[Federal Register Volume 67, Number 93 (Tuesday, May 14, 2002)]
[Notices]
[Pages 34460-34463]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-12012]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Augustine Band of Cahuilla Mission Indians Liquor Control 
Ordinance

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: This notice publishes the Augustine Band of Cahuilla Mission 
Indians Liquor Control Ordinance. The Ordinance regulates the control, 
possession and sale of liquor on the Augustine Band of Cahuilla Mission 
Indians trust lands, to be in conformity with the laws of the State of 
California, where applicable and necessary. Although the Ordinance was 
adopted on April 18, 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 May 14, 2002.

FOR FURTHER INFORMATION CONTACT: Kaye Armstrong, Office of Tribal 
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 Augustine Band of Cahuilla Mission 
Indians Liquor Control Ordinance, Resolution No. 01.03-A, was duly 
adopted by the Augustine Band of Cahuilla Mission Indians Tribal 
Council, governing body of the Augustine Indian Reservation, on April 
18, 2001. The Augustine Band of Cahuillla Mission Indians, in 
furtherance of its economic and social goals, has taken positive steps 
to regulate retail sales of alcohol and use revenue to combat alcohol 
abuse and its debilitating effects among individuals and family members 
within the Augustine Indian Reservation.
    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 by Resolution No. 01.03-A, the Augustine Band of 
Cahuilla Mission Indians Liquor Control Ordinance was duly adopted by 
the Augustine Band of Cahuilla Mission Indians Tribal Council, 
governing body of the Augustine Indian Reservation, on April 18, 2001.

    Dated: April 30, 2002.
Neal A. McCaleb,
Assistant Secretary--Indian Affairs.

    The Augustine Band of Cahuilla Mission Indians Liquor Control 
Ordinance, Resolution No. 01.03-A, reads as follows:

Title VIII--The Licensing and Regulation of Liquor

Chapter I--Declaration of Public Policy and Purpose

    Section 1. The introduction, possession, and sale of liquor on the 
lands of the Augustine Band of Cahuilla Mission Indians of the 
Augustine Indian Reservation is a matter of special concern to the 
tribal government of the Augustine Band.
    Section 2. Federal law (18 U.S.C. Secs. 1154, 1161) currently 
prohibits the introduction of liquor into Indian Country except as 
provided therein and in accordance with State law as interpreted by the 
Supreme Court in Rice v. Rehner, 463 U.S. 713 (1983), and expressly 
delegates to each tribe the decision regarding when and to what extent 
the introduction, possession and sale of liquor shall be permitted.
    Section 3. It is in the best interest of the Band to enact a tribal 
code governing the introduction, possession and sale of liquor on the 
Augustine Indian Reservation, and which also provides for exclusive 
purchase, distribution, and sale of liquor on tribal lands within the 
exterior boundaries of the Reservation. Further, the Band has 
determined that said purchase, distribution and sale shall take place 
only at tribally-owned enterprises and/or at tribally-licensed 
establishments operating on land leased from or otherwise owned by the 
Band as a whole.
    Section 4. The Tribal Council further finds that violations of this 
Title would damage the Band in an amount of five hundred dollars ($500) 
per violation because of the costs of enforcement, investigation, 
adjudication and disposition of such violations, and that to defray the 
costs of enforcing this Title the Band will impose a tax on the sale of 
liquor on the reservation. Based upon the foregoing findings and 
determinations, the Tribal Council hereby ordains as follows.

Chapter II--Definitions

    As used in this title, the following words shall have the following 
meanings unless the context clearly requires otherwise.
    Section 1. Alcohol. 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 dilutions and mixtures of this substance.
    Section 2. Alcoholic Beverage. Identical in meaning to the term 
liquor as defined in Chapter II, subsection 6 of this Ordinance.
    Section 3. Bar. Any establishment with special space and 
accommodations for sale by the glass and for consumption on the 
premises, of liquor, as herein defined.
    Section 4. Beer. 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 containing not more than 4 percent of alcohol by volume. For the 
purpose of this title, any such beverage, including ale, stout, and 
porter, containing more than 4 percent of alcohol by weight shall be 
referred to as ``strong beer.''
    Section 5. Tribal Council. The governing body of the Augustine Band 
of Cahuilla Mission Indians.
    Section 6. Liquor. The four varieties of liquor herein defined 
(alcohol, spirits, wine and beer), and all fermented spiritous, vinous, 
or malt liquor or combinations thereof, and mixed liquor, or a part of 
which is fermented, spiritous, vinous, or malt liquor, or otherwise 
intoxicating; and every other 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

