[Federal Register Volume 73, Number 236 (Monday, December 8, 2008)]
[Notices]
[Pages 74509-74513]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29024]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Jena Band of Choctaw Indians Liquor Control Ordinance

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: This notice publishes the Liquor Control Ordinance of the Jena 
Band of Choctaw Indians. The Ordinance regulates and controls the 
possession, sale, and consumption of liquor within the tribal lands. 
The tribal lands are located in Indian Country and this Ordinance 
allows for possession and sale of alcoholic beverages within their 
boundaries. This Ordinance will increase the ability of the tribal 
government to control the tribe's liquor sales, 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 Ordinance is effective January 7, 2009.

FOR FURTHER INFORMATION CONTACT: Chanda M. Joseph, Tribal Operations 
Officer, Eastern Regional Office, 545 Marriott Drive, Suite 700, 
Nashville, TN 37214, Telephone (615) 564-6750; or Elizabeth 
Colliflower, Office of Tribal Services, 1849 C Street, NW., Mail Stop 
4513-MIB, Washington, DC 20240; Telephone (202) 513-7640; Fax (202) 
501-0679.

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 Tribal Council for the Jena Band of 
Choctaw Indians adopted this Liquor Code on June 14, 2007. The purpose 
of this Ordinance is to govern the sale, possession and distribution of 
alcohol within the tribal lands of the Jena Band of Choctaw Indians. 
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 Control Ordinance of the Jena Band 
of Choctaw Indians was duly adopted by the Tribal Council for the Jena 
Band of Indians on June 14, 2007.

    Dated: November 24, 2008.
George T. Skibine,
Acting Deputy Assistant Secretary for Policy and Economic Development.

    The Jena Band of Choctaw Indians Liquor Control Ordinance reads as 
follows:

The Jena Band of Choctaw Indians

Liquor Control Ordinance

Article I--Title

    This Ordinance shall be known as the ``Jena Band of Choctaw Indians 
Liquor Control Ordinance.''

Article II--Authority

    This Ordinance is enacted pursuant to the Act of August 15, 1953 
(Pub. L. 83-277, 67 Stat. 686, 18 U.S.C. 1161), the Constitution of the 
Jena Band of Choctaw Indians (the ``Constitution''), and the Tribe's 
inherent sovereign authority. The Tribal Council, as the governing body 
of the Tribe, is empowered pursuant to Article VIII, Section 1(j) and 
Section 1(l), respectively, of the Constitution to ``[p]romote and 
protect the health, peace, morals, education, and general welfare of 
the tribe and its members;'' and to ``[e]stablish policies relating to 
tribal economic affairs and enterprises consistent with this 
Constitution.'' Furthermore, the Tribal Council is empowered pursuant 
to Article VIII, Section 1(o) and Section 1(n), respectively, to 
``[p]ass any ordinance and/or resolution necessary or incidental to the 
exercise of any of the foregoing powers and duties'' and to

[[Page 74510]]

``[t]ax and regulate the activities of all persons or entities within 
Indian Country as permitted by law and to provide for the raising of 
revenue to meet the needs of the Tribe or to support Tribal 
governmental operations.''

Article III--Public Policy and Purpose

    In order to protect the health, safety, and social welfare of the 
members of the Jena Band of Choctaw Indians and the patrons of 
businesses located on Tribal Lands, and be consistent with the 
principles enunciated by the United States Supreme Court in United 
States v. Montana, 101 S. Ct. 1245 (1981), the Tribe, as an exercise of 
sovereign authority and self-determination, has enacted this Ordinance 
to regulate the introduction, possession, and sale of Liquor on Tribal 
Lands.
    The purpose of this Ordinance is to authorize, regulate, and 
control the introduction, possession, and sale of Liquor on the Tribal 
Lands of the Jena Band of Choctaw Indians in accordance with Federal 
law, the laws of the State of Louisiana, and the laws of the Jena Band 
of Choctaw Indians. The enactment of this Ordinance will enhance the 
ability of the Tribal government to control all Liquor related 
activities within the jurisdiction of the Tribe. This Ordinance is 
enacted in conjunction with the laws of the State of Louisiana 
applicable to the sale and distribution of Liquor pursuant to 18 U.S.C. 
1161.

