[Federal Register Volume 69, Number 150 (Thursday, August 5, 2004)]
[Notices]
[Pages 47456-47459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-17856]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Seneca Nation Sale and Consumption of Alcoholic Beverages

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: This notice publishes the Seneca Nation Liquor Control Code. 
The Code regulates and controls the possession, sale and consumption of 
liquor on the Seneca Nation. The land is located on trust land and this 
Code allows for the possession and sale of alcoholic beverages on the 
Seneca Nation and will increase the ability of the tribal government to 
control the Nation's 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.

[[Page 47457]]


EFFECTIVE DATE: This Code is effective on August 5, 2004.

FOR FURTHER INFORMATION CONTACT: Harold Spears, Eastern Regional 
Office, Division of Tribal Government, 711 Stewarts Ferry Pike, 
Nashville, Tennessee 37214, Telephone (615) 467-2953 or Ralph Gonzales, 
Office of Tribal Services, 1951 Constitution Avenue, NW., MS-320-SIB, 
Washington, DC 20240; 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 Seneca Nation adopted its Code, 
CN:R-04-10-04-19 on April 10, 2004.
    The purpose of this Code is to govern the sale, possession and 
distribution of alcohol on the Seneca Nation.
    This notice is published in accordance with the authority delegated 
by the Secretary of the Interior to the Assistant Secretary--Indian 
Affairs.
    I certify that this Liquor Ordinance, a Legislative Code of the 
Seneca Nation, was duly adopted by the Seneca Nation Tribal Council on 
March 15, 2004.

David W. Anderson,
Assistant Secretary--Indian Affairs.

    The Seneca Nation Liquor Control Code, CN:R-04-10-04-19 reads as 
follows:

Adopted by Seneca Nation Tribal Council by Resolution CN:R-04-10-04-19 
(April 10, 2004)

Seneca Nation of Indians Alcoholic Beverage Control Code

Section 1--Title

    This Code shall be known as the ``Seneca Nation of Indians 
Alcoholic Beverage Control Code.''

Section 2--Authority and Purpose

    The authority for this Code and its adoption by the Council of the 
Seneca Nation of Indians (``Nation Council'') is found in Article XIII 
of the Constitution of the Seneca Nation of Indians of 1848, as 
amended, and in the Act of August 15, 1953, Public Law 83-277, 18 
U.S.C. 1161.
    Pursuant to the inherent sovereignty of the Nation and in the 
exercise of the Nation's powers for the purpose of protecting the 
welfare, health, peace, morals and safety of Nation members, the Nation 
adopts this Code for the purpose of regulating and controlling the 
possession, sale and consumption of alcoholic beverages within the 
boundaries of the Seneca Nation Territory. This Code is enacted in 
conformity with the Nation's concurrent jurisdiction with the State of 
New York over alcoholic beverage regulation within the Seneca Nation 
Territory pursuant to the Act of August 15, 1953, Public Law 83-277, 18 
U.S.C. 1161.

Section 3--Relation to Other Seneca Nation Regulations

    Nation Council resolution CN: R-11-16-02-17, duly adopted by the 
Nation Council on November 16, 2002, is hereby repealed and replaced. 
Any and all prior ordinances, resolutions, regulations or other form of 
control of the Nation, whether written or unwritten, which authorize, 
prohibit, or deal with the sale of alcohol are hereby repealed and have 
no further force and effect. No Nation ordinance or regulation shall be 
applied in a manner inconsistent with the provisions of this Code.

Section 4--Application of This Code to Seneca Nation Territory

    The Seneca Nation lands to which this Code applies is the Indian 
Country that is subject to the jurisdiction of the Nation, including 
those lands acquired by the Nation in restricted fee status pursuant to 
the Seneca Nation Land Claims Settlement Act of 1990, 25 U.S.C. 
1774f(c). For the purposes of this Code only, all lands to which this 
Code applies shall be referred to herein as the ``Seneca Nation 
Territory.''

Section 5--Conformity With State Law and This Ordinance

    The possession, sale and consumption of alcoholic beverages within 
the Seneca Nation Territory shall be lawful provided that such 
possession is in conformity with both this Ordinance and the laws of 
the State of New York pursuant to 18 U.S.C. 1161.

