[Federal Register Volume 77, Number 35 (Wednesday, February 22, 2012)]
[Notices]
[Pages 10547-10551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-4052]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Kickapoo Traditional Tribe of Texas--First Amended Beer and 
Liquor Tax Ordinance

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: This notice publishes the amendment to the Kickapoo 
Traditional Tribe of Texas' Beer and Liquor Tax Ordinance. The 
Ordinance regulates and controls the possession, sale and consumption 
of liquor within the Kickapoo Traditional Tribe of Texas' Reservation. 
The land is trust land and this Ordinance allows for the possession and 
sale of alcoholic beverages within the Kickapoo Traditional Tribe of 
Texas' Reservation. This Ordinance will increase the ability of the 
tribal government to control the distribution and possession of liquor 
within their reservation, and at the same time will provide an 
important source of revenue, the strengthening of the tribal government 
and the delivery of tribal services.

DATES: Effective Date: This Amendment is effective as of March 23, 
2012.

FOR FURTHER INFORMATION CONTACT: Suzanne Chaney, Community Services 
Officer, Southern Plains Regional Office, Bureau of Indian Affairs, 
P.O. Box 368, Anadarko, OK 73005, Phone: (405) 247-1537; Fax: (404) 
247-9240: or De Springer, Office of Indian Services, Bureau of Indian 
Affairs, 1849 C Street NW., MS-4513-MIB, Washington, DC 20240; 
Telephone (202) 513-7640.

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 Kickapoo Traditional Tribe of Texas 
adopted this amendment to the Kickapoo Traditional Tribe of Texas' Beer 
and Liquor Tax Ordinance by Resolution No. 2011-892 on March 30, 2011.
    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 the Kickapoo Traditional Tribal Council duly 
adopted this amendment to the Kickapoo Traditional Tribe of Texas' Beer 
and Liquor Tax

[[Page 10548]]

Ordinance on by Resolution No. 2011-892 on March 30, 2011.

    Dated: February 9, 2012.
Larry Echo Hawk,
Assistant Secretary--Indian Affairs.
    The First Amended Kickapoo Traditional Tribe of Texas' Beer and 
Liquor Tax Ordinance reads as follows:

Section 100. Enactment Clause

    This Ordinance is enacted pursuant to Article VII Sections g, h, j, 
k and r of the constitution of the Kickapoo Traditional Tribe of Texas. 
Be it enacted by the Council of the Kickapoo Traditional Tribe of Texas 
(``KTTT''), the following Beer and Liquor Tax Ordinance.

Section 101. Title and Purpose

    This Chapter shall be known as the Kickapoo Traditional Tribe of 
Texas Beer and Liquor Tax Ordinance. These laws are enacted to regulate 
the sale and distribution of liquor and beer products on all properties 
under the jurisdiction of the KTTT and to create the Kickapoo Tax 
Commission, which will be in charge of taxing beer and liquor sales to 
generate revenues so as to fund needed tribal programs and services.

