[Federal Register Volume 88, Number 91 (Thursday, May 11, 2023)]
[Notices]
[Pages 30328-30337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10035]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[234A2100DD/AAKC001030/A0A501010.999900]
Cheyenne River Sioux Tribe Alcoholic Beverages Control Law
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
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SUMMARY: This notice publishes the Cheyenne River Sioux Tribe Alcoholic
Beverages Control Law (``Ordinance''). This Ordinance amends and
supersedes the existing Alcoholic Beverages Control Law, published in
the Federal Register on May 20, 1992.
DATES: Effective Date: This Ordinance shall become effective June 12,
2023.
FOR FURTHER INFORMATION CONTACT: Todd Gravelle, Supervisory Tribal
Operations Specialist, Great Plains Regional Office, Bureau of Indian
Affairs, 115 Fourth Avenue Southeast, Suite 400, Aberdeen, South Dakota
57401, Telephone: (605) 226-7376, Fax: (605) 226-7379.
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 control laws for the purpose of regulating liquor
transactions in Indian country. The Cheyenne River Sioux Tribe's first
Alcoholic Beverages Control Law was published in the Federal Register
on May 20, 1992, (57 FR 21554) and this amendment supersedes the
existing Ordinance, duly adopted by the Cheyenne River Sioux Tribe by
Resolution No. 43-2023-CR on March 10, 2023. By the delegated authority
contained in 3 IAM 4.4, the Great Plains Regional Director, Bureau of
Indian Affairs, approved the amendment on April 6, 2023.
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 Cheyenne River Sioux Tribe duly adopted
this Alcoholic Beverages Control Law by Resolution No. 43-2023-CR on
March 10, 2023.
Bryan Newland,
Assistant Secretary--Indian Affairs.
The Cheyenne River Sioux Tribe's Alcoholic Beverages Control Law
shall read as follows:
Ordinance No. 48
Alcoholic Beverages Control Law Cheyenne River Sioux Tribe of South
Dakota
As Amended
Section 1. Legislative Findings and Policy
Sec. 1-1-1. Alcohol Abuse is an Epidemic. The Tribal Council, being
vested with the power to protect the public health and to provide for
the peace and safety of residents of the Cheyenne River Sioux Indian
Reservation, hereby finds that alcohol abuse is an epidemic within the
territory of the Cheyenne River Sioux Tribe, and further finds that:
(A) Alcohol abuse leads to frequent early loss of life and
morbidity among tribal members and other residents of the Reservation.
For example, the age adjusted accident death rates due to homicide,
suicide, motor vehicle accidents and diseases related to alcohol abuse
are several times higher among tribal members than the general
population of the United States, and 90 to 95% of serious trauma cases
treated by the Indian Health Service on the Reservation are alcohol
related.
(B) Alcohol abuse results in dysfunctional families on the
Reservation, and the vast majority of child abuse, spousal abuse and
elderly abuse that occurs on the Reservation are alcohol related.
(C) Fetal Alcohol Syndrome and Fetal Alcohol Effect occur at
alarming rates among children born within the territory of the Tribe,
and children born with parental alcohol damage have difficulty caring
for themselves all of their lives. The Tribe has a compelling interest
in protecting children from Fetal Alcohol Syndrome and Fetal Alcohol
Effect.
(D) Unemployment ranges from 60 to 65% among tribal members on the
Reservation and poverty is widespread. Many tribal members suffer
economic deprivation due to alcohol abuse, ranging from unemployment to
starvation.
(E) Alcohol abuse contributes to the vast majority of the crime
which takes place within tribal territory and places heavy burdens on
the tribal criminal justice system and the tribal courts.
(F) Alcohol abuse has a devastating impact on our families and the
Reservation Community, and the Tribal Council has a duty to combat
alcohol abuse.
(G) Both the Tribe and the Federal Government devote tremendous
resources to prevent and treat problems of alcohol abuse on the
Reservation, yet even the combined treatment programs sponsored by the
Tribe and Federal Government are not sufficient to address the problems
of alcohol abuse. Far more must be done.
(H) The Tribe must exercise its regulatory authority to combat the
problems of alcohol abuse on the Reservation through a comprehensive,
consistent, and clearly defined plan to minimize alcohol consumption on
the Reservation and to discourage unsafe drinking practices. In
addition, the Tribe must raise additional revenue to combat the
problems of alcohol abuse.
(I) Teenagers, young adults, and others are susceptible to new and
increasingly dangerous high-alcohol-content beverages, some of which
contain additives such as caffeine or sugar and increase the health
concerns related to addiction and alcohol abuse.
