[Federal Register Volume 69, Number 81 (Tuesday, April 27, 2004)]
[Notices]
[Pages 22868-22870]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9497]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Middletown Rancheria Tribe Sale and Consumption of Alcoholic 
Beverages

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: This notice publishes the Middletown Rancheria Tribal Liquor 
Control Ordinance. The Ordinance regulates and controls the possession, 
sale and consumption of liquor on the Middletown Rancheria. The land is 
located on trust land and this ordinance allows for the possession and 
sale of alcoholic beverages on the Middletown Rancheria and 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 
services.

DATES: Effective Date: This code is effective on April 27, 2004.

FOR FURTHER INFORMATION CONTACT: Iris Drew, Southwest Regional Office, 
Branch of Tribal Government, P.O. Box 26567, Albuquerque, New Mexico 
87125-6567; Telephone (505) 346-7592 or Ralph Gonzales, Office of 
Tribal Services, 1951 Constitution Avenue, NW., MS-320-SIB, Washington, 
DC 20245; telephone (202) 513-7629.

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 Middletown Rancheria Tribe adopted 
Tribal Ordinance No. 03-03-01 on March 1, 2003. The purpose of this 
ordinance is to govern the sale, possession and distribution of alcohol 
on the Middletown 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 Liquor Ordinance No. 03-03-01 was duly adopted by 
the Middetown Rancheria Tribal Council on March 1, 2003.

    Dated: April 15, 2004.
David W. Anderson,
Assistant Secretary--Indian Affairs.

    The Middletown Rancheria Tribal Liquor Control Ordinance 
03-03-01 reads as follows:

Middletown Rancheria Band of Pomo Indians Liquor Ordinance 03-
03-01

Chapter I--Introduction

    Section 101. Title. This ordinance shall be known as the 
``MIDDLETOWN RANCHERIA BAND OF POMO INDIANS LIQUOR ORDINANCE 
03-03-01.''
    Section 102. Authority. This ordinance is enacted pursuant to 
the Act of August 15, 1953 (Pub. L. 83-277, 67 Stat. 588, 18 U.S.C. 
1161) and the Interim Governing Procedures (Approved 1994) of the 
Middletown Rancheria.
    Section 103. Purpose. The purpose of this ordinance is to 
regulate and control the possession and sale of liquor on the 
Middletown 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.
    Section 104. Community opinion within the Tribe supports the 
enactment of this ordinance.
    Section 105. This ordinance shall apply to the Middletown 
Rancheria, including all lands within the exterior boundaries of the 
Rancheria.
    Section 106. This ordinance conforms to, and is not inconsistent 
with, tribal, State and Federal law.

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 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 Interim Governing Procedures of the Middletown Rancheria.
    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; and every liquor 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.
    Section 211. Rancheria. Means land held in trust by the United 
States Government for the benefit of the Middletown Rancheria Tribe 
(see also Section 216, Tribal Land).
    Section 212. Sale and Sell. Include exchange, barter, and 
traffic; and also include 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 
Middletown Rancheria Band of Pomo Indians.
    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 Middletown Rancheria Band of Pomo 
Indians.
    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.

[[Page 22869]]

Chapter III--Powers of Enforcement

    Section 301. Powers. The General Council, in furtherance of this 
ordinance, shall have the following powers and duties:
    (a) To publish and enforce the rules and regulations governing 
the sale, manufacture, and distribution of alcoholic beverages on 
the Rancheria;
    (b) To 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) To issue licenses permitting the sale or manufacture or 
distribution of liquor on the Rancheria;
    (d) To hold hearings on violations of this ordinance or for the 
issuance or revocation of licenses hereunder;
    (e) To bring suit in the appropriate court to enforce this 
ordinance as necessary;
    (f) To determine and seek damages for violation of this 
ordinance;
    (g) To make such reports as may be required by the General 
Membership;
    (h) To collect taxes and fees levied or set by the General 
Council and to keep accurate records, books, and accounts; and
    (i) To 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 license.
    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 lessees 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 Licenses. 
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 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 permitted. 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 license 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

[[Page 22870]]

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 Person 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 separate violations 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 21 years, shall be guilty of violating 
the 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 crimes 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 person's 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 Military Duty; 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 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.
    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 person 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 it in any way limit, alter, restrict, or waive the 
Tribe's sovereign immunity from unconsented suit or action.

Certification

    We the undersigned, as duly elected officers of the Middletown 
Rancheria Band of California Pomo Indians, do hereby certify that 
Liquor Ordinance 03-03-01 was duly enacted by the General 
Council of the Middletown Rancheria, at a duly called, noticed and 
convened General Council Meeting on Saturday, March 1, 2003, where 
the General Council Membership was present by a vote of 12 For, and 
1 Against, with 0 Abstaining and that this Ordinance shall become 
effective on the date of approval by the Secretary of the Interior 
or his authorized representative.

    March 1, 2003.

Jose Simon, II,
Tribal Chairman.

    March 1, 2003.

Attested by:
Pamela Reyes-Gutierrez,
Tribal Secretary.

[FR Doc. 04-9497 Filed 4-26-04; 8:45 am]
BILLING CODE 4310-4J-P