[Federal Register Volume 64, Number 181 (Monday, September 20, 1999)]
[Notices]
[Pages 50824-50827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24370]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Little River Band of Ottawa Indians 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. 1161, as interpreted by the Supreme
Court in Rice v. Rehner, 463 U.S. 713 (1983). I certify that the Little
River Band of Ottawa Indians Liquor Control Ordinance was duly adopted
and certified by Ordinance No. 99-0710-01 of the Little Band of Ottawa
Indians' Tribal Council on July 10, 1999. The Ordinance provides for
the regulation of the sale, possession and consumption of liquor in the
area of the Little River Band of Ottawa Indians, under the jurisdiction
of the Little River Band of Ottawa Indians, and is in conformity with
the laws of the State of Michigan.
DATES: This ordinance is effective as of September 20, 1999.
FOR FURTHER INFORMATION CONTACT: Jim D. James, Office of Tribal
Services, 1849 C Street, NW, MS 4641 MIB, Washington, DC 20240-4401;
telephone (202) 208-4400.
SUPPLEMENTARY INFORMATION: The Little River Band of Ottawa Indians
Liquor Control Ordinance is to read as follows:
Section 1. General Provisions
1.01. Title. This Ordinance shall be known as the ``Little River
Band of Ottawa Indians Liquor Control Ordinance.''
1.02. Purpose. The purpose of this Ordinance is to regulate and
control the importation, manufacture, distribution, and sale of
alcoholic beverages on the Little River Band of Ottawa Indians
Reservation.
1.03. Legislative Findings. The Little River Band of Ottawa
Indians Tribal Council hereby finds as follows:
a. The Tribal Council has the authority to adopt this Ordinance
pursuant to the powers vested in it by Article IV, Section 7 of the
Constitution, approved on July 10, 1998.
b. Federal law prohibits the introduction and sale of liquor
into Indian country unless such transaction is in conformity both
with the laws of the State in which such act or transaction occurs
and with an Ordinance duly adopted by the tribe having jurisdiction
over such area of Indian country.
c. The regulation and control of alcoholic beverages on the
Tribe's reservation is necessary to protect the health, security and
general welfare of the Tribe.
d. The enactment of this Ordinance is an exercise of the
inherent sovereign powers of the Tribe.
1.04. Declaration of Policy. The importation, distribution,
manufacture, and sale of alcoholic beverages on the Tribe's
reservation shall be lawful, provided that such activity is licensed
by the Tribe in accordance with this Ordinance and the laws of the
State of Michigan relating to the sale and regulation of alcoholic
beverages.
1.05. Application of 18 U.S.C. 1161. The importation,
distribution, manufacture, and sale of alcoholic beverages on the
Tribe's reservation shall be ``in conformity with'' this Ordinance
and the laws of the State of Michigan as that phrase is used in 18
U.S.C. 1161.
1.06. Incorporation of Michigan Laws by Reference.
a. In accordance with 18 U.S.C. 1161, the Tribe hereby adopts
and applies as tribal law those Michigan laws, as amended, relating
to the sale and regulation of alcoholic beverages encompassing the
following areas: sale to a minor; sale to a visibly intoxicated
individual; sale of adulterated or misbranded liquor; hours of
operation; and similar substantive provisions, including such other
laws prohibiting the sale of alcoholic beverages to certain
categories of individuals. The tribal laws that are defined by
reference to the substantive areas of Michigan laws referred to in
this section shall apply in the same manner and to the same extent
as such laws apply elsewhere in Michigan to off-reservation
transactions unless otherwise agreed by the Tribe and State.
b. In the event any provision of this Ordinance is in conflict
with the substantive provisions of Michigan law adopted and applied
pursuant to this Ordinance, the terms of this Ordinance shall
govern.
c. Whenever such Michigan laws are incorporated herein by
reference, amendments thereto shall also be deemed to be
incorporated upon their effective adoption by the Tribe or the
Tribal Council.
d. Nothing in this Ordinance shall be construed as a consent by
the Tribe to the jurisdiction of the State of Michigan or any of its
courts or subordinate political subdivisions or municipalities
within the Reservation over any activity arising under or related to
the subject of this Ordinance nor shall anything in this Ordinance
constitute an express or implied waiver of the sovereign immunity of
the Tribe.