Sec. 1-1-2. Declaration of War on Alcohol Abuse. For the spiritual
well-being of our children and families and for the survival and
strengthening of our people, the Cheyenne River Sioux Tribe declares
War on Alcohol Abuse and strives for the speedy elimination of alcohol
abuse and its associated problems from the Cheyenne River Indian
Reservation. In furtherance of the Tribe's War on Alcohol Abuse, the
Tribal Council hereby declares that it is the policy of the Cheyenne
River Sioux Tribe:
[[Page 30329]]
(A) to minimize alcohol consumption among residents of the
Reservation;
(B) to discourage unsafe drinking practices, including, but not
limited to, driving while intoxicated, alcoholism or chronic
intoxication, violence related to alcohol abuse, public intoxication
and drinking during pregnancy;
(C) to minimize the adverse health effects of drinking alcohol
through prevention, regulation and treatment;
(D) to protect unborn children, who are people in their own right,
from prenatal alcohol damage;
(E) to control the supply of alcoholic beverages through taxation
and regulation, and to control conditions of availability of alcoholic
beverages through education and regulation;
(F) to maximize education, prevention and treatment programs to
fight alcohol abuse; and
(G) to cause those who sell or consume alcoholic beverages to bear
a greater proportion of the costs associated with alcohol abuse through
taxation of alcoholic beverages and alcoholic beverage dealers and
dedicating revenue derived therefrom for alcohol abuse education,
enforcement, prevention, regulation and treatment.
Section 2. General Provisions and Definitions
Sec. 2-1-1. Delegated Authority. In accordance with Article IV,
Section 3 of the Constitution (Future Powers), the Tribal Council of
the Cheyenne River Sioux Tribe hereby exercises the authority delegated
to the Tribe by the Congress of the United States of America to
regulate the manufacture, distribution, sale, possession and
consumption of alcoholic beverages within the territory of the Tribe.
Sec. 2-1-2. Statement of Purpose. The purpose of this Alcoholic
Beverages Control Law is to regulate the manufacture, distribution,
sale, possession and consumption of liquor on the Cheyenne River Indian
Reservation. It is the Cheyenne River Sioux Tribe's intent in enacting
this Ordinance to prohibit all traffic in liquor on the Cheyenne River
Indian Reservation except to the extent allowed and permitted under the
express terms of this Ordinance. Any person desiring to engage in the
possession, sale, trade, transport or manufacture of alcoholic
beverages on the Cheyenne River Sioux Indian Reservation shall comply
with the rules and regulations set forth in this Alcoholic Beverages
Control Law. This Ordinance shall be cited as the ``Cheyenne River
Sioux Alcoholic Beverages Control Law'' and is promulgated pursuant to
the constitutional, delegated and inherent authority of the Tribe for
the purpose of protecting the welfare, health, peace, morals and safety
of all people residing on the Cheyenne River Indian Reservation. All
the provisions of this Ordinance shall be liberally construed to
accomplish the above-declared purpose.
Sec. 2-1-3. Applicability. This Ordinance shall apply to all
persons engaged in the activities described herein on any and all lands
and areas within the exterior boundaries of the Cheyenne River Indian
Reservation, including lands held in fee, and all other lands subject
to the jurisdiction of the Cheyenne River Sioux Tribe.
Sec. 2-1-4. Definitions. The terms used in this Alcoholic Beverages
Control Law, unless the context plainly otherwise requires, shall mean:
(A) ``Alcoholic beverages,'' any distilled spirits, wine and malt
beverages as defined in this Ordinance.
(B) ``Alcoholic Beverages Dealer,'' any person who sells or engages
in commercial traffic in alcoholic beverages, including manufacturers,
retailers, solicitors, transporters and wholesalers.
(C) ``Cheyenne River Indian Reservation'' shall include any and all
lands within the territory of the Cheyenne River Indian Reservation as
set forth in Article I of the Constitution of the Cheyenne River Sioux
Tribe, whether said lands are trust, allotted or lands held in fee
patent status.
(D) ``Commission,'' the Alcoholic Beverage Control Commission.
(E) ``Contraband,'' any alcoholic beverage introduced into, or
possessed, offered for sale or used within, the territory of the Tribe
contrary to tribal law and any receptacle or container in which such
alcoholic beverages are found.
(F) ``Director,'' the director of the Revenue Department.
(G) ``Distilled spirits,'' ethyl alcohol, hydrated oxide of ethyl,
spirits of wine, whiskey, rum, brandy, gin, and other distilled
spirits, including all delusions and mixtures thereof, for
nonindustrial use containing not less than one-half of one percent of
alcohol by volume.
(H) ``Distiller,'' means any person who owns, or who himself or
through others, directly or indirectly, operates or aids in operating
any distillery or other establishment for the production, rectifying,
blending, or bottling of intoxicating liquor other than beer.
(I) ``Intoxicating beverage,'' any alcoholic beverage.