Section 6--Definitions

    To the extent that definitions are consistent with Nation and 
federal law, terms used herein shall have the same meaning as defined 
in New York Consolidated Laws, Chapter 3-B (Alcoholic Beverage Control 
Law) and in Title 9, Subtitle B, Chapter I of the New York Regulations 
(Rules of the New York State Liquor Authority).
    (a) ``Alcohol'' shall mean ethyl alcohol, hydrated oxide of ethyl 
or spirit of wine from whatever source or by whatever process produced.
    (b) ``Alcoholic beverage'' shall mean any liquid suitable for human 
consumption, which contains one-half of one percent or more of alcohol 
by volume.
    (c) ``Beer'' shall mean and include any fermented beverages of any 
name or description, manufactured from malt, wholly or in part, or from 
any substitute therefore.
    (d) ``Distilled spirits'' shall mean any alcoholic beverage that is 
not beer, wine, sparkling wine or alcohol.
    (e) ``Liquor'' shall mean and include any and all distilled or 
rectified spirits, brandy, whiskey, rum, gin, cordials or similar 
distilled alcoholic beverages, including all dilutions and mixtures of 
one or more of the foregoing.
    (f) ``Minor'' shall mean any person under age twenty-one (21) years 
of age.
    (g) ``Nation Council'' shall mean the duly elected governing body 
of the Seneca Nation of Indians.
    (h) ``Nation Enterprise,'' for purposes of this Code only, shall 
mean those corporations chartered by the Nation and authorized to 
conduct Class II or III gaming and related commercial activities within 
Seneca Nation Territory pursuant to the Nation's Gaming Compact with 
New York State and that is licensed by the Nation Council after paying 
the appropriate fee set forth by the Nation Council by Resolution at 
not less than two hundred ($200.00) Dollars and not more than Five 
Thousand ($5,000) Dollars annually.
    (i) ``Possession or possessing'' shall mean over one's person, 
vehicle or other property and includes constructive possession through 
control without regard to ownership.
    (j) ``Purchase'' shall mean the exchange, barter, traffic, receipt, 
with or without consideration in any form.
    (k) ``Sale'' shall mean the exchange, barter, traffic, donation, 
with or without consideration, in addition to the selling, supplying or 
distribution by any means, by any person to any person.
    (l) ``State'' means the State of New York.
    (m) ``Transport'' shall mean the introduction of alcoholic beverage 
onto the Seneca Nation Territory by any means of conveyance for the 
purpose of sale, or distribution, to any licensed dealer.

Section 7--Powers of Enforcement

    (a) The Nation Council, or other designee as authorized by the 
Nation Council by Resolution, has primary regulatory authority over the 
subject matter of this Code. The Nation Council, or its duly authorized 
designee, shall have the following powers and duties:
    (b) To establish, publish and enforce rules and regulations 
governing the sale of alcoholic beverages within Seneca

[[Page 47458]]

Nation Territory. Such rules and regulations shall be in conformity 
with the rules and regulations of the State of New York and shall be 
approved by the Nation Council prior to taking effect;
    (c) To employ managers, accountants, security personnel, 
inspectors, and other such persons as may be reasonably necessary to 
ensure adequate enforcement of this Code;
    (d) To issue licenses permitting the sale of alcoholic beverages 
within Seneca Nation Territory;
    (e) To hold hearings on violations of this Code or for the issuance 
or revocation of licenses hereunder;
    (f) To bring suit to enforce this Code as necessary;
    (g) To determine penalties for violations of this Code;
    (h) To make such reports as may be required;
    (i) To collect fees levied or set in relation to this Code and keep 
accurate records, books and accounts; and
    (j) To exercise such other powers as is necessary and appropriate 
to fulfill the purposes of this Code.
    (2) The Marshals, the Seneca Nation Conservation officers, and the 
officers of the Seneca Nation Law Enforcement Department are authorized 
to enforce this Code within the Seneca Nation Territory. Such officials 
are authorized to confiscate and preserve evidence of all alcoholic 
beverages sold, introduced for purposes of sale, or possessed in 
violation of this Code within the Seneca Nation Territory.