1.07. Severability Clause. In the event any provision of this
Ordinance shall be found or declared to be invalid by a court of
competent jurisdiction, all of the remaining provisions of this
Ordinance shall be unaffected and shall remain in full force and
effect.
1.08. Effective Date. The effective date of this Ordinance is
the date the Secretary of the Interior publishes the same in the
Federal Register.
Section 2. Terms Defined.
As used in this Ordinance, the following words shall have the
following meanings unless the context clearly requires otherwise:
2.01. Alcohol means the product of distillation of fermented
liquid, whether or not rectified or diluted with water, but does not
mean ethyl or industrial alcohol, diluted or not, that has been
denatured or otherwise rendered unfit for beverage purposes.
2.02. Alcoholic beverage or liquor means any spirituous, vinous,
malt, or fermented liquid and compounds, whether or not medicated,
proprietary, patented, and by whatever name called, containing half
(\1/2\) of 1% or more of alcohol by volume which is fit for use for
beverage purposes. Alcoholic beverage or liquor includes the
following eight subclassifications: beer, wine, spirits, alcohol,
sacramental wine, brandy, mixed wine drink, and mixed spirit drink.
Alcoholic beverage or liquor does not include the exceptions set
forth in Mich. Comp. Laws Sec. 436.4 (Mich. St. Ann. Sec. 18.974).
2.03. Applicant means any person who submits an application to
the Tribe for a liquor license or who applies for or requests a
license required by this Ordinance.
2.04. Beer means any beverage obtained by alcoholic fermentation
of an infusion or decoction of barley, malt, hops, or other cereal
in potable water.
2.05. Constitution means the Constitution of the Little River
Band of Ottawa Indians ratified by the members of the Tribe on May
27, 1998, and approved by the Deputy Commissioner of Indian Affairs
on July 10, 1998.
2.06. Council or Tribal Council means the elected Tribal Council
of the Little River Band of Ottawa Indians.
2.07. License means a liquor license issued by the Tribal
Council pursuant to this Ordinance.
2.08. Licensee means any holder of a valid liquor license issued
by the Tribal Council.
2.09. Manufacturer means any person engaged in the manufacture
of alcoholic beverages.
2.10. Ogema or Tribal Ogema means the chief executive officer of
the Tribe elected by
[[Page 50825]]
majority vote of the members of the Tribe or the person authorized
to perform the duties of the Ogema in his/her absence.
2.11. Person means an individual, receiver, assignee, trustee in
bankruptcy, trust, estate, tribe, firm, partnership, joint venture,
corporation, association, society, or any group of individuals
acting as a unit, whether mutual, cooperative, fraternal, non-
profit, or otherwise.
2.12. Reservation means (i) all lands acquired by the Secretary
of the Interior in trust for the benefit of the Tribe; (ii) upon the
proclamation of the reservation, all lands within the exterior
boundaries of the Tribe's reservation; and (iii) any and all lands
made part of the reservation in the future.
2.13. Sacramental wine means wine containing not more than 24%
of alcohol by volume which is used for sacramental purposes.
2.14. Sale means the exchange, barter, traffic, furnishing, or
giving away for commercial purposes any alcoholic beverages.
2.15. Spirits means any beverage which contains alcohol obtained
by distillation, mixed with potable water or other substances, or
both, in solution, and includes wine containing an alcoholic content
of more than 21% by volume, except sacramental wine and mixed spirit
drink.
2.16. Tribal Court means the Tribal Court of the Little River
Band of Ottawa Indians.
2.17. Tribal Enterprise means any activity or business owned,
managed, or controlled by the Tribe or any agency, subordinate
organization, or other entity of the Tribe.