(J) ``Intoxicating liquor,'' any alcoholic beverage.
(K) ``Liquor,'' any alcoholic beverage.
(L) ``Malt beverage,'' a beverage made by the alcoholic
fermentation of an infusion or decoction, or combination of both, in
potable brewing water, of malted barley with hops, or their parts, or
their products, and with or without other malted cereals, and with or
without the addition of unmalted or prepared cereals, other
carbohydrates or products prepared therefrom, and with or without the
addition of carbon dioxide, and with or without other wholesome
products suitable for human consumption containing not less than one-
half of one percent of alcohol by volume, and commonly referred to as
beer or ale.
(M) ``Manufacturer,'' any person who owns, or who himself or
through others, directly or indirectly, operates or aids in operating
any facility which produces alcohol beverages.
(N) ``Off Sale,'' the sale of any alcoholic beverage for
consumption off the premises where sold.
(O) ``On Sale,'' the sale of any alcoholic beverage for consumption
only upon the premises where sold.
(P) ``On-Sale dealer,'' any person who sells, or keeps for sale,
any alcoholic beverage for consumption on the premises where sold.
(Q) ``Package,'' means the bottle or immediate container of any
alcoholic beverage.
(R) ``Package dealer,'' any person other than a distiller,
manufacturer, or wholesaler, who sells, or keeps for sale, any
alcoholic beverage for consumption off the premises where sold.
(S) ``Person,'' any individual, firm, partnership, joint venture,
association, corporation, municipal corporation, estate, trust,
business receiver, or any group or combination acting as a unit and the
plural as well as the singular in number.
(T) ``Retailer,'' or ``retail dealer'' any person who sells
alcoholic beverages for other than resale.
(U) ``Retail license,'' an on- or off-sale license issued under the
provisions of this Ordinance.
(V) ``Revenue Department,'' the Cheyenne River Sioux Tribal Revenue
Department.
(W) ``Sale,'' the transfer, for a consideration, of title to any
alcoholic beverage.
(X) ``Solicitor,'' any person employed by a licensed wholesaler
within or without the territorial limits of the Cheyenne River Indian
Reservation, or by any distiller or manufacturer within or without the
reservation, who solicits orders of intoxicating liquor from wholesale
or retail dealers within the Reservation.
[[Page 30330]]
(Y) ``Superior Court,'' Cheyenne River Sioux Tribal Court.
(X) ``Transportation company,'' or ``transporter,'' any common
carrier or operator of a private vehicle transporting or accepting for
transportation any alcoholic beverage destined to be delivered to the
Cheyenne River Indian Reservation, but not including transportation by
carriers in interstate commerce where the shipment originates outside
of the state and is destined to a point outside of the state.
(Y) ``Treasurer,'' the duly elected and acting Treasurer of the
Cheyenne River Sioux Tribe.
(Z) ``Tribal Chairman,'' the Chairman of the Cheyenne River Sioux
Tribe.
(AA) ``Tribal Council,'' the governing body of the Cheyenne River
Sioux Tribe.
(BB) ``Wholesaler,'' any person who sells alcoholic beverages to
retailers for resale.
(CC) ``Wine,'' any liquid either commonly used, or reasonably
adapted to use, for beverage purposes and obtained by the fermentation
of the natural sugar content of fruits or other agricultural products
containing sugar and containing no less than one-half of one percent of
alcohol by volume but not more than twenty-four percent of alcohol by
volume.
Section 3. Licensing Policies and Procedures
Sec. 3-1-1. Granting of License. Any person intending to introduce,
sell trade, transport or manufacture alcoholic beverages on the
Cheyenne River Indian Reservation shall make application for a license
and present the completed application to the Revenue Department. The
liquor license fees shall be in annual payments, due prior to the 1st
day of January of each calendar year, for the following prescribed
fees:
Sec. 3-1-2. Wholesale Licensing. The fee for an annual wholesale
license shall be set by Tribal Council resolution at not less than Two
Hundred Dollars ($200.00) and no more than Three Thousand Dollars
($3,000.00).
Sec. 3-1-3(A). Retail Licensing. The fee for an annual retail
license shall be set by Tribal Council resolution at not less than One
Hundred Dollars ($100.00) and no more than Twenty-Five Hundred Dollars
($2,500.00).
Sec. 3-1-3(B). Temporary Retail Licensing. A temporary alcoholic
beverage license may be issued in conjunction with a special event, to
be determined by the Commission, to a civic, charitable, educational,
fraternal, or veteran's organization or to the holder of an annual
license. Any temporary license issued under this section is limited to
the conditions specified in the license, including a designation of the
premises at which the licensee may introduce, sell or offer to keep for
sale or transport for sale alcoholic beverages, and said temporary
license may not exceed an effective period of four days. The fee for a
temporary license shall be set by the Alcoholic Beverage Control
Commission, and shall be no less than One Hundred Dollars ($100) and no
more than Seven Hundred Fifty Dollars ($750). The fee must be submitted
with the application before the application will be considered by the
Commission.