Section 102. Definitions

    Unless otherwise required by the context, the following words and 
phrases shall have the designated meanings:
    (1) ``Tribe and/or Tribal and/or KTTT'' shall mean the Kickapoo 
Traditional Tribe of Texas.
    (2) ``Tribal Council'' shall mean the Kickapoo Traditional Tribe of 
Texas Tribal Council as constituted by Section 1 Articles III and V, 
respectively of the Constitution of the Kickapoo Traditional Tribe of 
Texas.
    (3) ``Commission'' shall mean the Kickapoo Tax Commission.
    (4) ``Tribal Lands'' shall mean Indian Country as defined by 18 
U.S.C. Section 1151 subject to the jurisdiction of the KTTT, including 
without limitation:
    (a) Tribal Trust Land. Any lands and waters held in trust by the 
Federal Government within the jurisdiction of the KTTT;
    (b) Tribal Properties in Trust Statutes Process. Lands and water in 
process to achieve trust status under the Federal Government within the 
jurisdiction of the KTTT; and
    (c) Other Properties. All other lands and waters however acquired 
and not currently in process to achieve trust status under the Federal 
Government within the jurisdiction of the KTTT.
    (5) ``Sales'' shall mean the transfer, exchange or barter, by any 
means whatsoever, for a consideration by any person, association, 
partnership, or corporation, of liquor and beer products.
    (6) ``Alcohol'' means and includes hydrated oxide of ethyl, ethyl 
alcohols, ethanol, spirits, or wine, and beer in concentration of more 
than one half of one percent of alcohol by volume, from whatever source 
or by whatever source or whatever process produced including all 
dilutions and mixtures of the substance.
    (7) ``Beer'' means any malt beverage containing one half of one 
percent or more alcohol by volume and not more than four percent 
alcohol by weight and obtained by the alcoholic fermentation of an 
infusion or decoction of pure hops, or pure extract of hops, barley, or 
other grain, malt or similar products. ``Beer'' includes among other 
things, beer, ale, stout, lager beer, porter and other malt or brewed 
liquors.
    (8) ``Liquor'' or ``Alcoholic Beverage'' means any alcoholic 
beverage including alcohol, spirits, wine, whiskey, brandy, gin, rum, 
ale, malt liquor, tequila, mescal, habanero and/or barreteago and beer 
in excess of 4% alcohol concentration and all fermented, spirituous, 
vinous or malt liquor or any other intoxicating liquid, solid, semi-
solid or other substance, patented or not, containing alcohol, spirits, 
wine or beer and intended for oral consumption.
    (9) ``Licensed Premises'' means the location within the KTTT at 
which a person licensed to sell alcoholic beverages under this 
ordinance carries on such business, and includes all related and 
associated facilities under the control of the Licensee whether they 
are called a licensed premises, outlet or liquor outlet. Moreover, 
where a Licensee's business is carried on as part of the operation of 
an entertainment or recreational facility, the ``licensed premises'' 
shall be deemed to include the entire entertainment or recreational 
facility and associated areas.
    (10) ``Operator'' shall mean any person twenty-one (21) years of 
age or older, properly licensed by the Commission to operate a liquor 
and/or beer outlet.
    (11) ``License'' shall mean the privilege granted pursuant to this 
ordinance to any person to sell or distribute liquor or beer within the 
KTTT Jurisdiction.
    (12) ``Chairman'', as used in this Ordinance, shall mean the 
chairman of the Tax Commission. The Tribal Council will name the 
Chairman of the Tax Commission. The Chairman will have the authority to 
call and preside over meetings, recommend policies and other action to 
be taken, and represent the commission with third parties.

Section 103. Prohibition

    The sale, introduction for sale, purchase, or other dealing in 
beer, liquor and/or alcoholic beverages, except as is specifically 
authorized by this title, is prohibited within Tribal Lands.

Section 104. Liquor and Beer Tax Commission

    Enactment: The Kickapoo Traditional Tribe of Texas' Tax Commission 
is hereby created. The Commission shall consist of seven (7) 
Commissioners to be appointed by the Tribal Council. The initial 
Commission shall serve for staggered terms, three of the initial 
members will serve for two years. The remaining four initial members 
will serve for four years. Thereafter the Tribal Council will appoint 
or reappoint, as determined by the Tribal Council to be in the best 
interest of the Commission, Commissioners to four year terms. Five of 
the Commission shall be Tribal members. All decisions, actions and/or 
orders shall be by majority vote. A minimum of four members of the 
commission will constitute a quorum. No action will be taken, order or 
decision made unless there is a quorum present at the meeting where 
said action, order and/or decision is being voted upon. The Commission 
shall operate by policies and procedures approved by the Tribal 
Council. The minimum qualifications a person must have to serve as a 
Commissioner shall be as follows:
    (1) Must be over the age of eighteen (18); and
    (2) Must have no felony convictions.
    The Commission shall be empowered to:
    (1) Administer this law by exercising general control, management, 
and supervision of all liquor and beer sales, places of sale and sales 
outlets as well as exercising all powers necessary to accomplish the 
purpose of this law.
    (2) Subject to Tribal Council approval, adopt rules and regulations 
in furtherance of the purpose of this law and in the performance of its 
administrative functions.
    (3) Enforce the rules and regulations in furtherance of the purpose 
of this law and in the performance of its administrative functions.

