 2.5  Tribal Council. ``Tribal Council'' means the governing 
body of the Elk Valley Rancheria as provided for under article IV, 
Sect. 1 of the Tribal Constitution.
    Section 2.6  Distilled Spirits. ``Distilled spirits'' means any 
alcoholic beverage obtained by the distillation of fermented 
agricultural products, and includes alcohol for beverage use, spirits 
of wine, whiskey, rum, brandy, and gin, including all dilutions and 
mixtures thereof.
    Section 2.7  Importer. ``Importer'' means any person who introduces 
alcohol or alcoholic beverages into the Elk Valley Rancheria from 
outside the exterior boundaries thereof for the purpose of sale or 
distribution within the Rancheria, provided however, the term importer 
as used herein shall not include a wholesaler licensed by any state or 
tribal government selling alcoholic beverages to a seller licensed by a 
state or tribal government to sell at retail.
    Section 2.8  Liquor License. ``Liquor license'' means a license 
issued by the Tribal Council under the provision of this Ordinance 
authorizing the sale, manufacture, or importation of alcoholic 
beverages on or within the Rancheria, consistent with federal law.
    Section 2.9  Manufacturer. ``Manufacturer'' means any persons 
engaged in the manufacture of alcohol or alcoholic beverages.
    Section 2.10  Person. ``Person'' means any individual, whether 
Indian or non-Indian, receiver, assignee, trustee in bankruptcy, trust, 
estate, firm, partnership, joint venture, corporation, association, 
society, or any group of individuals acting as a unit, whether mutual, 
cooperative, fraternal, non-profit or otherwise, and any other Indian 
tribe, band or group, whether recognized by the United States 
Government or otherwise. The term shall also include the business 
enterprises of the Tribe. It shall be interchangeable in the Ordinance 
with the term ``seller'' or ``licensee.''
    Section 2.11  Rancheria. ``Rancheria'' means all lands within the 
exterior boundaries of the Elk Valley Rancheria and such other lands as 
may hereafter be acquired by the Tribe, whether within or without said 
boundaries, under any grant, transfer, purchase, gift, adjudication, 
executive order, Act of Congress, or other means of acquisition.
    Section 2.12  Sale. ``Sale'' means the exchange of property and/or 
any transfer of the ownership of, title to, or possession of property 
for a valuable consideration, exchange or barter, in any manner or by 
any means whatsoever. It includes conditional sales contracts, leases 
with options to purchase, and any other contract under which possession 
of property is given to the purchaser, buyer, or consumer but title is 
retained by the vendor, retailer, manufacturer, or wholesaler, as 
security for the payment of the purchase price. Specifically, it shall 
include any transaction whereby, for any consideration, title to 
alcoholic beverages is transferred from one person to another, and 
includes the delivery of alcoholic beverages pursuant to an order. The 
term ``sale'' shall also specifically include the transfer of alcoholic 
beverages from one person to another pursuant to a complimentary or 
free beverage policy, promotion, plan, or scheme of the seller.
    Section 2.13  Seller. ``Seller'' means any person who, while within 
the exterior boundaries of the Rancheria, sells, solicits or receives 
an order for any alcohol, alcoholic beverages, distilled spirits, beer, 
or wine.
    Section 2.14  Wine. ``Wine'' means the product obtained from the 
normal alcoholic fermentation of the juice of the grapes or other 
agricultural products containing natural or added sugar or any such 
alcoholic beverage to which is added grape brandy, fruit brandy, or 
spirits of wine, which is distilled from the particular agricultural 
product or products of which the wine is made, and other rectified wine 
products.

Chapter 3. Prohibition of the Unlicensed Sale of Liquor

    Section 3.1  Prohibition of the Unlicensed Sale of Liquor. No 
person shall import for sale, manufacture,

[[Page 25058]]

distribute or sell alcoholic beverages within the Reservation without 
first applying for and obtaining a written license from the Tribal 
Council issued in accordance with the provisions of this Ordinance.
    Section 3.2  Authorization to Sell Liquor. Any person for and 
obtaining a liquor license under the provisions of this Ordinance shall 
have the right to engage only in those liquor transactions expressly 
authorized by such license and only at those specific places or areas 
designated in said license.
    Section 3.3  Types of Licenses. The Tribal Council shall have the 
authority to issue the following types of liquor licenses within the 
Reservation:
    A. ``Retail on-sale general license'' means a license authorizing 
the applicant to sell alcoholic beverages at retail to be consumed by 
the buyer only on the premises or at the location designated in the 
license.
    B. ``Retail on-sale beer and wine license'' means a license 
authorizing the applicant to sell beer and wine at retail to be 
consumed by the buyer only on the premises or at the location 
designated in the license.
    C. ``Retail off-sale general license'' means a license authorizing 
the applicant to sell alcoholic beverages at retail to be consumed by 
the buyer off the premises or at a location other than the one 
designated in the license.
    D. ``Retail off-sale beer and wine license'' means a license 
authorizing the applicant to sell beer and wine at retail to be 
consumed by the buyer off the premises or at a location other than the 
one designated in the license.
    E. ``Manufacturers license'' means a license authorizing the 
applicant to manufacture alcoholic beverages for the purpose of sale on 
the Rancheria.