[[Page 34461]]

preparations or mixtures capable of human consumption, and any liquid, 
semisolid, solid, or other substances that contains more than 1 percent 
of alcohol by weight shall be conclusively deemed to be intoxicating.
    Section 7. Liquor Store. Any store at which liquor is sold and, for 
the purpose of this Ordinance, including any store only a portion of 
which is devoted to the sale of liquor or beer.
    Section 8. Malt Liquor. All beer, strong beer, ale, stout, and 
porter.
    Section 9. Package. Any container or receptacle used for holding 
liquor.
    Section 10. Public Place. Includes gaming facilities and commercial 
or community facilities of every nature 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 access, and which generally are used by 
the public.
    Section 11. Sale and Sell. Any exchange, barter, and traffic; 
including the selling of 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.
    Section 12. Spirits. Any beverage, which contains alcohol obtained 
by distillation, including wines exceeding 17 percent of alcohol by 
weight.
    Section 13. Tribal Land. All land within the exterior boundaries of 
the Augustine Indian Reservation that is held in trust by the United 
States for the Augustine Band of Cahuilla Mission Indians and for 
individual allottees.
    Section 14. Tribal Gaming Commission. The gaming regulatory body 
established under the Gaming Code that has been approved by the 
Chairperson of the National Indian Gaming Commission.
    Section 15. Wine. Any alcoholic beverage obtained by fermentation 
of any fruits (grapes, berries, applies, etc.), or fruit juice 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.

Chapter III--Powers of Enforcement

    Section 1. In addition to the powers and duties provided for in 
other Augustine Codes, the Tribal Council, in furtherance of this 
Title, shall have the powers and duties to:
    (a) Publish and enforce rules and regulations adopted by the Tribal 
Council governing the sale, manufacture, and distribution of alcoholic 
beverages in public places on the Augustine Indian Reservation;
    (b) Employ managers, accountants, security personnel, inspectors, 
and such other persons as shall be reasonably necessary to allow the 
Tribal Council to perform its functions. Such employees shall be tribal 
employees;
    (c) Issue licenses permitting the sale, manufacture and/or 
distribution of liquor in public places on the Augustine Indian 
Reservation;
    (d) Hold hearings on violations of this Title or for the issuance 
or revocation of licenses hereunder;
    (e) Bring suit in the appropriate court to enforce this Title as 
necessary;
    (f) Determine and seek damages for violation of this Title;
    (g) Make such reports as may be required by the Tribal Council;
    (h) Collect sales taxes and fees levied or set by the Tribal 
Council on liquor sales and the issuance of liquor licenses, and keep 
accurate records, books and accounts; and
    (i) Exercise such other powers as may be delegated from time to 
time by the Tribal Council.
    Section 2. Limitation on Powers. In the exercise of its powers and 
duties under this Title, the Tribal Council and its individual members 
and staff 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 sovereign immunity of the Augustine Band of Cahuilla 
Mission Indians from suit without a majority vote of the Tribal 
Council.
    Section 3. Inspection Rights. The public places on or within which 
liquor is sold or distributed shall be open for inspection by the 
Tribal Council at all reasonable times for the purposes of ascertaining 
compliance with this Ordinance and other regulations promulgated 
pursuant thereto.

Chapter IV--Sale of Liquor

    Section 1. Licenses Required. No sales of alcoholic beverages shall 
be made on or within public places within the exterior boundaries of 
the Augustine Indian Reservation, except at a tribally-licensed or 
tribally-owned business operated on tribal land within the exterior 
boundaries of the reservation.
    Section 2. Sales for Cash. All liquor sales within the reservation 
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 
cashiers or personal checks, payroll checks or debit cards or credit 
cards issued by any financial institution.
    Section 3. Sale for Personal Consumption. All sales shall be for 
the personal use and consumption by the purchaser or members of the 
purchaser's household, including guests, who are over the age of 
twenty-one. Resale of any alcoholic beverage purchased within the 
exterior boundaries of the reservation is prohibited. Any person who is 
not licensed pursuant to this Title who purchases an alcoholic beverage 
within the boundaries of the reservation and resells it, whether in the 
original container or not, shall be guilty of a violation of this Title 
and shall be subjected to exclusion from tribal lands or liability for 
money damages of up to $500, as determined by the Tribal Council after 
notice and an opportunity to be heard.