2.18. Tribal law means the Tribal Constitution and all laws,
ordinances, codes, resolutions, and regulations now and hereafter
duly enacted by the Tribal Council.
2.19. Tribe means, and tribal refers to, the Little River Band
of Ottawa Indians.
2.20. Wine means the product made by the normal alcoholic
fermentation of the juice of sound, ripe grapes, or any other fruit
with the usual cellar treatment, and containing not more than 21% of
alcohol by volume, including fermented fruit juices other than
grapes and mixed wine drinks.
Section 3. Licenses
3.01. Licensing Authority of Tribal Council. The Council shall
exercise all of the powers necessary to accomplish the purposes of
this Ordinance, which may include the following actions:
(a) Adopt and enforce rules and regulations for the purpose of
effectuating this Ordinance, which includes setting of fees;
(b) execute all necessary documents;
(c) perform all matters and things incidental to and necessary
to conduct its business and carry out its duties and functions under
this Ordinance;
(d) establish a commission and delegate to such commission the
authority to regulate licensees and enforce this Ordinance; and
(e) to establish procedures to issue, suspend, revoke or
transfer licenses under this Ordinance.
3.02. Prohibition of Unlicensed Sale of Liquor. This Ordinance
prohibits the importation, manufacture, distribution, or sale of
liquor for commercial purposes other than where conducted by a
person licensed in accordance with this Ordinance. The federal laws
relating to the importation, manufacture, distribution and sale of
liquor are intended to remain applicable to any act or transaction
that is not authorized by this Ordinance, and violators shall be
subject to federal law.
3.03. Purchases only from State licensed Distributors. All
persons shall purchase spirits, for resale by the person, from the
Michigan Liquor Control Commission, and beer and wine from
distributors licensed by the Michigan Liquor Control Commission, on
the same basis that such beverages are purchased by similar
licensees.
3.04. Authorization to Sell Liquor. Any person applying for and
obtaining a license under the provisions of this Ordinance shall
have the right to engage only in those alcoholic liquor transactions
expressly authorized by such license and only at those specific
places or areas designated in said license.
3.05. Classes of Licenses. The Council shall have the authority
to issue any one or more of the following classes of liquor licenses
within the reservation:
a. Retail on-site 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. This class includes hotels where alcoholic beverages
may be sold for consumption on the premises and in the rooms of bona
fide registered guests.
b. Retail on-site 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. This class includes hotels where beer
and/or wine may be sold for consumption on the premises and in the
rooms of bona fide registered guests.
c. Retail off-site general license means a license authorizing
the applicant to sell alcoholic beverages at retail to be consumed
by the buyer off of the premises or at a location other than the one
designated in the license.
d. Retail off-site beer and wine license means a license
authorizing the applicant to sell beer and wine at retail to be
consumed by the buyer off of the premises or at a location other
than the one designated in the license.
e. Manufacturer's license means a license authorizing the
applicant to manufacture alcoholic beverages for the purpose of sale
on the Reservation.
f. Temporary license means a license authorizing the sale of
alcoholic liquor on a temporary basis for premises temporarily
occupied by the licensee for a picnic, social gathering, or similar
occasion.
3.06. Responsibility to Complete Application and Obtain License.
Except in the case of an application for a temporary license, the
owner of the premises on which liquor is or will be imported,
manufactured, distributed, or sold for commercial purposes shall
complete a License application and obtain a License for the premises
as required by Section 3.05. If the Tribe or a tribal enterprise is
the owner of the premises on which liquor is or will be imported,
manufactured, distributed, or sold for commercial purposes, the
manager or general manager of the premises shall file an application
on behalf of the Tribe or tribal enterprise for a license under
Section 3.07. In the case of a Temporary License, the person(s)
organizing or sponsoring the event for which a Temporary license is
required shall complete the License application.