Article IV--Scope

    This Ordinance applies to all Tribal Lands, as defined herein. This 
Ordinance shall extend to all Persons, as defined herein, receiving or 
requiring Licenses hereunder, or doing business on Tribal Lands, or 
having significant contacts within Tribal Lands, or residing within 
Tribal Lands, or entering into or coming within Tribal Lands, or 
consuming, possessing, manufacturing, or distributing Liquor within 
Tribal Lands. All such Persons shall be deemed to have consented to the 
jurisdiction of the Tribe, and shall, by virtue of such actions, be 
deemed to have waived all defenses to the jurisdiction and venue of the 
Tribe, the Tribal Gaming Commission, and the Tribal Court, 
notwithstanding that such Persons may be of non-Indian descent or 
character. Any sale or other commercial distribution of Liquor within 
Tribal Lands, other than sales and distribution in strict compliance 
with this Ordinance, is detrimental to the health, safety and welfare 
of the members of the Tribe and others and is therefore prohibited.

Article V--Definitions

    As used in this Ordinance, the following definitions shall apply:
    (a) Alcohol has the same meaning as the term ``Liquor'' as herein 
defined by this Ordinance.
    (b) Alcoholic Beverage or Beverages has the same meaning as the 
term ``Liquor'' as herein defined by this Ordinance.
    (c) Bar means any establishment with special space and 
accommodations for sale by the glass and for consumption on the 
premises, ``Liquor'', as herein defined.
    (d) 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 or cereal in pure water 
containing not more than four percent (4%) of Alcohol by volume. For 
the purpose of this Ordinance, any such beverage, including ale, stout, 
and porter, containing more than four percent (4%) of Alcohol by weight 
shall be referred to as ``strong beer.''
    (e) Gaming Facility means a building or buildings and accessory 
improvements located on Tribal Land, as defined herein, and used in the 
operation of Class II or Class III Gaming, as applicable, including all 
land upon which the building or buildings are situated that is 
appropriated for the use of the Gaming Facility, together with all 
parts of the Gaming Site and all related appurtenances and fixtures, 
including any ancillary or related hotel, resort or entertainment 
facilities.
    (f) Gaming Site or Site means the tract or tracts of Tribal Land 
upon which a Gaming Facility is located.
    (g) License means a liquor license duly issued by the Tribal Gaming 
Commission pursuant to this Ordinance.
    (h) Liquor means the four varieties of Liquor herein defined 
(Alcohol, Spirits, Wine and Beer), and all fermented spirituous, 
vinous, or malt liquor or combinations thereof and mixed liquor, or a 
part of which is fermented, spirituous, 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 preparations or 
mixtures capable of human consumption, and any liquid, semisolid, 
solid, or other substances that contains more than one percent (1%) of 
Alcohol by weight, shall be conclusively deemed to be intoxicating.
    (i) Liquor Store means 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.
    (j) Licensed Wholesaler means a wholesale seller of Liquor that is 
duly licensed by the Tribe and the State.
    (k) Malt liquor means Beer, strong beer, ale, stout and porter.
    (l) Management Contractor means a Person (other than the Tribe) 
holding a management contract entered into pursuant to 25 U.S.C. 
2710(d)(9) or 2711 and approved by the National Indian Gaming 
Commission pursuant to Part 532 (Approval of Management Contracts), 
Title 25, Code of Federal Regulations.
    (m) Ordinance means this Jena Band of Choctaw Indians Liquor 
Control Ordinance.
    (n) Package means any container or receptacle used for holding 
Liquor.
    (o) Patron means a person visiting premises licensed pursuant to 
this Ordinance and having the intent to purchase any goods or services 
for sale to the general public therein.
    (p) Person means any natural person, partnership, corporation, 
limited liability company, association, other statutory business entity 
and any sovereign.
    (q) Public Place means any location or premises on Tribal Lands to 
which the general public has unrestricted access and 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.
    (r) Sale and Sell means any exchange, barter, and traffic; and also 
includes 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.
    (s) Special Event means any social, charitable or for-profit 
discreet activity or event conducted by the Tribal Council or any 
Tribal enterprise on Tribal Lands at which Liquor is sold or is 
proposed to be sold.
    (t) Spirits means any beverage, which contains alcohol obtained by 
distillation; including wines exceeding seventeen percent (17%) of 
alcohol by weight.
    (u) State means the State of Louisiana and any of its agencies or 
instrumentalities.
    (v) State Law means the duly enacted applicable laws and 
regulations of the State of Louisiana, specifically, Title 26