Sec. 3-1-4. Transport Licensing. The fee for an annual transport
license shall be set by Tribal Council resolution at not less than Two
Hundred Dollars ($200.00) and no more than One Thousand, Five Hundred
Dollars ($1,500.00).
Sec. 3-1-5. Operating of a plant distilling intoxicating liquor.
The fee for an annual distilling plant license shall be set by Tribal
Council resolution not less than One Thousand Dollars ($1,000.00) and
no more than Five Thousand Dollars ($5,000.00).
Sec. 3-1-6. Solicitors. The fee for an annual solicitors license
shall be set by Tribal Council resolution at not less than Two Hundred
Dollars ($200.00) and no more than Seven Hundred Fifty Dollars
($750.00).
Sec. 3-1-7. Alcoholic Beverage Control Commission. There is hereby
created a Cheyenne River Sioux Alcoholic Beverage Control Commission.
(A) The Alcoholic Beverage Control Commission shall consist of six
(6) members of the Tribal Council, including one member from each
tribal voting district, to be selected by the Tribal Chairman, and one
(1) physician or other expert professionally trained in the area of
alcohol abuse prevention and treatment, to be selected by the Tribal
Chairman.
(B) The Commissioners shall, by majority vote, elect one
Commissioner to serve as Chairman of the Commission. The Chairman shall
preside at Commission meetings and hearings but shall not exercise his
power to vote, except in the case of a tie. The Commissioners shall, by
majority vote, elect one Commissioner to serve as Vice-Chairman of the
Commission. The Vice-Chairman shall preside at Commission meetings and
hearings in the absence of the Chairman and, when so presiding, shall
not exercise his power to vote, except in the case of a tie.
(C) A quorum of the Commission shall consist of three members, and
a quorum is required to exercise Commission authority.
(D) No Commission member shall participate in any Commission
decision in which he has a direct interest or in which any member of
his immediate family has a direct interest.
Sec. 3-1-8. Powers of the Alcoholic Beverage Control Commission.
Commissioners shall be appointed for terms of two years, and shall be
removed by the Tribal Council only for cause, after notice and an
opportunity for a hearing before the Tribal Council. When a vacancy
occurs on the Commission, the Tribal Council shall appoint a new
Commissioner for the balance of the term.
(A) The Alcoholic Beverage Control Commission shall exercise
regulatory and administrative authority of the Tribe under this
Ordinance and shall have the power to:
(1) Review license applications and grant licenses;
(2) Conduct hearings on alleged violations of this Ordinance in the
manner set forth in Section 6. The Commission may issue subpoenas and
compel any licensee, or his agent or servant, to appear before it and
to provide any information or documents it requires;
(3) Establish rules and regulations governing the conduct of the
Commission and the exercise of Commission authority and establish rules
and regulations to implement this Ordinance, in the manner set forth in
Section 3-1-12 of this Ordinance;
(4) Collect taxes, impose penalties, suspend and/or revoke licenses
when violations of this Ordinance are proved by a preponderance of the
evidence;
(5) Enjoin violations of this Ordinance and enforce the orders of
the Commission;
(6) Distribute funds collected from any taxes, fees and fines
imposed under this Ordinance. The Commission shall distribute such
funds to further the purposes of alcohol abuse education, enforcement,
prevention, regulation and treatment; and
(7) Require payment of reasonable, non-discriminatory fees to cover
administrative costs associated with licensing a liquor establishment
in addition to the fees set forth in this Ordinance, provided such
additional fees are established by rule or regulation in the manner set
forth in Section 3-1-12 of this Ordinance.
(8) Exercise any other power of the Alcoholic Beverage Control
Commission set forth elsewhere in this Ordinance.
(B) (1) Taxes may be collected by the Commission through assessment
and distraint or other necessary means;
[[Page 30331]]
(2) Penalties may be collected through the attachment, levy and
sale of property or other necessary means; and
(3) Orders suspending or revoking licenses or enjoining the
operations of liquor dealers may be enforced by the Tribal Police
acting at the direction of the Commission.