3.07. Application Form and Content. An application for a license
shall be made to the Council for consideration at a Regular Meeting
of the Tribal Council and shall contain the following information:
a. The name and address of the licensee, including the names and
addresses of all of the principal officers and directors, and other
employees with primary management responsibility related to the sale
of alcoholic liquor;
b. The specific area, location, and/or premise(s) for which the
license is applied for;
c. The class of license under Section 3.05 applied for;
d. Whether the applicant has a state liquor license; and
e. The application shall be verified under oath and notarized by
a duly authorized representative.
3.08. Investigation. Upon receipt of an application for the
issuance, renewal, or transfer of a license, the Tribal Council
shall make an investigation to determine whether the applicant and
the premises for which a license is applied for, qualify for a
license, shall ensure that the applicant and premises are in
compliance with this Ordinance, and shall investigate all matters
connected therewith which may affect the public health, welfare, and
morals.
3.09. Public Hearing. Upon receipt of an application for
issuance, renewal, or transfer of a license, and the payment of all
fees if required by regulations promulgated under Section 3.01(a),
the Tribal Council may issue a license or set the matter for a
public hearing at a Special Meeting of the Tribal Council. Notice of
the time and place of the hearing shall be given to the applicant
and the public at least twenty (20) calendar days before the
hearing. Notice shall be given to the applicant by United States
mail, postage prepaid, 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 reservation. The notice published in
the newspaper shall include the name of the applicant, whether the
action involves a new issuance, renewal, or transfer, the class of
license applied for under Section 3.05, and a general description of
the area where the alcoholic beverage will be or has been 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 to
limit or prohibit repetitive testimony.
3.10. Tribal Council Action on the Application. The Tribal
Council shall act on the application within sixty (60) days of
receipt of the application or within sixty (60) days of the
conclusion of the public hearing if one is held pursuant to Section
3.09. The
[[Page 50826]]
Tribal Council shall have the authority to deny, approve, or approve
with conditions the application. Provided, however, that the Tribal
Council shall afford an applicant a hearing on the application
before denying or approving with conditions any application. 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
Tribal Council resolution.
3.11. Denial of License, Renewal, or Transfer. An application
for a license, license renewal, or license transfer may be denied
for one or more of the following reasons:
a. The applicant has knowingly and materially misrepresented
facts contained in the application;
b. The applicant (or premises) is not in compliance with tribal
or applicable Federal or state laws;
c. Granting of the license (or renewal or transfer thereof)
would create a threat to the peace, safety, morals, health, or
welfare of the Tribe;
d. The applicant has failed to complete the application properly
or has failed to tender the appropriate fee; or
e. If the applicant (or premise) is not in compliance with or
does not meet the requirements of Michigan law incorporated as
tribal law pursuant to this Ordinance.
3.12. Multiple Locations. Separate licenses shall be issued for
each of the premises at which liquor is imported, distributed,
manufactured or sold.
3.13. Posting of License. Every license shall be posted and kept
in a conspicuous place(s) on the licensed premises.
3.14. Transfer of License. Each license issued or renewed under
this Ordinance is separate and distinct and is transferable from one
licensee to another or from one premises to another 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. The transfer
application shall contain all of the information required of an
original applicant under section 3.07 of this Ordinance. In the case
of a transfer to a new premises, the application shall contain an
exact description of the location where the liquor is proposed to be
sold.
3.15. Term and Renewal of License. All licenses shall be issued
on a calendar year basis and shall be renewed annually. The
applicant shall renew a license by, prior to the license's
expiration date, submitting a written renewal application to the
Tribal Council on the provided form, and paying the annual license
fee for the next year. License renewals may be issued without a
hearing.
3.16. Consent to Tribal Jurisdiction. Anyone who imports,
manufactures, distributes, or sells liquor for commercial purposes
on the Tribe's reservation, and anyone who submits an application
for a license, shall be deemed to have consented to the jurisdiction
of the Tribe and the Tribal Court.
