[Federal Register Volume 66, Number 191 (Tuesday, October 2, 2001)]
[Notices]
[Pages 50202-50205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24582]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Berry Creek Rancheria Liquor Ordinance

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: This Notice publishes the Berry Creek Rancheria Liquor 
Ordinance. The Ordinance regulates the control, possession, and sale of 
liquor on the Berry Creek Rancheria trust lands, in conformity with the 
laws of the State of California, where applicable and necessary. 
Although the Ordinance was adopted on July 8, 2001, it does not become 
effective until published in the Federal Register because the failure 
to comply with the Ordinance may result in criminal charges.

DATES: This Ordinance is effective on October 2, 2001.

FOR FURTHER INFORMATION CONTACT: Kaye Armstrong, Branch of Tribal 
Relations, Division of Tribal Government Services, 1849 C Street NW., 
MS 4631-MIB, Washington, DC 20240-4001; Telephone (202) 208-4400.

SUPPLEMENTARY INFORMATION: Pursuant to the Act of August 15, 1953, 
Public Law 83-277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the 
Supreme Court in Rice v. Rehner, 463 U.S. 713 (1983), the Secretary of 
the Interior shall certify and publish in the Federal Register notice 
of adopted liquor ordinances for the purpose of regulating liquor 
transactions in Indian country. The Berry Creek Rancheria Liquor 
Ordinance No. 00-02 was duly adopted by the General Council of the 
Berry Creek Rancheria on July 8, 2001. The Berry Creek Rancheria, in 
furtherance of its economic and social goals, has taken positive steps 
to regulate sales of alcohol and use revenues to combat alcohol abuse 
and its debilitating effects among individuals and family members 
within the reservation of the Berry Creek Rancheria.
    This notice is published in accordance with the authority delegated 
by the Secretary of the Interior to the Assistant Secretary-Indian 
Affairs by 209 Departmental Manual 8.1.
    I certify that the General Council of the Berry Creek Rancheria 
duly adopted Ordinance No. 00-02 on July 8, 2001.

    Dated: August 29, 2001.
Neal A. McCaleb,
Assistant Secretary--Indian Affairs.
    The Berry Creek Rancheria Liquor Ordinance reads as follows:

The Berry Creek Rancheria Liquor Ordinance No. 00-02

Chapter I--Introduction

    Section 101. Title. This ordinance shall be known as the Berry 
Creek Rancheria Liquor Ordinance No. 00-02.
    Section 102. Authority. This ordinance is enacted pursuant to the 
Act of August 15, 1953 (Public Law 83-277, 67 Stat. 588, 18 U.S.C. 
1161) and the Articles of Association of The Berry Creek Rancheria 
adopted February 5, 1977, and approved May 5, 1977, and as amended in 
accordance with amendments 1,11,111, IV, V and VI, ratified by the 
Berry Creek Rancheria on December 16, 1979, and approved by the Area 
Director on October 15, 1980, and in accordance with amendments VII, 
VIII and IX ratified by the Berry Creek Rancheria on March 17, 1983, 
and approved by the Area Director on June 24, 1983.
    Section 103. Purpose. The purpose of this ordinance is to regulate 
and control the possession and sale of liquor on the Berry Creek 
Rancheria. The enactment of a tribal ordinance governing liquor 
possession and sale on the Rancheria will increase the ability of the 
tribal government to control Rancheria liquor distribution and 
possession, and at the same time will provide an important source of 
revenue for the continued operation and strengthening of the tribal 
government and the delivery of tribal government services.