Sec. 3-1-9. Qualifications for License. No license of any kind
shall be issued under this Ordinance, including a wholesale license,
retail license, temporary retail license, transport license, distilling
plant license, and solicitors license, unless the applicant shall be
twenty-one (21) years of age, has filed a sworn application,
accompanied by the required fee, showing the following qualifications
and subject to the following standard:
(A) An applicant, other than a corporation, must be a legal
resident of the United States and a person of good moral character. If
the applicant is a corporation, partnership, joint venture,
association, municipal corporation, estate, trust, business receiver or
firm, the manager of the licensed premises must be a resident of the
United States and a person of good moral character. Officers and
directors of corporations, and partners, and directors of corporations,
and partners, joint venturers, principals of associations and municipal
corporations, trustees, business receivers and members of firms must be
legal residents of the United States and persons of good moral
character. Applicants must also have a business license with the
Cheyenne River Sioux Tribe to be entitled to do business on the
Cheyenne River Indian Reservation.
(B) The Alcoholic Beverage Control Commission may require the
applicant to set forth such other information as is necessary to enable
it to determine if a license should be granted.
(C) The Alcoholic Beverage Control Commission shall issue a license
only if the qualifications set forth herein are satisfied and if it
concludes, within its discretion, that the best interests of the
Reservation community shall be served. In considering applications by
retail dealers, the Alcoholic Beverage Control Commission may take into
account the following factors, among others, in determining whether the
issuance of a license will serve the best interests of the Reservation
community:
(1) whether the license applied for is for the operation of a new
or an existing retail liquor establishment.
(2) whether the applicant is in compliance with applicable tribal,
State and Federal law;
(3) whether the applicant has violated any provision of this
Ordinance, and if so, whether the violation has been remedied;
(4) the location, number and density of retail liquor
establishments in the community;
(5) whether food is sold at the establishment; and
(6) the health and welfare of the public.
Sec. 3-1-10. Public Comments. Before the issuance of any tribal
liquor license, the Cheyenne River Sioux Tribe shall allow comments
from the public. The Alcoholic Beverage Control Commission shall be the
determining authority for the granting of any tribal liquor license.
Sec. 3-1-11. Appeal. Any applicant who is denied a license by the
Alcoholic Beverage Control Commission may appeal the Commission's
decision to deny the license to the Superior Court by filing a notice
of appeal with the Court, clearly stating the grounds therefore, and
serving a copy of the notice of appeal by hand on the Director of the
Revenue Department within thirty (30) days from the date of the
decision. The Superior Court shall uphold the decision of the Alcoholic
Beverage Control Commission unless it finds that the Commission's
decision was arbitrary and capricious, an abuse of discretion, or not
in accordance with this Ordinance or other applicable tribal or Federal
law.
Sec. 3-1-12. Regulatory Authority of the Alcoholic Beverage Control
Commission.
(A) Proposal of Regulations. The Commission may, on its own
initiative, propose rules and regulations that are consistent with this
Ordinance and that implement the provisions of this Ordinance, except
in the case of rules and regulations that implement Section 4-1-10 of
this Ordinance, which rules and regulations may be proposed only in the
manner set forth in Section 4-1-10.
(B) Notice and Publication of Proposed Regulations.
(1) The Commission shall publish notice of Proposed Regulations in
order to provide interested parties an opportunity to comment.
(2) Notice of the Proposed Regulations shall be made by publication
in one or more newspapers of general circulation on the Reservation,
provided that such newspaper or newspapers have a general circulation
in Dewey County and Ziebach County.
(3) The notice shall invite written comments on the Proposed
Regulations and give a deadline for their submission not less than
sixty (60) days after publication of the notice.
(4) A copy of the Proposed Regulations shall be filed with and made
available for public inspection at the Office of the Tribal Secretary.
(C) Public Comment and Hearings.
(1) The Commission shall consider all written comments on the
Proposed Regulations that are submitted within sixty (60) days after
publication of the notice referred to in subpart (B) of this section.
(2) The Commission may, in its sole discretion, hold one or more
public hearings on the Proposed Regulations. The Commission shall have
the authority to conduct and preside over such hearings and, if
necessary in its discretion, establish procedures for the conduct of
such hearings.
(D) Action on Proposed Regulations. After expiration of the public
comment period and after one or more public hearings, if any are held
in the sole discretion of the Commission pursuant to subpart (C)(2) of
this section, the Commission may:
(1) Amend the Proposed Regulations by adding, changing, or deleting
text therefrom in accordance with the procedures set forth in subpart
(E) of this section, except in the case of Proposed Regulations to
implement Section 4-1-10, which may not be amended by the Commission;
or
(2) Adopt the Proposed Regulations, without amendment, as Final
Regulations and publish them in accordance with subpart (F) of this
section; or
(3) Reject the Proposed Regulations.
(E) Interim Regulations.
(1) Proposed Regulations that are amended pursuant to subpart
(D)(1) of this section shall be known as ``Interim Regulations.''
(2) The Commission shall publish notice of Interim Regulations in
the same manner for the publication of notices of Proposed Regulations,
as set forth in subpart (B) of this section, provided that the notice
of Interim Regulations may set forth a shortened written comment period
of not less than thirty (30) days after publication of the notice.