Section 4. License Suspension and Revocation; Inspections; Seizure
4.01. Suspension or Revocation of License. Whenever it is
brought to the attention of the Tribal Ogema, Tribal Council, or any
other person, that a licensee (or licensed premises), through action
or inaction
a. Has knowingly and materially misrepresented facts contained
in any license application;
b. Is not in compliance with tribal or applicable state and
federal laws;
c. Failed to comply with any condition of a license, including
failure to pay a required fee;
d. Failed to take reasonable steps to correct objectionable
conditions constituting a nuisance on the licensed premises or any
adjacent area within a reasonable time after receipt of a notice to
make such corrections has been issued by the Tribal Council or its
authorized representative; or
e. If applicable, suspension or revocation of the licensee's
Michigan liquor license, proceedings to suspend or revoke a
licensee's Tribal license may be initiated in accordance with this
Section.
4.02. Initiation of Suspension or Revocation Proceedings.
(a) Persons or Entities Authorized to Initiate Proceedings.
Suspension or revocation proceedings for any license held by a
gaming operation may be initiated by the Tribal Gaming Commission by
filing a complaint with the Tribal Council. All other suspension or
revocation proceedings may be initiated by the Tribal Ogema or his/
her designee, or by any person who files a complaint with the Tribal
Council Recorder.
(b) Interim Hearings Commission. Until such time as the Tribal
Council creates a regulatory commission vested with authority to
adjudicate alleged violations of this Ordinance, suspension,
revocation and other enforcement proceedings shall be heard by a
Hearings Commission consisting of the Tribal Council Speaker, the
Council Recorder, and one (1) other member of the Tribal Council.
(c) Form of Complaint. All complaints shall be in writing and
signed by the complainant. The complaint shall state facts showing
that there are specific grounds under this Ordinance which would
authorize the suspension or revocation of the license(s). If the
complaint does not state such grounds, the Hearings Commission shall
dismiss the complaint and duly notify the complainant and the
licensee.
(d) Notice of Hearing. If the complaint states such grounds, the
Tribal Council Recorder shall cause the matter to be set for a
hearing before the Hearings Commission on a date no later than
thirty (30) days from the Tribal Council's receipt of the complaint.
Notice of the time, date, and place of the hearing shall be given
the licensee and the public in the same manner as set forth in
Section 3.09. The notice shall state that the licensee has the right
to file a written response to the complaint or resolution, verified
under oath and signed by the licensee ten (10) days prior to the
hearing date.
4.03. Hearing. A hearing held on any complaint shall be held
before the Hearings Commission under such rules of procedure as it
may adopt. Both the licensee and the complainant shall have the
right to present witnesses, testify, and present written documents
in support of their positions to the Hearings Commission at such
hearing. The Hearings Commission shall render its decision within
sixty (60) days after the date of the hearing. The decision of the
Hearings Commission shall be final, unless appealed pursuant to
Section 5.03.
4.04. Delivery of License. Upon suspension or revocation of a
license, the owner of the premise shall return the license to the
Recorder of the Tribal Council. In cases involving suspension, the
Tribal Council shall return the license to the owner of the premise
at the expiration or termination of the suspension period.
4.05. General Penalties. Any person adjudged to be in violation
of this Ordinance, including any lawful regulation promulgated
pursuant thereto, shall be subject to a civil fine of not more than
five hundred dollars ($500.00) for each such violation. The Tribal
Council may adopt by resolution a separate schedule for fines for
each type of violation, taking into account the seriousness and
threat the violation may pose to the general health and welfare of
the Tribe, its members and those on reservation lands. The penalties
provided for herein shall be in addition to any criminal penalties
which may be imposed under applicable law. Each calendar day during
which a violation occurs shall be deemed a separate violation.
4.06. Initiation of Action. The Tribal Ogema or Tribal Council,
on behalf of and in the name of the Tribe, may initiate and maintain
an action in Tribal Court or any court of competent jurisdiction to
abate and permanently enjoin any violation of this Ordinance. Any
action taken under this section shall be in addition to any other
penalties provided for in this Ordinance.