[[Page 74511]]

and Title 55 of Louisiana Revised Statutes--Alcoholic Beverages, as 
amended from time to time.
    (w) Tribal Council means the governing body of the Tribe as defined 
in the Constitution.
    (x) Tribal Court means a court duly constituted under the 
Constitution of the Jena Band of Choctaw Indians, together with all 
tribunals provided for the appeal of the decisions of such court under 
Federal law.
    (y) Tribal Enterprise means any business entity, operation or 
enterprise owned, in whole or in part, by the Tribe.
    (z) Tribal Gaming Commission means the Jena Band Tribal Gaming 
Commission established pursuant to the Jena Band of Choctaw Indians 
Gaming Ordinance for the purpose of performing regulatory oversight and 
to monitor compliance with tribal, Federal, and State regulations, 
including this Ordinance.
    (aa) Tribal Lands mean all land over which the Tribe exercises 
governmental power and that is held in trust by the United States for 
the benefit of either the Tribe or individual members of the Tribe.
    (bb) Tribe or Tribal means or refers to the Jena Band of Choctaw 
Indians, which is recognized by the Secretary of the Department of the 
Interior of the United States as eligible for the special programs and 
services provided by the United States to Indians because of their 
status as Indians and recognized as possessing powers of self-
government.
    (cc) Wine means any alcoholic beverage obtained by fermentation of 
any fruits (grapes, berries, apples, etc.), or fruit juice, and 
containing not more than seventeen percent (17%) of alcohol by weight, 
including sweet wines fortified with wine spirits, such as port, 
sherry, muscatel and angelica, not exceeding seventeen percent (17%) of 
alcohol by weight.

Article VI--Powers of Enforcement

    The Tribal Gaming Commission is hereby delegated primary regulatory 
authority over the subject matter of this Ordinance. The Tribal Gaming 
Commission, in furtherance of this Ordinance, has the following powers 
and duties:
    (a) To promulgate, publish and enforce such reasonable rules and 
regulations regarding the purchase, sale, consumption and distribution 
of alcoholic beverages in public places on Tribal Lands, as the Tribal 
Gaming Commission deems necessary.
    (b) To employ managers, accountants, security personnel, inspectors 
and such other persons as shall be reasonably necessary to allow the 
Tribal Gaming Commission or its designee(s) to perform its functions 
and exercise its authority as set forth in this Ordinance, and such 
employees shall be tribal employees.
    (c) To issue Licenses permitting the introduction, possession, sale 
and/or distribution of Liquor on Tribal Lands.
    (d) To hold hearings on violations of this Ordinance or for the 
issuance, suspension, or revocation of Licenses for the sale of Liquor 
on Tribal Lands;
    (e) To bring suit in Tribal Court, in the name of the Tribe to 
enforce this Ordinance as the Tribal Gaming Commission may deem to be 
necessary;
    (f) To determine and seek damages and collect civil fines imposed 
by the Tribal Gaming Commission for violation of this Ordinance;
    (g) To publish notices and, in the case of any Tribal Council 
designee(s), make such reports to the Tribal Council as may be 
appropriate;
    (h) To collect sales taxes and fees levied or set by the Tribal 
Council on liquor sales and the issuance of liquor licenses, and to 
keep accurate records, books and accounts;
    (i) To take or facilitate all action necessary to follow or 
implement applicable provisions of the laws of the State as required;
    (j) To cooperate with appropriate State of Louisiana authorities 
for purposes of prosecution of any violation of any criminal law of the 
State of Louisiana; and
    (k) To exercise such other powers as may be necessary and 
appropriate, and in the case of any Tribal Council designee(s), 
delegated from time to time by the Tribal Council, to implement and 
enforce this Ordinance.
    In the exercise of its powers and duties under this Ordinance, the 
Tribal Gaming Commission and its individual members, employees and 
agents shall not:
    (a) Accept any gratuity, compensation or other thing of value from 
any liquor wholesaler, retailer or distributor, or from any licensee; 
or
    (b) Waive the immunity of the Tribe from suit except by express 
resolution of the Tribal Council, such waiver being subject to the 
following limitations: The waiver must be transaction specific, limited 
as to duration and beneficiary, include a provision that limits 
recourse only to specified assets or revenues of the Tribe or a Tribal 
entity, and specify the process and venue for dispute resolution, 
including applicable law.