Chapter II--Definitions

    Section 201. As used in this ordinance, the following words shall 
have the following meanings unless the context clearly requires 
otherwise.
    Section 202. Alcohol. Means 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 of this substance.
    Section 203. Alcoholic Beverage. Is synonymous with the term Liquor 
as defined in Section 207 of this Chapter.
    Section 204. Bar. Means any establishment with special space and 
accommodations for sale by the glass, can or bottle and for consumption 
on the premises of liquor, as herein defined.
    Section 205. 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 of cereal in pure 
water containing not more than four percent of alcohol by volume. For 
the purposes of this title, any such beverage, including ale, stout, 
and porter, containing more than four percent of alcohol by weight 
shall be referred to as ``strong beer.''
    Section 206. General Membership. Means as prescribed and defined by 
the Articles of Association of the Berry Creek Rancheria, Article II 
Membership, Sections I, II and III.
    Section 207. Liquor. Includes the four varieties of liquor herein 
defined (alcohol, spirits, wine and beer), and all fermented 
spirituous, vinous, or malt liquor or combination thereof, and mixed 
liquor, or otherwise intoxicating beverages; and every liquid or solid 
or semisolid 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, 
semisolid, solid, or other substances, which contain more than one 
percent of alcohol by weight shall be conclusively deemed to be 
intoxicating.
    Section 208. Liquor Store. Means any store at which liquor is sold 
and, for the purposes of this ordinance, includes stores only a portion 
of which are devoted to sale of liquor or beer.
    Section 209. Malt Liquor. Means beer, strong beer, ale stout, and 
porter.
    Section 210. Package. Means any container or receptacle used for 
holding liquor.

[[Page 50203]]

    Section 211. Rancheria. Means land held in trust by the United 
States Government for the benefit of the Indians of the Berry Creek 
Rancheria (see also Section 216, Tribal Land).
    Section 212. Sale and Sell. Includes exchange, barter, and traffic; 
and also includes 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 213. Spirits. Means any beverage, which contains alcohol 
obtained by distillation, including wines exceeding 17 percent of 
alcohol by weight.
    Section 214. Tribal Council. Means the Tribal Council of the Berry 
Creek Rancheria.
    Section 215. Tribal Land. Means any land within the exterior 
boundaries of the Rancheria, which is held in trust by the United 
States for the Tribe as a whole, including such land leased to other 
parties.
    Section 216. Tribe. Means the Berry Creek Rancheria.
    Section 217. Wine. Means any alcoholic beverage obtained by 
fermentation of fruits (grapes, berries, apples, etc.) or other 
agricultural product containing sugar, to which any saccharine 
substances may have been added before, during or after fermentation, 
and containing not more than 17 percent of alcohol by weight, including 
sweet wines fortified with wine spirits such as port, sherry, muscatel, 
and angelica, not exceeding 17 percent of alcohol by weight.
    Section 218. Trust Account. Means the account designated by the 
General Council for deposit of proceeds from the tax from the sale of 
alcoholic beverages.
    Section 219. Trust Agent. Means the Tribal Chairperson or other 
designee of the General Council.

Chapter III--Powers of Enforcement

    Section 301. Powers. The General Council, in furtherance of this 
ordinance, shall have the powers and duties to:
    (a) Publish and enforce the rules and regulations governing the 
sale, manufacture, and distribution of alcoholic beverages on the 
Rancheria;
    (b) Employ managers, accountants, security personnel, inspectors, 
and such other persons as shall be reasonably necessary to allow the 
General Council to perform its functions;
    (c) Issue licenses permitting the sale or manufacture or 
distribution of liquor on the Rancheria;
    (d) Hold hearings on violations of this ordinance or for the 
issuance or revocation of licenses hereunder;
    (e) Bring suit in the appropriate court to enforce this ordinance 
as necessary;
    (f) Determine and seek damages for violation of this ordinance;
    (g) Make such reports as may be required by the General Membership;
    (h) Collect taxes and fees levied or set by the General Council and 
to keep accurate records, books, and accounts; and
    (i) Exercise such powers as are delegated by the General Council.
    Section 302. Limitation on Powers. In the exercise of its powers 
and duties under this ordinance, the General Council and its individual 
members shall not accept any gratuity, compensation or other thing of 
value from any liquor wholesaler, retailer, or distributor or from any 
licensee.
    Section 303. Inspection Rights. The premises on which liquor is 
sold or distributed shall be open for inspection by the General Council 
or its designee at all reasonable times for the purposes of 
ascertaining whether the rules and regulations of this ordinance are 
being complied with.