Section 105. Application For Liquor and Beer Outlet License

    (1) Application. Any person twenty one (21) years of age or older, 
may apply to the Commission for a liquor and/or beer outlet license.
    (2) Licensing Requirements. The person applying for such license 
must

[[Page 10549]]

make a showing once a year and must satisfy the Commission of the 
following, including but not limited to:
    (a) That applicant is a person of good moral character;
    (b) That applicant has never been convicted of violating any of the 
laws regarding the regulation of any spirituous, vinous, fermented or 
malt liquors, or of the gambling laws of the KTTT, the state of Texas, 
or any other tribe of the state of Texas or of the United States, or 
any foreign country, within three (3) years immediately preceding the 
date of the application;
    (3) Processing of Application. The Commission Chairperson or 
Authorized Representative shall receive and process applications and be 
the official representative of the Commission regarding receipt of 
applications and related Kickapoo Traditional Tribe of Texas matters. 
If the Commission or its authorized representative is satisfied that 
the applicant meets the criteria in Section 105(2)(a) and (b) above, 
the Commission or its authorized representative may issue a license for 
the sale of liquor and/or beer products.
    (4) Application Fee. Each Beer and/or Liquor License application 
shall be accompanied by a non-refundable application fee to be set by 
regulation of the Commission, with the concurrence of the Tribal 
Council.
    (5) Discretionary Licensing. Nothing herein shall be deemed to 
create a duty or requirement to issue a license. Issuance of licenses 
is discretionary upon the Commission's determination of the best 
interest of the KTTT and the licensing grants a privilege, but not a 
property right, to sell liquor and/or beer within the jurisdiction of 
the KTTT at the licensed outlet(s).

Section 106. Liquor and Beer Licenses

    Upon approval of an application, the Commission shall issue the 
applicant a liquor and/or beer license, valid for one year from the 
date of issuance, which shall entitle the operator to establish and 
maintain only the type of outlet being permitted. This license shall 
not be transferable. The licensee must properly and publicly display 
the license in the place of business. It shall be renewable at the 
discretion of the Commission, by the submission by the Licensee of a 
subsequent application form and the payment of the application fee as 
provided in Section 105.

Section 107. Sales by Liquor Wholesalers and Transport of Liquors Upon 
The Kttt Indian Country

    (1) Right of Commission to Scrutinize Suppliers. The Operator of 
any licensed outlet shall keep the Commission informed, in writing, of 
the identity of suppliers and/or wholesalers who supply or are expected 
to supply liquor or beer stocks to the outlet(s). The Commission may, 
at its discretion, limit or prohibit the purchase of said stock from a 
supplier or wholesaler for the following reasons: Nonpayment of tribal 
taxes; bad business practices, or sale of unhealthy supplies. A ten 
(10) day notice to stop supplier's purchases will be given by the 
Commission. However a stop purchase order may take effect immediately 
if there is a health emergency.
    (2) Freedom of Information from Suppliers. Operators shall, in 
their purchase of stock and in their business relations with suppliers, 
cooperate with and assist the free flow of information and data to the 
Commission from suppliers relating to sales and business arrangements 
between the suppliers, retailers and operators. The Commission may, at 
its' discretion, require the receipts from the suppliers of all 
invoices, bills of lading, billings or other documentary receipts of 
sales to the Operators.
    (3) Businesses shall comply with applicable Tribal Laws, for 
domestication or entry of foreign corporations.