Section 8--Conditions Regarding Sales of Alcoholic Beverages Within 
Seneca Nation Territory

    (a) License Required. The sale and introduction for purposes of 
sale of alcoholic beverages shall be unlawful within the Seneca Nation 
Territory unless pursuant to an alcoholic beverage license issued by 
the Nation Council or its duly authorized designee. Any person who is 
not licensed pursuant to this Code who sells, or introduces for sale, 
alcoholic beverages within the Seneca Nation Territory, whether in the 
original container or not, shall be guilty of a violation of this Code 
and shall be subject to a fine under this Code.
    (b) Unlawful Possession. The possession and consumption of 
alcoholic beverages shall be unlawful on the public lands of the Seneca 
Nation Territory, including public highways, bridges, Nation property, 
parking lots, driveways and surrounding Nation Buildings. Any person 
who possesses or consumes alcoholic beverages in violation of this 
provision shall be guilty of a violation of this Code and shall be 
subject to a fine under this Code.
    (c) Possession by minors. It shall be unlawful for any person under 
the age of twenty-one to possess or consume alcoholic beverages, or for 
any person to give alcoholic beverages to any person under the age of 
twenty-one, within the Seneca Nation Territory. Any person in violation 
of this provision shall be guilty of a violation of this Code and shall 
be subject to a fine under this Code.
    (d) Sale to minors. It shall be unlawful for any person to maintain 
a premises within the Seneca Nation Territory where alcoholic beverages 
are consumed, possessed or served to any person under the age of 
twenty-one. Any person in violation of this provision shall be guilty 
of a violation of this Code and shall be subject to a fine under this 
Code.

Section 9--Violations of the Code Within Seneca Nation Territory

    (a) The Nation may bring an action in the Peacemakers' Court 
against any person for violation of the provisions of this Code within 
Seneca Nation Territory. The action shall be initiated by the filing of 
a written complaint with the court of the tribal prosecutor, sworn to 
by a person having personal knowledge of the charged violation, or by a 
Marshal or Seneca Nation Law Enforcement officer having personal 
knowledge of the charged violation. The complaint shall set forth the 
essential facts charging that named individual has violated the Code. 
Such action, including any appeal which is taken from the decision of 
the Peacemakers' Court, shall be governed by the Seneca Nation of 
Indians Peacemakers' Court and surrogate's court civil procedure rules.
    (b) Any person found to have violated the Code shall pay a fine of:
    (1) No more than $5000 and no less than $0 for a Section 8(a) 
violation, plus court costs.
    (2) No more than $5000 and no less than $0 for a Section 8(b) 
violation, plus court costs.
    (3) No more than $5000 and no less than $0 for a Section 8(c) 
violation, plus court costs.
    (4) No more than $5000 and no less than $0 for a Section 8(d) 
violation, plus court costs.
    In addition to the penalty described for such violation, all 
alcoholic beverages confiscated from any person found to have violated 
this Code shall be destroyed.
    (c) In lieu of imposing a fine pursuant to subsection (b) above, 
the Peacemakers' Court may employ the procedure provided in section 4-
102(a), (b) of the Seneca Nation of Indians Peacemakers' Court and 
surrogate's court civil procedure rules.
    (d) Any person found to have violated this Code who is charged with 
a second subsequent violation may be referred to any other jurisdiction 
which the Peacemakers' Court determines has concurrent jurisdiction 
over the charge.
    (e) In addition to other remedies, the Peacemakers' Court may 
enjoin any person in violation of this Code.

Section 10--Licensing

    (1) License Requirements. No license shall be issued under this 
Code except upon a sworn application filed with the Nation Council, or 
its duly authorized designee, containing a full and complete showing of 
the following:
    (a) Satisfactory proof that the applicant is duly licensed by the 
State of New York to sell alcoholic beverages.
    (b) Satisfactory completion of a background investigation including 
but not limited to a determination that the applicant is of good 
character and reputation and that the applicant is financially 
responsible.
    (c) The description and location of the premises in which the 
alcoholic beverages are to be sold and proof that the applicant is 
entitled to use such premises for such purposes for the duration of the 
time period of the license.
    (d) Agreement by the applicant to accept and abide by all 
conditions of the license as established by the Nation Council.
    (e) Payment of a fee established by the Nation Council.
    (f) Satisfactory proof that neither the applicant, nor the 
applicant's spouse, nor any principal owner, officer, shareholder, or 
director of the applicant, has ever been convicted of a felony or a 
crime of moral turpitude as defined by the laws of the State of New 
York.