Chapter IV--Sales of Liquor

    Section 401. Licenses Required. No sales of alcoholic beverages 
shall be made within the exterior boundaries of the Rancheria, except 
at a tribally licensed or tribally owned business operated on tribal 
land within the exterior boundaries of the Rancheria.
    Section 402. Sales Only on Tribal Land. All liquor sales within the 
exterior boundaries of the Rancheria shall be on tribal land, including 
leases thereon.
    Section 403. Sales for Cash. All liquor sales within the Rancheria 
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 use of major credit cards such as Visa, 
American Express, etc.
    Section 404. 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 
Rancheria is prohibited. Any person who is not licensed pursuant to 
this ordinance who purchases an alcoholic beverage within the 
boundaries of the Rancheria and sells it, whether in the original 
container or not, shall be guilty of a violation of this ordinance and 
shall be subjected to paying damages to the Tribe as set forth herein.

Chapter V--Licensing

    Section 501. Application for Tribal Liquor License Requirements. No 
tribal license shall be issued under this ordinance except upon a sworn 
application filed with the General Council containing a full and 
complete showing of the following:
    (a) Satisfactory proof that the applicant is or will be duly 
licensed by the State of California.
    (b) Satisfactory proof that the applicant is of good character and 
reputation among the people of the Rancheria and that the applicant is 
financially responsible.
    (c) The description of the premises in which the intoxicating 
beverages are to be sold, proof that the applicant is the owner of such 
premises, or lessee of such premises for at least the term of the 
license.
    (d) Agreement by the applicant to accept and abide by all 
conditions of the tribal license.
    (e) Payment of $250 fee as prescribed by the General Council.
    (f) Satisfactory proof that neither the applicant nor the 
applicant's spouse has ever been convicted of a felony.
    (g) Satisfactory proof that notice of the application has been 
posted in a prominent, noticeable place on the premises where 
intoxicating beverages are to be sold for at least 30 days prior to 
consideration by the General Council and has been published at least 
twice in such local newspaper serving the community that may be 
affected by the license the General Council may authorize. The notice 
shall state the date, time and place when the application shall be 
considered by the General Council pursuant to Section 502 of this 
ordinance.
    Section 502. Hearing on Application for Tribal Liquor License. All 
applications for a tribal liquor license shall be considered by the 
General Council in open session at which the applicant, his attorney, 
and any person protesting the application shall have the right to be 
present, and to offer sworn oral or documentary evidence relevant to 
the application. After the hearing, the General Council shall determine 
whether to grant or deny the application based on:
    (1) Whether the requirements of Section 501 have been met; and
    (2) Whether the General Council, in its discretion, determines that 
granting the license is in the best interests of the Tribe.
    In the event that the applicant is a member of the General Council, 
or a member of the immediate family of a General Council member, such 
members

[[Page 50204]]