Section 108. Sales by Retail Operators

    (1) Commission Procedures. The Commission shall adopt procedures 
which shall implement these laws and facilitate their enforcement. 
These procedures shall include prohibitions on sales to minors, provide 
for the locations where liquor may be consumed, identify persons 
prohibited from purchasing alcoholic beverages, designating hours and 
days when outlets may be open for business, regulate any other 
appropriate matters and institute controls of same.
    (2) Sales to Minors. No person shall give, sell, or otherwise 
supply liquor or beer to any person less than twenty-one (21) years of 
age, either for his or her own use or for the use of his parents or for 
use of any other person.
    (3) Consumption of Beer or Liquor upon Licensed Premises shall be 
prohibited unless otherwise allowed by regulation.
    (4) Conduct on Licensed Premises.
    (a) No Operator shall be disorderly, boisterous, or intoxicated on 
the licensed premises or any public premises adjacent thereto which are 
under his or her control, nor shall he or she permit any disorderly, 
boisterous, or intoxicated person to be thereon; nor shall he or she 
use or allow the use of profane or vulgar language thereon.
    (b) No Operator shall permit suggestive, lewd, or obscene conduct 
or acts on his or her premises. For the purpose of this section, 
suggestive, lewd or obscene acts of conduct shall be those acts or 
conduct identified as such by the laws of the KTTT or that may be 
considered as such by a reasonable person.
    (5) Employment of Minors. No person under the age of twenty-one 
(21) years shall be employed in any service in connection with the sale 
or handling of liquor and/or beer, either on a paid or voluntary basis.
    (6) Operator's Premises Open to Inspector. The premises of all 
Operators including vehicles used in connection with beer and/or liquor 
sales, shall be open at all times to inspection by the Commission or 
its designated representative.
    (7) Operator's Record. The originals or copies of all sales slips, 
invoices, and other memoranda, covering all purchases of beer and/or 
liquor by the Operator shall be kept on file on the retail premises of 
the Operator purchasing the same, for at least three (3) years after 
each purchase and shall be filed separately and kept apart from all 
other records and as nearly as possible shall be filed in consecutive 
order with each month's records kept separate so as to render the same 
readily available for inspection. All canceled checks, bank statements 
and books of accounting covering or involving the purchase of beer and/
or liquor, and all memoranda showing payment for beer and/or liquor 
other than by check shall be likewise preserved for availability for 
inspection.
    (8) Conformity with State Law. Operators shall comply with the 
State of Texas Alcoholic Beverage Code to the extent required by 18 
U.S.C. 1161. However, the KTTT shall have the fullest jurisdiction 
allowed under federal law over liquor and beer and related products or 
activities, within the boundaries of all the Tribal Lands as defined 
herein.

Section 109. Tribal Excise Tax Imposed Upon Distribution of Beer and 
Liquor

    (1) Tribal Excise Taxes. The Tribe shall have authority to assess 
and collect tax on sales of liquor and beer products to the consumer or 
purchaser. The tax shall be collected and paid to the Commission upon 
Liquor and Beer products sold within the jurisdiction of the Tribe. The 
Tribe may establish differing tax rates for any given class of 
merchandise, which shall be paid prior to the time of retail sales and 
delivery thereof.

[[Page 10550]]

    (2) Added to Retail Price. An excise tax, to be set by the Tribal 
Council of the KTTT, on wholesale prices shall be added to the retail 
selling price of liquor and beer products sold to the consumer. Said 
excise tax will be presumed to be direct taxes on the retail consumer, 
pre-collected for the purpose of convenience and facility only.
    (3) Within 72 hours after receipt of any beer or alcoholic beverage 
by any wholesaler or retailer subject to this Ordinance, a tribal tax 
stamp shall be securely affixed to each package, denoting the 
collection of the tribal tax. Retailers or sellers of beer or alcoholic 
beverages within KTTT jurisdiction may buy and sell or have in their 
possession only beer or alcoholic beverages which have the Tribal stamp 
affixed to each package.

Section 110. Liability for Bills

    The KTTT and/or the Commission shall have no legal responsibility 
for any unpaid bills owed by a liquor or beer outlet to a wholesaler 
supplier or any other person or entity.