(3) A copy of the Interim Regulations shall be filed with and made
available for public inspection at the Office of the Tribal Secretary.
(4) The Commission shall consider all written comments on the
Interim Regulations that are submitted within thirty (30) days after
publication of the notice referred to in subpart (E)(2) of this
section.
(5) The Commission may, in its sole discretion, hold one or more
public hearings on the Interim Regulations. The Commission shall have
the authority to conduct and preside over such hearings and, if
necessary in its
[[Page 30332]]
discretion, establish procedures for the conduct of such hearings.
(6) After expiration of the public comment period and after one or
more public hearings, if any are held in the sole discretion of the
Commission pursuant to the preceding subpart, the Commission may:
(a) Further amend the Interim Regulations by adding, changing, or
deleting text therefrom and, in respect to the further amended Interim
Regulations, follow the same procedures set forth in this subpart for
notice, publication, public comment, public hearings, if any,
consideration, and adoption of Interim Regulations;
(b) Adopt the Interim Regulations, without amendment, as Final
Regulations and publish them in accordance with subpart (F) of this
section; or
(c) Reject the Interim Regulations.
(F) Publication of Final Regulations.
(1) Following adoption of Final Regulations by the Commission, the
Commission shall publish the Final Regulations in one or more
newspapers of general circulation in Dewey and Ziebach Counties on the
Reservation.
(2) The Final Regulations shall become effective thirty (30) days
after publication or on such later date as may be specified in the
Final Regulations.
(3) A copy of the Final Regulations shall be filed with and made
available for public inspection at the Office of the Tribal Secretary.
Section 4. Prohibitions
Sec. 4-1-1. General Prohibitions. It shall be unlawful to
introduce, manufacture for sale, sell or offer to keep for sale or
transport for sale alcoholic beverages, on the Cheyenne River Indian
Reservation except upon the terms, conditions, limitations, and
restrictions specified in this Ordinance. No sale of liquor shall be
made within the Reservation except by persons holding a liquor license
issued by the Commission and except at licensed premises. In addition
to any other civil penalty provided for in this Ordinance, each
violation of this section may subject the violator to a civil fine not
to exceed Five Thousand Dollars ($5,000).
Sec. 4-1-2. Disposal Prohibited on Certain Days. No licensee of any
class shall sell intoxicating liquor on Sunday, Memorial Day and
Christmas Day. No licensee of any class shall sell intoxicating liquor
on Tribal election day while the polls are open. In addition to any
other civil penalty provided for in this Ordinance, any licensee who
violates this section may be subject to a civil fine not to exceed Five
Hundred Dollars ($500) for each violation. The Alcoholic Beverage
Control Commission may, in its discretion, waive the prohibition on
Sunday sales and it may waive the prohibition on the sale of
intoxicating liquor for any other specified day set forth herein. The
Commission shall provide reasonable notice to the public and retailers
of any such waiver.
Sec. 4-1-3. Disposal Prohibited During Certain Hours. No licensee
shall sell, provide, or allow the consumption of, alcoholic beverages
to any person on the licensed premises before eleven o'clock a.m. or
after one o'clock a.m., Mondays through Thursdays; and no licensee
shall sell, provide, or allow the consumption of, alcoholic beverages
to any person on the licensed premises before eleven o'clock a.m. or
after two o'clock a.m., Fridays through Saturdays. No off-sale dealer
shall sell or provide alcoholic beverages to any person before eleven
o'clock a.m. or after eleven o'clock p.m., Mondays through Thursdays,
and no off-sale dealer shall sell or provide alcoholic beverages to any
person before eleven o'clock a.m. or after twelve o'clock a.m.
(midnight), Fridays through Saturdays. In addition to any other civil
penalty provided for in this Ordinance, any licensee who violates this
section may be subject to a civil fine not to exceed Five Hundred
Dollars ($500) for each violation. The Alcoholic Beverage Control
Commission may, in its discretion, adjust the hours during which the
sale of alcoholic beverages is prohibited. The Commission shall provide
reasonable notice to the public and retailers of any such adjustment.
Sec. 4-1-4. Prohibition as to Persons Under Twenty-One Years of
Age. No licensee of any class shall provide directly or by a clerk,
agent or servant, intoxicating beverages to any person under the age of
twenty-one (21) years. In addition to any civil penalty provided for in
this Ordinance, any licensee who violates this section may be subject
to a civil fine not to exceed Five Hundred Dollars ($500) for each
violation.
(A) In addition, any person who is injured as a result of a
violation of this section shall have a right of action against the
person who contributed to his injury by providing alcoholic beverages
to a minor person. The Superior Court shall have jurisdiction to hear
such actions.