Section 11--Processing Applications for Tribal Alcoholic Beverages 
License

    The Nation Council will consider the merits of applications for 
alcoholic beverages licenses based on the following factors:
    (1) whether the requirements of Section 10 have been met; and
    (2) whether granting the license is in the best interests of the 
Nation.
    No member of the Nation Council shall be a part of the decision 
making process of an application submitted by a Nation Council member 
or any person in the immediate family of a Nation Council member.

[[Page 47459]]

Section 12--Temporary Permits

    The Nation Council may grant a temporary permit for the sale of 
alcoholic beverages, in any form, for a period not to exceed 3 days to 
any persons applying for the same in connection with a tribal or 
community activity, provided that the conditions prescribed in Sections 
8 of this Code shall be observed by the permittee. Each permit issued 
shall specify the types of alcoholic beverages to be sold, the time, 
date and location permitted. A fee, as set by the Nation Council, will 
be assessed on temporary permits.

Section 13--Conditions of the Tribal License

    (1) Any license issued under this Code shall be subject to such 
reasonable conditions, as the Nation Council shall fix, including, but 
not limited to the following:
    (a) The license shall be for a term not to exceed 2 years.
    (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 open to inspection by duly 
authorized tribal officials at all times during regular business hours.
    (d) Alcoholic beverages shall be sold, served, disposed of, 
delivered or given to any person, and consumed on the licensed premises 
in conformity with the hours and days prescribed by the laws of the 
State, and in accordance with the hours fixed by the Nation Council.
    (e) All acts and transactions under authority of a alcoholic 
beverages license shall be in conformity with State and Federal law, 
and shall be in accordance with this Code and any license issued 
pursuant to this Code.
    (f) No person under the age permitted under the laws of the State 
(21 years) shall be sold, served, delivered, given, or allowed to 
consume alcoholic beverages.
    (g) There shall be no discrimination in the operations under the 
license by reason of race, color, or creed.

Section 14--License not a Property Right

    Notwithstanding any other provision of this Code, a alcoholic 
beverages license is a mere permit for a fixed duration of time. An 
alcoholic beverages license shall not be deemed a property right or 
vested right of any kind, nor shall the granting of a alcoholic 
beverages license give rise to a presumption of legal entitlement to 
the granting of such license for a subsequent time period.

Section 15--Assignment or Transfer

    No license issued under this Code shall be assigned or transferred 
without the written approval of the Nation Council expressed in a 
formal resolution.

Section 16--Inspection Rights

    The premises upon which alcoholic beverages is sold or distributed 
shall be open to inspection by the Nation Council or its authorized 
designee during all hours of operation for the purposes of ascertaining 
compliance with this Code.

Section 17--Sovereign Immunity Preserved

    Nothing in this Code is intended nor shall be construed as a waiver 
of sovereign immunity by the Nation. No officer, manager or employee of 
any Nation Enterprise shall be authorized nor shall attempt to waive 
the sovereign immunity of the Nation.

Section 18--Disclaimer

    Nothing in this Code shall be construed to authorize or require the 
criminal trial and punishment of non-Indians by the Nation except to 
the extent allowed by an applicable present or future Act of Congress 
or any applicable laws.

Section 19--Regulations

    The Nation Council shall have the exclusive authority to adopt and 
enforce the rules and regulations to implement this Code on the Seneca 
Nation Territory and to further the purposes of this Code. Such rules 
and regulations shall have the force of law upon promulgation by Nation 
Council Resolution.

Section 20--Severability

    If any clause, part or section of this Code shall be adjudged as 
invalid, such judgment shall not affect or invalidate the remainder of 
the ordinance but shall be confined in its operation to the clause, 
part or section directly involved in the controversy in which such 
judgment was rendered.

Section 21--Effective Date

    This Code shall be effective upon the date that the Secretary of 
Interior certifies this Code and it is published in the Federal 
Register.

Section 22--Duration

    The duration of this Code shall be perpetual until repealed or 
amended by Nation Council Resolution.
[FR Doc. 04-17856 Filed 8-4-04; 8:45 am]
BILLING CODE 4310-4J-P