Section 111. Other Business by Operator

    An Operator may conduct another business simultaneously with 
managing a liquor or beer outlet. provided, if such other business may 
in any manner be affiliated or related to the beer or liquor outlet, it 
must be approved by majority vote of the Commission prior to 
initiation. Said other business may be conducted on the same premises 
as a liquor or beer outlet, provided that the Operator shall maintain 
books of account that clearly differentiate the liquor or beer portion 
of the business.

Section 112. Tribal Liability and Credit

    (1) No liability. Unless explicitly authorized by Tribal statute, 
Operators are forbidden to represent or give the impression to any 
person or entity that he or she is an official representative of either 
the KTTT or the Commission, authorized to pledge tribal credit or 
financial responsibility for any of the expenses of his or her business 
operation. The Operator shall hold the KTTT harmless from all claims 
and liability of whatever nature. The Commission shall revoke 
Operator's licensees) if said outlet(s) is not operated in a 
businesslike manner, if it does not remain financially solvent, or does 
not pay its operating expenses and bills before they become delinquent.
    (2) Insurance. The Operator shall maintain at his or her expense 
adequate Insurance covering liability, fire, theft, vandalism and other 
insurance risks. The Commission may establish as a condition of any 
license, the required insurance limits and additional coverage deemed 
advisable, proof of which shall be filed with the Commission.

Section 113. Audit and Inspection

    (1) All of the books and other business records of the licensed 
premises shall be available for inspection and audit by the Commission 
or its authorized representative at any reasonable time.
    (2) Bond for Excise Tax. The excise tax together with reports on 
forms to be approved by the Commission shall be remitted to the 
Commission's office on a monthly basis, unless the Commission specifies 
otherwise in writing. The Operator shall furnish a bond in an amount 
satisfactory to the Commission, guaranteeing his payment of excise 
taxes.

Section 114. Revocation of Opertor's License

    (1) Failure of an Operator to abide by the requirements of this 
Ordinance and any additional regulations or requirements imposed by the 
Commission will constitute grounds for revocation of the Operator's 
License as well as enforcement of the penalties provided in Section 115 
of this Act.
    (2) Upon determining that any person licensed by the Commission to 
sell beer or alcoholic beverage is for any reason no longer qualified 
to hold such license or reasonably appears to have violated any terms 
of the Tribal and/or state license or regulations. The Chairman shall 
immediately serve written notice upon licensee directing that he show 
cause within ten (10) days why his or her Operator's license should not 
be revoked or restricted. The notice shall state the grounds relied 
upon for the proposed revocation or restriction. Violations may include 
failure to pay taxes when due and owing, or having been found by any 
forum of competent jurisdiction, including the Commission, to have 
violated the terms of a Tribal or state license or of any provision of 
this title.
    (3) If the Licensee fails to respond to the notice within the ten 
(10) days of service, the Chairman may issue an order, effective 
immediately, revoking the license or placing such restriction on the 
Licensee as the Chairman deems appropriate. The Licensee may, within 
the 10 day period, file with the Office of the Chairman a written 
response and request for hearing before the Commission.
    (4) At the hearing, the Licensee may present evidence and arguments 
regarding why his license should not be revoked.
    (5) The Commission after considering all of the evidence and 
arguments shall issue a written decision either upholding the license, 
revoking the license or imposing some lesser penalty (such as temporary 
suspension or a fine). Such decision shall be final and conclusive.
    (6) Within thirty days of the Commission's final decision, such 
decision may be appealed to the KTTT Court, by posting a bond with the 
Court, sufficient to cover the Commission's final assessment or ruling. 
Any finding of fact or omission are conclusive upon the Court unless 
clearly contrary to law. The purpose of Court review is not to 
substitute the Court's findings of facts or opinion for those of the 
Commission's but to guarantee due process of law. If the Court should 
rule for the appealing party, the Court may remand for a new hearing 
giving such guidance for the conduct of such as it deems necessary. No 
damages or monies may be awarded against the Commission, its members, 
nor the KTTT and its agents and employees in such action.