(B) An action under Subsection (A) of this section shall be
commenced within 2 years after the damage, injury or death.
(C) Evidence of Age and Identity. Evidence of age and identity of a
purchaser of liquor must be shown by a current and valid driver's
license, tribal identification, or a United States passport, which
contains the signature, birth date, and picture of the holder of the
license or passport, or any other form of identification acceptable to
the Commission
(D) Demand for Identification. Liquor establishments shall have the
authority to demand of any person the production of proper evidence of
age and identity before making a sale of liquor to such person.
(E) Right and Duty to Refuse Sale. A liquor establishment shall
have the authority and duty to refuse to sell liquor to any person who
is unable to produce proper evidence of age and identity as prescribed
by this section.
(F) Persons under twenty-one (21) years of age are prohibited from
the premises of on-sale licensees, except as set forth in subsection G
of this section.
(G) Notwithstanding Sections 4-1-4(F) and 9-1-5, persons under
twenty-one (21) years of age may be present on the premises of on-sale
licensees:
(1) Whose sale of alcoholic beverages constitutes less than fifty
percent (50%) of the gross business transaction by the licensee at the
premises, as determined and certified by the Commission; or
(2) Whose sale of alcoholic beverages constitutes more than fifty
percent (50%) of the gross business transacted by licensee at the
premises, but who have erected a physical barrier or barriers,
inspected and approved by the Commission, to allow for multiple uses of
multiple areas of the premises by persons of all ages, provided that
persons under the age of twenty-one (21) are not permitted access to
any area in which the sale of alcoholic beverages constitutes more than
fifty percent (50%) of the gross revenues transaction by the licensee
in the area, as determined and certified by the Commission. For the
purposes of this subsection, a physical barrier includes, but is not
limited to, a wall, fence, rope, railing, or other physical feature
erected for the sole purpose of restricting the free flow of foot
traffic and access to a certain area of the premises.
Sec. 4-1-5. Prohibition as to Provision to Intoxicated Persons.
(A) No licensee of any class shall provide directly or by a clerk,
agent or servant, alcoholic beverages to a visibly intoxicated person.
In addition to any other civil penalty provided for in this Ordinance,
any licensee who violates this section may be subject to a civil fine
not to exceed Five Hundred Dollars ($500) for each violation.
(B) In addition, any person who is injured as a result of a
violation of this section shall have a right of action
[[Page 30333]]
against the person who contributed to his injury by providing alcoholic
beverages to a visibly intoxicated person. The Superior Court shall
have jurisdiction to hear such actions.
(C) An action under Subsection (B) of this section shall be
commenced within 2 years after the damage, injury or death.
Sec. 4-1-6. Prohibition as to Purchase or Use by Pregnant Persons.
No licensee of any class shall knowingly provide directly or by a
clerk, agent or servant alcoholic beverages to any person who is
pregnant. In addition to any other civil penalty provided for in this
Ordinance, any licensee who violates this section may be subject to a
civil fine not to exceed Five Hundred Dollars ($500) for each
violation.
Sec. 4-1-7. Prohibition as to Purchase or Use by Pregnant Persons.
No person shall purchase, obtain or use alcoholic beverages while
pregnant. Any person who violates this section may be subject to a
civil fine not to exceed Five Hundred Dollars ($500). When there is
serious danger of prenatal alcohol damage to the unborn child, the
violator may be civilly committed to an alcohol abuse treatment
facility for a period of time not to exceed the duration of the
pregnancy by order of the Superior Court. The Superior Court shall, in
determining such cases, follow the procedural rules provided by tribal
law for involuntary civil commitments.
Sec. 4-1-8. Prohibition Against Cashing Subsistence Checks. No
licensee of any class shall, directly or by a clerk, agent or servant,
knowingly cash or accept any General Assistance check issued by the
Federal Government, any Aid to Families with Dependent Children check
issued by the State government or any other Government subsistence
check. In addition to any other civil penalty provided for in this
Ordinance, any licensee who violates this section may be subject to a
civil fine not to exceed Five Hundred Dollars ($500) for each
violation.
Sec. 4-1-9. Prohibition Against Drive-up Windows. No licensee shall
sell or provide alcoholic beverages from a drive through window or
entrance. In addition to any other civil penalty provided for in this
Ordinance, any licensee who violates this section may be subject to a
civil fine not to exceed Five Hundred Dollars ($500) for each
violation.
Sec. 4-1-10. Prohibition Against Specific Alcoholic Beverages.