Chapter V--Licensing

    Section 1. Procedure. In order to control the proliferation of 
establishments on the reservation that sell or provide liquor by the 
bottle or by the drink, all persons or entities that desire to sell 
liquor within the exterior boundaries of the Augustine Indian 
Reservation must apply to the Tribal Council for a license to sell or 
provide liquor; provided, however, that no license is necessary to 
provide liquor within a private single-family residence on the 
reservation for which no money is requested or paid.
    Section 2. State Licensing. No person shall be allowed or permitted 
to sell or provide liquor on the Augustine Indian Reservation if he/she 
does not also have a license from the State of California to sell or 
provide such liquor. If such license from the State is revoked or 
suspended, the tribal license shall automatically be revoked or 
suspended as well.
    Section 3. Application. Any person applying for a license to sell 
or provide liquor on the Augustine Indian Reservation shall complete 
and submit an application provided for this purpose by the Tribal 
Council and pay such application fee as may be set from time-to-time by 
the Tribal Council for this purpose. An incomplete application will not 
be considered.
    Section 4. Issuance of License. The Tribal Council may issue a 
license if it believes that the issuance of such a license would be in 
the best interest of the Augustine Band, the residents of the Augustine 
Indian Reservation and the surrounding community. Licensure is a 
privilege, not a right, and the decision

[[Page 34462]]

to issue any license rests in the sole discretion of the Tribal 
Council.
    Section 5. Period of License. Each license may be issued for a 
period of not to exceed 2 years from the date of issuance.
    Section 6. Renewal of License. A licensee may renew its license if 
it has complied in full with this Title and has maintained its 
licensure with the State of California; however, the Tribal Council may 
refuse to renew a license if it finds that doing so would not be in the 
best interests of the health and safety of the citizens of the 
Augustine Band.
    Section 7. Revocation of License. The Tribal Council may revoke a 
license for reasonable cause upon notice and hearing at which the 
licensee shall be given an opportunity to respond to any charges 
against it and to demonstrate why the license should not be suspended 
or revoked.
    Section 8. Transferability of Licenses. Licenses issued by the 
Tribal Council shall not be transferable and may only be utilized by 
the person or entity in whose name it was issued.

Chapter VI--Taxes

    Section 1. Sales Tax. There is hereby levied and shall be collected 
a tax on each retail sale of alcoholic beverages on the reservation in 
the amount of 1 percent of the retail sales price. The tax imposed by 
this section shall apply to all retail sales of liquor on the 
reservation and to the extent permitted by law shall preempt any tax 
imposed on such liquor sales by the State of California.
    Section 2. Payment of Taxes to the Tribe. All taxes from the sale 
of alcoholic beverages on the Augustine Indian Reservation shall be 
paid over to the General Treasury of the Augustine Band and be subject 
to the distribution by the Tribal Council in accordance with its usual 
appropriation procedures for essential governmental and social 
services, including operation of the Tribal Council and administration 
of this Title.
    Section 3. Taxes Due. All taxes upon the sale of alcoholic 
beverages on the reservation are due on the first day of the month 
following the end of the calendar quarter for which the taxes are due. 
Past due taxes shall accrue interest at 18 percent per annum.
    Section 4. 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 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 alcoholic beverages on the reservation. Said 
review or audit may be done periodically by the Tribal Council through 
its agents or employees whenever in the discretion of the Tribal 
Council such a review or audit is necessary to verify the accuracy of 
reports.