Article VII--Application Requirements

    In order to control the proliferation of establishments within 
Tribal Lands that sell or provide Liquor, all persons or entities that 
desire to sell Liquor, whether wholesale or retail, within the exterior 
boundaries of the Tribal Lands must apply to the Tribal Gaming 
Commission 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 Tribal Lands for which no money is requested or 
paid.
    Any person applying for a License to sell or provide Liquor on 
Tribal Lands shall complete and submit an application provided for this 
purpose by the Tribal Gaming Commission and pay such application fee as 
may be set from time to time by the Tribal Gaming Commission, and 
approved by the Tribal Council, for this purpose. An incomplete 
application will not be considered.
    An application to sell or provide Liquor within Tribal Lands shall 
be submitted to the Tribal Gaming Commission, in triplicate; and 
application forms shall consist of the following:
    (a) The application shall set forth the name of the applicant 
organization; and
    (b) The application shall attach the ordinance(s) and resolution(s) 
under which the applicant organization is chartered and regulated; and
    (c) The application shall describe specifically the land or 
building where the applicant organization will sell intoxicating 
beverages or beer; and
    (d) The application shall conform to the requirements of the laws 
of the State as they relate to obtaining of liquor licenses elsewhere 
in the State.
    The Tribal Gaming Commission may reject any application for a 
License, or for a renewal of a License, under this Ordinance, if the 
applicant previously has committed acts which have resulted in the 
suspension or revocation of a License under this Ordinance.

Article VIII--Licensing

    In the event dual Tribal and State licenses are required by State 
Law, no person shall be allowed or permitted to sell or provide Liquor 
on the Tribal Lands unless such person is also licensed by the State, 
as required, to sell or provide such Liquor. If any such license from 
the State is revoked or suspended, any applicable Tribal License shall 
automatically be revoked or suspended.
    Licenses for the sale of Liquor issued by the Tribal Gaming 
Commission shall contain the following requirements:
    (a) Each license shall require its holder to conform its operations 
to State Law that relate to the sale or possession of Liquor;

[[Page 74512]]

    (b) No license shall be effective for a term more than one year 
from the date of its issuance, and each renewal thereof shall be 
subject to the same procedures that apply the initial issuance of a 
license;
    (c) Each license shall explicitly state that its continued validity 
is dependent upon the compliance of its holder with all provisions of 
this Ordinance and State Law that relates to the sale or possession of 
Liquor and, if applicable, a Tribal-State Gaming Compact or Class III 
Gaming Procedures issued by the Secretary of the Department of the 
Interior.
    The Tribal Gaming Commission may issue a License if it believes 
such issuance is in the best interests of the Tribe, the residents of 
the Tribal Lands, and the surrounding community. Licensure is a 
privilege, not a right, and the decision to issue any License rests in 
the sole discretion of the Tribal Gaming Commission. Licenses issued by 
the Tribal Gaming Commission shall not be transferable and may only be 
utilized by the person or entity in whose name it was issued.
    The public places on or within which Liquor is sold or distributed 
on Tribal Lands shall be open for inspection by the Tribal Gaming 
Commission or its designee(s) at all reasonable times for the purposes 
of ascertaining compliance with this Ordinance and other regulations 
promulgated pursuant hereto.

Article IX--Liquor Sales

    All Liquor sales shall be on Tribal Land, including leases thereon 
and shall be on a cash only basis. 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, debit credit cards or credit cards issued by 
any financial institution.
    Except for sales by Licensed Wholesalers, all sales shall be for 
the personal use and consumption of the purchaser or members of the 
purchaser's household, including guests, who are over the age of 
twenty-one (21). Resale of any Alcoholic Beverage purchased within the 
exterior boundaries of the Tribal Lands is prohibited. Any person who 
is not licensed pursuant to this Ordinance who purchases an Alcoholic 
Beverage within the Tribal Lands and re-sells it, whether in the 
original container or not, shall be guilty of a violation of this 
Ordinance and shall be subject to exclusion from the Tribal Lands or 
liability for money damages of up to five hundred dollars ($500), as 
determined by the Tribal Gaming Commission after notice and an 
opportunity to be heard.
    All distribution, sale and consumption of Liquor within the Tribal 
Lands shall be in compliance with this Ordinance and all applicable 
provisions of State Law.