Section 115. Violation--Penalties

    Any person who violates these laws or elicits, encourages, directs 
or causes someone else to violate these laws shall be guilty of an 
offense and subject to a fine. Failure to have a current, valid or 
proper license shall not constitute a defense to an alleged violation 
of the licensing laws or regulations. The Kickapoo Tribal Court shall 
have jurisdiction over the proceeding.
    (1) Any person convicted of committing any violation of this 
Ordinance shall be subject to punishment of up to one year imprisonment 
and/or a fine not to exceed Five Thousand Dollars ($5,000.00).
    (2) Additionally, any person upon committing any violation of any 
provision of this Ordinance may be subject to a civil action for 
trespass and upon having been determined by the Court to have committed 
the violation, shall be assessed such damages as the Court deems 
appropriate under the circumstances.
    (3) Any person suspected of having violated any provision shall, in 
addition to any other penalty imposed hereunder, be required to 
surrender any beer or alcoholic beverages in such person's possession 
to the officer making the arrest or complaint. The surrendered 
beverages, if previously unopened, shall only be returned to said 
person upon a finding by the Court after a trial on the Kickapoo 
Traditional Tribe of Texas merits that the individual

[[Page 10551]]

committed no violation of the Tax Ordinance and of the Tribal Tax laws.
    (4) Any Operator who violates the provisions set forth herein shall 
forfeit all of the remaining stock on the licensed premises(s). The 
Commission shall be empowered to seize products.
    (5) Any stock, goods or other items subject to this Ordinance that 
have not been registered, licensed, or taxes paid shall be contraband 
and subject to immediate confiscation by the Commission or its 
employees or agents, provided, within 15 days of the seizure the 
Commission shall cause to be filed a forfeiture action against such 
property. The action shall allege the reason for the seizure or 
confiscation. Upon sufficient proof, the Court shall order the property 
forfeited and title vested in the KTTT.
    (6) Physical seizure of items shall be in accordance with the 
provisions contained in the KTTT law enforcement policies.

Section 116. Possession for Personal Use

    Possession of beer or alcoholic beverages for the personal use by 
persons over the age of 21 years shall, unless otherwise prohibited by 
Federal or Tribal law or regulation, be lawful within the Tribal Lands.

Section 117. Transportation Through Reservation not Affected

    Nothing herein shall pertain to the otherwise lawful transportation 
of beer or alcoholic beverages through the Tribal Lands by persons 
remaining upon public highways where such beverages are not delivered, 
or sold or offered for sale to anyone with the Tribal Lands.

Section 118. Severability

    If any provision of these laws is held invalid, the remainder of 
the laws and their application to other persons or circumstances is not 
affected.
    All prior statutes, ordinances, and resolutions enacted by the KTTT 
regulating, authorizing, prohibiting or in any way relating to the sale 
of beer or alcoholic beverages within the Tribal Lands are hereby 
repealed and have no further force or effect.

Section 120. Sovereign Immunity Preserved

    Nothing in this Ordinance shall be construed as a waiver or 
limitation of the sovereign Immunity of the KTTT or its agencies nor 
their officers or employees.

Section 121. Amendment

    Pursuant to Article VII--Powers of the Traditional Council of the 
Tribes Constitution, the Traditional Council shall have the authority 
to amend the provisions of the foregoing Beer and Liquor Tax Ordinance.

Section 122-130. Reserved for Amendment

    This Ordinance shall be effective upon certification by the United 
States Secretary of the Interior and its publication in the Federal 
Register.
    READ, PASSED APPROVED AND ENACTED at a duly called Tribal Council 
meeting on the 30th day of March 2011.

Kickapoo Traditional Tribe of Texas

TRIBAL COUNCIL

/S/ Juan Garza, Jr., Council Chairman.
/S/ Jesus Anico, Council Secretary.
/S/ Rogelio Elizondo, Council Treasurer.
/S/ David J. Gonzalez, Council Member.
/S/ Nanate Hernandez, Council Member.
[FR Doc. 2012-4052 Filed 2-21-12; 8:45 am]
BILLING CODE 4310-4J-P