shall not vote on the application or participate in the hearings as a 
General Council member.
    Section 503. Temporary Permits. The General Council or its designee 
may grant a temporary permit for the sale of intoxicating beverages for 
a period not to exceed 3 days to any person applying for the same in 
connection with a tribal or community activity, provided that the 
conditions prescribed in Section 504 of this ordinance shall be 
observed by the permittee. Each permit issued shall specify the types 
of intoxicating beverages to be sold. Further, a fee of $25 will be 
assessed on temporary permits.
    Section 504. Conditions of the Tribal License. Any tribal license 
issued under this title shall be subject to such reasonable conditions 
as the General Council shall fix, including, but not limited to the 
following:
    (a) The license shall be for a term not to exceed 1 year.
    (b) The licensee shall at all times maintain an orderly, clean and 
neat establishment, both inside and outside the licensed premises.
    (c) The licensed premises shall be subject to patrol by the tribal 
enforcement department, and such other law enforcement officials as may 
be authorized under tribal law.
    (d) The licensed premises shall be open to inspection by duly 
authorized tribal officials at all times during the regular business 
hours.
    (e) Subject to the provisions of subsection (f) of this section, no 
intoxicating beverages shall be sold, served, disposed of, delivered or 
consumed on the licensed premises except in conformity with the hours 
and days prescribed by the laws of the State of California, and in 
accordance with the hours fixed by the General Council, provided that 
the licensed premise shall not operate or open earlier or operate or 
close later than is permitted by the laws of the State of California.
    (f) No liquor shall be sold within 200 feet of a polling place on 
Tribal election days, or when a referendum is held of the people of the 
Tribe, and including special days of observation as designated by the 
General Council.
    (g) All acts and transactions under authority of the tribal liquor 
license shall be in conformity with the laws of the State of 
California, and shall be in accordance with this ordinance and any 
Tribal license issued pursuant to this ordinance.
    (h) No person under the age permitted under the laws of the State 
of California shall be sold, served, delivered, given, or allowed to 
consume alcoholic beverages in the licensed establishment and/or area.
    Section 505. License Not a Property Right. Notwithstanding any 
other provision of this ordinance, a Tribal liquor license is a mere 
permit for a fixed duration of time. A Tribal liquor license shall not 
be deemed a property right or vested right of any kind, nor shall the 
granting of a tribal liquor license give rise to a presumption of legal 
entitlement to the granting of such license for a subsequent time 
period.
    Section 506. Assignment or Transfer. No tribal license issued under 
this ordinance shall be assigned or transferred without the written 
approval of the General Council expressed by formal resolution.

Chapter VI--Rules, Regulations, and Enforcement

    Section 601. Sales or Possession With Intent to Sell Without a 
Permit. Any person who shall sell or offer for sale or distribute or 
transport in any manner, any liquor in violation of this ordinance, or 
who shall operate or shall have liquor in his possession with intent to 
sell or distribute without a permit, shall be guilty of a violation of 
this ordinance.
    Section 602. Purchases From Other Than Licensed Facilities. Any 
person within the boundaries of the Rancheria who buys liquor from any 
person other than at a properly licensed facility shall be guilty of a 
violation of this ordinance.
    Section 603. Sales to Persons Under the Influence of Liquor. Any 
person who sells liquor to a person apparently under the influence of 
liquor shall be guilty of a violation of this ordinance.
    Section 604. Consuming Liquor in Public Conveyance. Any person 
engaged wholly or in part in the business of carrying passengers for 
hire, and every agent, servant or employee or such person who shall 
knowingly permit any person to drink any liquor in any public 
conveyance shall be guilty of an offense. Any person who shall drink 
any liquor in a public conveyance shall be guilty of a violation of 
this ordinance.
    Section 605. Consumption or Possession of Liquor by Persons Under 
21 Years of Age. No person under the age of 21 years shall consume, 
acquire or have in his possession any 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 606. Sales of Liquor to Persons Under 21 Years of Age. Any 
person who shall sell or provide liquor to any person under the age of 
21 years shall be guilty of a violation of this ordinance for each sale 
or drink provided.
    Section 607. Transfer of Identification to Minor. Any person who 
transfers in any manner an identification of age to a minor for the 
purpose of permitting such minor to obtain liquor shall be guilty of an 
offense; provided, that corroborative testimony of a witness other than 
the minor shall be a requirement of finding a violation of this 
ordinance.
    Section 608. Use of False or Altered Identification. 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 609. Violations of This Ordinance. Any person guilty of a 
violation of this ordinance shall be liable to pay the Tribe a penalty 
not to exceed $500 per violation as civil damages to defray the Tribe's 
cost of enforcement of this ordinance. In addition to any penalties so 
imposed, any license issued hereunder may be suspended or canceled by 
the General Council after 10 days notice to the licensee. The decision 
of the General Council shall be final.
    Section 610. Acceptable Identification. Where there may be a 
question of a persons right to purchase liquor by reason of his age, 
such person shall be required to present any one of the following 
issued cards of identification which shows his correct age and bears 
his signature and photograph:
    (1) Driver's license of any state or identification card issued by 
any State Department of Motor vehicles;
    (2) United States Active Duty Military identity card; or
    (3) Passport.
    Section 611. Possession of Liquor Contrary to This Ordinance. 
Alcoholic beverages which are possessed contrary to the terms of this 
ordinance are declared to be contraband. Any tribal agent, employee, or 
officer who is authorized by the General Council to enforce this 
section shall have the authority to, and shall seize, all contraband.
    Section 612. Disposition of Seized Contraband. Any officer seizing 
contraband shall preserve the contraband in accordance with the 
appropriate California law code. Upon being found in violation of the 
ordinance by the Tribal Council, the party shall forfeit all right, 
title and