Chapter 4. Applications for Licenses

    Section 4.1  Application Form and Content. An application for 
licensing under this Ordinance shall be made to the Tribal Council and 
shall contain the following information:
    A. The name and address of the applicant. In the case of a 
corporation, the names and addresses of all of the principal officers, 
directors and stockholders of the corporation. In the case of a 
partnership, the name and address of each partner.
    B. The specific area, location and/or premises for which the 
license is applied for.
    C. The type of liquor license applied for (i.e. retail on-sale 
general license, etc.).
    D. Whether the applicant has a California state liquor license.
    E. A statement by the applicant to the effect that the applicant 
has not been convicted of a felony and has not violated and will not 
violate or cause or permit to be violated any of the provisions of this 
Ordinance or any of the provisions of the California Alcoholic Beverage 
Control Act.
    F. The signature and fingerprint of the applicant. In the case of a 
partnership, the signature and fingerprint of each partner. In the case 
of a corporation, the signature and fingerprint of each of the officers 
of the corporation under the seal of the corporation. In the case of a 
tribal business enterprise, the signature and fingerprint of the 
officers of the enterprise or any persons maintaining day-to-day 
control and management of the enterprise, whichever is applicable.
    G. The application shall be verified under oath, notarized and 
accompanied by the license fee required by this Ordinance.
    Section 4.2  Fee Accompany Application. The Tribal Council shall by 
resolution establish a fee schedule for the issuance, renewal and 
transfer of the following types of licenses:
    A. Retail on-sale general license;
    B. Retail on-sale beer and wine license;
    C. Retail off-sale general license;
    D. Retail off-sale beer and wine license; and E. Manufacturers 
license.
    Section 4.3  Investigation. Upon receipt of an application for the 
issuance, transfer or renewal of a license and the application fee 
required herein, the Tribal Council shall make a thorough investigation 
to determine whether the applicant and the premises for which a license 
is applied for qualify for a license and whether the provisions of the 
Ordinance have been complied with, and shall investigate all matters 
connected therewith which may affect the health, safety and welfare of 
the Tribe.
    Section 4.4  Denial of Application. An application shall not be 
denied, except for good cause. However, the Tribal Council shall deny 
an application for issuance, renewal, or transfer of a license if 
either the applicant or the proposed premises:
    A. has not complied with application procedures;
    B. does not meet application requirements;
    C. would tend to create a law enforcement problem;
    D. obtained a license on the basis of false, misleading , or 
misrepresented information; or
    E. fails to qualify for the issuance of findings of the Tribal 
required by Section 5.2 of this Ordinance.

Chapter 5. Issuance, Renewal and Transfer of Licenses

    Section 5.1  Public Hearing. Upon receipt of proper application for 
issuance, renewal or transfer of a license, and the payment of all fees 
required under this Ordinance, the Secretary of the Tribal Council 
shall set the matter for a public hearing. Notice of the time and place 
of the hearing shall be given to the applicant and the public at least 
ten calendar days before the hearing. Notice shall be given to the 
applicant by prepaid U.S. mail at the address listed in the 
application. Notice shall be given to the public by publication in a 
newspaper of general circulation sold on the Rancheria. The notice 
published in the newspaper shall include the name of the applicant and 
the type of license applied for and a general description of the area 
where liquor will be sold. At the hearing, the Tribal Council shall 
hear from any person who wishes to speak for or against the 
application. The Tribal Council shall have the authority to place time 
limits on each speaker and limit or prohibit repetitive testimony.
    Section 5.2  Tribal Council Action on the Application. Within 
thirty (30) days of the conclusion of the public hearing, the Tribal 
Council shall act on the matter. The Tribal Council shall have the 
authority to deny, approve, or approve with conditions the application. 
Before approving the application, the Tribal Council shall find: (1) 
that the applicant has met all procedural requirements of the 
application process; (2) that investigation of the application has not 
produced any information that would disqualify the applicant from 
obtaining a license under this Ordinance; (3) that the site for the 
proposed premises has adequate parking, lighting, security and ingress 
and egress so as not to adversely affect adjoining properties or 
businesses; and (4) that the sale of alcoholic beverages at the 
proposed premises is consistent with the Tribe's Zoning Ordinance.
    Upon approval of an application the Tribal Council shall issue a 
license to the applicant in a form to be approved from time to time by 
the Tribal Council by resolution. All businesses shall post their 
Tribal liquor license issued under the Ordinance in a conspicuous place 
upon the premises where alcoholic beverages are sold, manufactured or 
offered for sale.
    Section 5.3  Multiple Locations. Each license shall be issued to a 
specific person. Separate license shall be issued for each of the 
premises of any business