Article X--Revocation Authority

    The Tribal Gaming Commission shall have the authority to revoke any 
License issued under this Ordinance, under the following procedures:
    (a) Upon receiving information that the holder of a License under 
this Ordinance may have violated the terms of the License or applicable 
State Law or Tribal Law, the Tribal Gaming Commission shall give the 
License holder written notice that the Tribal Gaming Commission intends 
to suspend or revoke the holder's License. Such notice shall be sent by 
certified mail, return receipt requested, to the License holder, and 
shall specify the grounds for the proposed suspension or revocation.
    (b) Any License holder who receives notice of a proposed suspension 
or revocation may request a hearing by the Tribal Gaming Commission, by 
sending a written request therefore by certified mail, return receipt 
requested, to the Chairman of the Tribal Gaming Commission at the 
Tribal Gaming Commission Office, within seven (7) days of the License 
holder's receipt of notice.
    (c) Upon receipt of a request for hearing under this Ordinance, the 
Tribal Gaming Commission shall set a date for a hearing, which shall be 
no later than thirty (30) days from the date of the receipt of the 
hearing request.
    (d) At a hearing held under this Ordinance, the holder of a License 
under this Ordinance shall be permitted to present evidence with 
respect to its compliance with the terms of its License and applicable 
State Law and Tribal Law. In reaching its decision, the Tribal Gaming 
Commission may consider such evidence, together with all other evidence 
it deems relevant. Following a hearing, if in the judgment of the 
Tribal Gaming Commission, the License holder has not complied with the 
terms of its License and applicable State Law and Tribal Law, the 
Tribal Gaming Commission shall suspend or revoke its License; and if in 
the judgment of a Tribal Court, and if not yet established the Tribal 
Council, the terms of the License and applicable State Law and Tribal 
Law have been complied with, the proceedings shall be dismissed. In 
either case, the decision of the Tribal Gaming Commission shall be 
final.

Article XI--Taxes

    The Tribal Gaming Commission shall have the authority to impose a 
sales tax on all wholesale and retail Liquor sales that take place 
within the Tribal Lands. Such tax may be implemented by duly enacted 
resolution of the Tribal Gaming Commission, as supplemented by 
regulations adopted by the Tribal Gaming Commission pursuant to this 
Ordinance. Any tax imposed by authority of this Article shall apply to 
all retail and wholesale sales of Liquor Tribal Lands, and to the 
extent permitted shall preempt any tax imposed on such Liquor sales by 
the State of Louisiana.
    All taxes imposed pursuant to this Article XI shall be paid over to 
the Jena Band of Choctaw Indians and be subject to distribution by the 
Tribal Council in accordance with its usual appropriation procedures 
for essential governmental functions and social services, including 
administration of this Ordinance.

Article XII--Use of Proceeds

    The gross proceeds collected by the Tribe from all Licensing of the 
sale of Alcoholic Beverages within the Tribal Lands and from fines 
imposed as a result of violations of this Ordinance, shall be applied 
as follows:
    (a) First, for the payment of all necessary personnel, 
administrative costs, and legal ees incurred in the enforcement of this 
Ordinance; and
    (b) Second, the remainder shall be turned over to the General Fund 
of the Tribe and expended by the Tribal Council for governmental 
services and programs on the Reservation.

Article XIII--Miscellaneous Provisions

    If any provision or application of this Ordinance is determined by 
judicial review to be invalid, such provision shall be deemed 
ineffective and void, but shall not render ineffectual the remaining 
portions of this Ordinance, which shall remain in full force and 
effect.
    This Ordinance shall be effective as of the date on which the 
Secretary of the Department of the Interior certifies this Ordinance 
and publishes the same in the Federal Register.
    Any and all prior resolutions, laws, regulations or ordinances 
pertaining to the subject matter set forth in this Ordinance are hereby 
rescinded and repealed in their entirety.
    All acts and transactions under this Ordinance shall be in 
conformity with the laws of the State of Louisiana to the extent 
required by 18 U.S.C. 1161 and with all federal laws regarding alcohol 
in Indian Country.

[[Page 74513]]

Article XIV--Amendments

    This Ordinance may be amended only pursuant to a duly enacted 
Tribal Council Resolution with certification by the Secretary of the 
Department of the Interior and publication in the Federal Register, if 
required.

Article XV--Sovereign Immunity

    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.

 [FR Doc. E8-29024 Filed 12-5-08; 8:45 am]
BILLING CODE 4310-4J-P