[[Page 50205]]

interest in the items seized which shall become the property of the 
Tribe.

Chapter VII--Taxes

    Section 701. Sales Tax. There is hereby levied and shall be 
collected a tax on each sale of alcoholic beverages on the Rancheria in 
the amount of 1 percent of the amount actually collected, including 
payments by major credit cards. The tax imposed by this section shall 
apply to all retail sales of liquor on the Rancheria and shall preempt 
any tax imposed on such liquor sales by the State of California.
    Section 702. Payment of Taxes to Tribe. All taxes from the sale of 
alcoholic beverages on the Rancheria shall be paid over to the trust 
agent of the Tribe.
    Section 703. Taxes Due. All taxes for the sale of alcoholic 
beverages on the Rancheria are due within 30 days at the end of the 
calendar quarter for which the taxes are due.
    Section 704. Reports. Along with payment of the taxes imposed 
herein, the taxpayer shall submit an accounting for the quarter of all 
income from the sale or distribution of said beverages as well as for 
the taxes collected.
    Section 705. Audit. As a condition of obtaining a license, the 
licensee must agree to the review or audit of its books and records 
relating to the sale of alcoholic beverages on the Rancheria. Said 
review or audit may be done annually by the Tribe through its agents or 
employees whenever, in the opinion of the General Council, such a 
review or audit is necessary to verify the accuracy of reports.

Chapter VIII--Profits

    Section 801. Disposition of Proceeds. The gross proceeds collected 
by the General Council from all licensing provided from the taxation of 
the sale of alcoholic beverages on the Rancheria shall be distributed 
as follows:
    (a) For the payment of all necessary personnel, administrative 
costs, and legal fees for the operation and its activities.
    (b) The remainder shall be turned over to the Trust Account of the 
Tribe.

Chapter IX--Severability and Miscellaneous

    Section 901. Severability. If any provision or application of this 
ordinance is determined by review to be invalid, such adjudication 
shall not be held to render ineffectual the remaining portions of this 
title or to render such provisions inapplicable to other persons or 
circumstances.
    Section 902. Prior Enactments. All prior enactments of the General 
Council, which are inconsistent with the provisions of this ordinance, 
are hereby rescinded.
    Section 903. Conformance with California Laws. All acts and 
transactions under this ordinance shall be in conformity with the laws 
of the State of California as that term is used in 18 U.S.C.1161.
    Section 904. 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 X--Amendment

    Section 1001. This ordinance may only be amended by a majority vote 
of the General Council.

Chapter XI--Sovereign Immunity

    Section 1101. Nothing contained in this ordinance is intended to, 
nor does in any way limit, alter, restrict, or waive the Tribe's 
sovereign immunity from unconsented suit or action.
[FR Doc. 01-24582 Filed 10-1-01; 8:45 am]
BILLING CODE 4310-02-P