4.07. Inspection. All licensed premises or any parts used or in
any way connected physically or otherwise with the licensed premise,
and any premise whether licensed or not used in the importation ,
distribution, manufacture or sale of liquor shall at all times be
opened to inspection by any tribal inspector appointed by the Tribal
Ogema. Any licensed premises operated by a person holding a gaming
license shall be open to inspection by the Tribal Gaming Commission
or any inspector acting on behalf of the Gaming Commission.
4.08. Contraband; Seizure; Forfeiture.
a. All alcoholic beverages within the reservation that are
stored, held, owned, or possessed by any person, or licensee
operating in violation of this Ordinance, are hereby declared to be
contraband and subject to forfeiture to the Tribe.
b. Within thirty (30) calendar days following the seizure of the
contraband, a hearing shall be held before the Tribal Court, at
which time the licensee or owner of the premises or contraband shall
be given an opportunity to present evidence.
c. Notice of the hearing shall be given to the persons
identified in Section 4.08(b) or the person from whom the property
was seized, if known, ten (10) calendar days prior to the hearing.
If the person is unknown, notice of the hearing shall be posted at
the place where the contraband was seized and at other public places
on the reservation. The notice shall describe the property seized,
and the time, place, and cause of seizure and give
[[Page 50827]]
the name and place of residence, if known, of the person from whom
the property was seized.
d. If upon hearing, the evidence warrants, or if no person
appears as a claimant, the Tribal Court shall thereupon enter a
determination of forfeiture and order such contraband forfeited to
the Tribe and sold or destroyed forthwith.
Section 5. Sovereign Immunity; Appeals
5.01. Sovereign Immunity.
a. The Tribe, and all of its instrumentalities, including, but
not limited to tribal enterprises, subordinate organizations,
boards, committees, officers, attorneys and agents, are immune from
suit in any jurisdiction except to the extent that such immunity has
been expressly and unequivocally waived in writing by the Tribe.
b. Except as provided in Section 5.02, nothing in this
Ordinance, and no enforcement action taken pursuant to this
Ordinance or otherwise, including but not limited to, the holding of
any hearing, the grant, denial, suspension, modification,
conditioning or revocation of any license, the filing of suit by the
Tribal Ogema or Tribal Council to enforce any provision of this
Ordinance or other law, shall constitute a waiver of such immunity,
either as to the original action, any counterclaim, regardless of
whether an asserted counterclaim arises out of the same transaction
or occurrence, or in any other respect.
5.02. Limited Waiver of Sovereign Immunity of the Tribe. The
Tribe hereby expressly waives its sovereign immunity from suit in
the Tribal Court for the limited purpose of an appeal of any
decision of the Tribal Council to grant, deny, modify, or condition
a license or of the Tribal Council Hearings Commission to suspend or
revoke a license or to impose fines. Nothing contained in this
section or this Ordinance or in any express waiver of sovereign
immunity by resolution of the Tribal Council relating to the
regulation of alcoholic beverages shall be deemed a consent to levy
of any judgment, lien or attachment upon any property or revenues of
the Tribe.
5.03. Appeal to Tribal Court. A person directly affected by any
grant, denial, suspension, modification, conditioning or revocation
of any license or imposition of fines under this Ordinance, shall
have the right to appeal such decision to the Tribal Court. Any such
appeal must be filed with the Tribal Court in writing on or before
the thirtieth (30th) day following the decision of the Tribal
Council or Tribal Ogema, as the case may be. In any case which has
been appealed to the Tribal Court for final action, the Tribal Court
shall review all findings of fact and of law of the Hearings
Commission on the record and pursuant to an ``arbitrary and
capricious'' standard and shall have power to affirm, modify or
reverse the decision. Pursuant to Section 5.02, the Tribal Court may
only grant injunctive relief and may not grant damages against the
Tribe. The Tribal Court's decision shall be final, and no further
appeal may be had.
Dated: September 14, 1999.
Kevin Gover,
Assistant Secretary--Indian Affairs.
[FR Doc. 99-24370 Filed 9-17-99; 8:45 am]
BILLING CODE 4310-02-P