Chapter VII--Rules, Regulations and Enforcement

    Section 1. In any proceeding under this title, proof of one 
unlawful sale or distribution of liquor shall suffice to establish 
prima facie intent or purpose of unlawfully keeping liquor for sale, 
selling liquor, or distributing liquor in violation of this title.
    Section 2. Any person who shall sell or offer for sale or 
distribute or transport in any manner any liquor in violation of this 
Title, or who shall operate or shall have liquor in his/her possession 
without a permit, shall be guilty of a violation of this Title 
subjecting him/her to civil damages assessed by the Tribal Council. 
Nothing in this Title shall apply to the possession or transportation 
of any quantity of liquor by citizens of the Augustine Band for their 
personal or other noncommercial use, and the possession, 
transportation, sale, consumption or other disposition of liquor 
outside public places on the Augustine Indian Reservation shall be 
governed solely by the laws of the State of California.
    Section 3. Any person within the boundaries of the Augustine Indian 
Reservation who, in a public place, buys liquor from any person other 
than at a properly licensed facility shall be guilty of a violation of 
this Title.
    Section 4. Any person who sells liquor to a person apparently under 
the influence of liquor shall be guilty of a violation of this Title.
    Section 5. No person under the age of 21 years shall consume, 
acquire or have in his/her possession any alcoholic beverages. Any 
person violating this section in a public place shall be guilty of a 
separate violation of this Title for each and every drink so consumed.
    Section 6. Any person who, in a public place, shall sell or provide 
any liquor to any person under the age of 21 years shall be guilty of a 
violation of this Title for each such sale or drink provided.
    Section 7. Any person guilty of a violation of this Title shall be 
liable to pay the Augustine Band up to five hundred dollars ($500) per 
violation as civil damages to defray the tribe's cost of enforcement of 
this Title. The amount of such damages in each case shall be determined 
by the Tribal Council based upon a preponderance of the evidence 
available to the Tribal Council after the person alleged to have 
violated this Ordinance has been given notice and an opportunity to 
respond to such allegations.
    Section 8. Whenever it reasonably appears to a licensed purveyor of 
liquor that a person seeking to purchase liquor is under the age of 27, 
the prospective purchaser shall be required to present any one of the 
following officially issued cards of identification which shows his/her 
correct age and bears his/ her 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;
    (3) Passport; and
    (4) Gaming license or work permit issued by the Tribal Council, if 
said license or permit contains the bearer's correct age, signature and 
photograph.

Chapter VIII--Abatement

    Section 1. Any public place where liquor is sold, manufactured, 
bartered, exchanged, given away, furnished, or otherwise disposed of in 
violation of the provisions of this Ordinance, and all property kept in 
and used in maintaining such place, is hereby declared to be a public 
nuisance.
    Section 2. The Chairperson of the Tribal Council or, if he/she 
fails or refuses to do so, a majority of the Tribal Council acting at a 
duly-called meeting at which a quorum is present, shall institute and 
maintain an action in a court of competent jurisdiction in the name of 
the Band to abate and perpetually enjoin any nuisance declared under 
this Title. Upon establishment that probable cause exists to find that 
a nuisance exists, restraining orders, temporary injunctions, and 
permanent injunctions may be granted in the cause as in other 
injunction proceedings, and upon final judgment against the defendant 
the court may also order the room, structure, or place closed for a 
period of one year or until the owner, lessee, tenant, or occupant 
thereof shall give bond of sufficient sum of not less than twenty five 
thousand dollars ($25,000), payable to the Band and conditioned that 
liquor will not be thereafter manufactured, kept, sold, bartered, 
exchanged, given away, furnished, or otherwise disposed of thereof in 
violation of the provision of this title of any other applicable tribal 
law, and that he/she will pay all fines, costs and damages assessed 
against him/ her for any violation of this title or other tribal liquor 
laws. If any conditions of

[[Page 34463]]

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

Chapter IX--Profits

    Section 1. The gross proceeds collected by the Tribal Council from 
all licensing of the sale of alcoholic beverages on the Augustine 
Indian Reservation, and from proceedings involving violations of this 
Title, shall be distributed as follows:
    (a) First, for the payment of all necessary personnel, 
administrative costs, and legal fees incurred in the enforcement of 
this Title; and
    (b) Second, the remainder shall be turned over to the General Fund 
of the Augustine Band and expended by the Tribal Council for 
governmental services and programs on the Augustine Indian Reservation.

Chapter X--Severability and Effective Date

    Section 1. If any provision or application of this Title is 
determined by judicial 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 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 Augustine Band that 
are inconsistent with the provisions of this Ordinance are hereby 
rescinded and repealed.
    Section 4. 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. Sec. 1154, but only to the extent required by the 
laws of the United States.

Chapter XI--Amendment

    This Ordinance may only be amended by a majority vote of members of 
the Tribal Council of the Augustine Band attending a duly-noticed 
meeting at which a quorum is present.

Chapter XII--Certification

    This Title was passed and amended at duly held and convened 
meetings of the Tribal Council on March 13, 2001 and April 18, 2001, as 
attested to and certified by MaryAnn Martin, Chairperson of the Tribal 
Council of the Augustine Band.

[FR Doc. 02-12012 Filed 5-13-02; 8:45 am]
BILLING CODE 4310-4J-P