[[Page 25059]]

establishment having more than one location.
    Section 5.4  Term of License. Temporary license. All licenses 
issued by the Tribal Council shall be issued on a calendar year basis 
and shall be renewed annually; provided, however, that the Tribal 
Council may issue special licenses for the sale of alcoholic beverages 
on a temporary basis for premises temporarily occupied by the licensee 
for a picnic, social gathering or similar occasion at a fee to be 
established by the Tribal Council by resolution.
    Section 5.5  Transfer of Licenses. Each license issued or renewed 
under this Ordinance is separate and distinct and is transferable from 
the licensee to another person and/or from one premises to another 
premises only with the approval of the Tribal Council. The Tribal 
Council shall have the authority to approve, deny or approve with 
conditions any application for the transfer of any license. In the case 
of a transfer to a new person, the application for transfer shall 
contain all of the information required of an original applicant under 
Section 4.1 of this Ordinance. In the case of a transfer to a new 
location, the application shall contain an exact description of the 
location where the alcoholic beverages are proposed to be sold.

Chapter 6. Revocation of Licenses

    Section 6.1  Revocation of License. The Tribal Council shall revoke 
a license upon any of the following grounds:
    A. The misrepresentation of a material fact by an applicant in 
obtaining a license or a renewal thereof.
    B. The violation of any condition imposed by the Tribal Council on 
the issuance, transfer, or renewal of a license.
    C. A plea, verdict, or judgment of guilty, or the plea of nolo 
contendere to any public offense involving moral turpitude under any 
federal or state law prohibiting or regulating the sale, use, 
possession, or giving away of alcoholic beverages or intoxicating 
liquors.
    D. The violation of any tribal Ordinance.
    E. The failure to take reasonable steps to correct objectionable 
conditions on the licenses premises or any immediate adjacent area 
leased, assigned or rented by the licensee constituting a nuisance 
within a reasonable time after receipt of a notice to make such 
corrections has been received from the Tribal Council or its authorized 
representative.
    Section 6.2  Accusations. The Tribal Council on its own motion, 
through the adoption of an appropriate resolution meeting the 
requirements of this Section, or any person, may initiate revocation 
proceedings by filing an accusation with the Secretary of the Tribal 
Council. The accusation shall be in writing and signed by the maker, 
and shall state facts showing that there are specific grounds under 
this Ordinance which would authorize the Tribal Council to revoke the 
license or licenses of the licensee against whom the accusation is 
made. Upon receipt of any accusation which meets the foregoing 
requirements, the Secretary shall cause the matter to be set for 
hearing before the Tribal Council. Thirty days prior to the date set 
for the hearing, the Secretary shall mail a copy of the accusation 
along with a notice of the day and time of the hearing before the 
Tribal Council. The notice shall command the licensee to appear and 
show cause why the licensee's license should not be revoked. The notice 
shall state that the licensee has the right to file a written response 
to the accusation, verified under oath and signed by the licensee ten 
days prior to the hearing date.
    Section 6.3  Hearing. Any hearing held on any accusation shall be 
held before a quorum of the Tribal Council under such rules of 
procedure as it may adopt. Both the licensee and the person filing the 
accusation, including the Tribe, shall have the right to present 
witnesses to testify and to present written documents in support of 
their positions to the Tribal Council. The Tribal Council shall render 
its decision within 60 days after the date of the hearing. The decision 
of the Tribal Council shall be final and non-appealable.

Chapter 7. Enforcement

    Section 7.1  General Penalties. Any person adjudged to be in 
violation of this Ordinance shall be subject to a civil penalty of not 
more than Five Hundred Dollars ($500.00) for each such violation. The 
Tribal Council may adopt by resolution a separate schedule of 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. 
Such schedule may also provide, in the case of repeated violations, for 
imposition of monetary penalties greater than the Five Hundred Dollars 
($500.00) limitation set forth above. The penalties provided for herein 
shall be in addition to any criminal penalties which may hereafter be 
imposed in conformity with federal law by separate Chapter, or 
provision of this Ordinance or by a separate Ordinance adopted by the 
Tribal Council.
    Section 7.2  Initiation of Action. Any violation of this Ordinance 
shall constitute a public nuisance. The Tribal Council may initiate and 
maintain an action in tribal court or any court of competent 
jurisdiction to abate and permanently enjoin any nuisance declared 
under this Ordinance. Any action taken under this Section shall be in 
addition to any other penalties provided for this Ordinance.

    Dated: April 30, 1999.
Kevin Gover,
Assistant Secretary--Indian Affairs.
[FR Doc. 99-11593 Filed 5-6-99; 8:45 am]
BILLING CODE 4310-02-P