(A) This Ordinance authorizes the prohibition against the
introduction, manufacture for sale, sale or offer to keep for sale, or
transport for sale of specific types of alcoholic beverages, which are
deemed to have a harmful impact on the health and welfare of the Tribe
and its members, provided that such prohibitions are adopted in the
following manner:
(1) Tribal Council may by Tribal Council Resolution make a
recommendation to the Commission that it consider a rule or regulation
prohibiting the introduction, manufacture for sale, sale or offer to
keep for sale, or transport for sale of a particular alcoholic
beverage.
(2) The Commission shall consider whether to adopt such
recommendation by following the procedures set forth in Section 3-1-12.
(B) The Commission will maintain a list of alcoholic beverages
prohibited by regulation that will be distributed annually, free of
charge, to all licensees. The list will be updated and distributed,
free of charge, to all licensees within twenty (20) days of adoption of
a regulation containing any new prohibition.
(C) In addition to any other civil penalty provided for in this
Ordinance, any licensee who violates a prohibition duly adopted and
published by the Commission under this section and Section 3-1-12 may
be subject to a civil fine not to exceed Five Hundred Dollars ($500)
for each violation.
Section 5. Taxation
Sec. 5-1-1. Wholesale Alcoholic Beverage Excise Tax. There is
hereby imposed a wholesale alcoholic beverage excise tax of 7.5% on the
whole price of all alcoholic beverages introduced into the Cheyenne
River Indian Reservation for sale or provision to a retail alcoholic
beverage dealer.
Sec. 5-1-2. Delivery of Beverages for Resale Prohibited Except to
Licensees. No manufacturer, wholesaler, or transporter shall sell or
deliver any package containing alcoholic beverages manufactured or
distributed by him for resale, unless the person to whom such package
is sold or delivered is a licensed alcoholic beverage dealer. In
addition to any other civil penalty provided for in this Ordinance, any
person who violates this section may be subject to a civil fine not to
exceed Two Hundred and Fifty ($250) for each violation.
Sec. 5-1-3. Retail Alcoholic Beverages dealers to Purchase only
from Licensed Wholesalers, Etc. Retail alcoholic beverage dealers shall
buy or receive alcoholic beverages only from wholesalers, solicitors or
transporters licensed under this Ordinance. In addition to any other
civil penalty provided for in this Ordinance, any person who violates
this section may be subject to a civil fine not to exceed Five Hundred
Dollars ($500) for each violation.
Sec. 5-1-4. Monthly Return and Payment of Wholesale Alcoholic
Beverage Excise Tax. Wholesalers and other alcoholic beverage dealers
who introduce, or otherwise cause to be introduced, alcoholic beverages
into the Cheyenne River Indian Reservation for provision to retail
alcoholic beverage dealers shall be liable for payment of the wholesale
alcoholic beverage excise tax and shall file monthly returns with the
Revenue Department, on such forms as the Revenue Department may
require, showing the kind, quantity and price of the alcoholic
beverages introduced, or otherwise caused to be introduced, into the
Cheyenne River Indian Reservation, along with the names of the persons
to whom the alcoholic beverages were provided, the amount of the tax
due and other information which the Revenue Department may reasonably
require. Said return, covering the period of one calendar month, shall
be transmitted to the Revenue Department on or before the twenty-fifth
day of the month following the close of the reporting period. The tax
due for that period shall be remitted together with the monthly return.
Sec. 5-1-5. Records and Reports Required of Licensees--Entry and
Examination of Default. Any person liable for the payment of the
wholesale alcoholic beverage excise tax shall keep, in current and
available form on the licensed premises, records of all purchases,
sales, quantities on hand and such other information as the Director of
the Revenue Department may reasonably require. The Director may require
from any licensee any reports he or she shall prescribe, and he or she
may require the production of any book, record, document, invoice, and
voucher kept, maintained, received, or issued by any such licensee in
connection with his business, which in the judgment of the Director may
be necessary to administer and discharge his duties, to secure the
maximum of revenue to be paid, and to carry out the provisions of the
law. If default is made, or if any such licensee fails or refuses to
furnish any other reports or information referred to upon request
therefore, the Director may enter the premises of such licensee where
the records are kept and make such examination as is necessary to
compile the required report. The cost of such examination shall be paid
by the licensee whose reports are in default.
Sec. 5-1-6. Reports Required on Shipments of Beverages into
Reservation. Any person outside the Reservation who sells or ships
alcoholic
[[Page 30334]]
beverages to a manufacturer, wholesaler, solicitor, transporter or
retailer within this Reservation shall forthwith forward to the
Director such a report as the Director shall require, giving the name
and address of the licensee or person making the purchase, the quantity
and kind of alcoholic beverages sold, the manner of delivery and such
other information as the Director requires.
Sec. 5-1-7. Tax Stamps. The wholesale alcoholic beverage excise tax
shall be required to be evidenced by an identification stamp to be
affixed to original packages of alcoholic beverages introduced into the
Cheyenne River Indian Reservation. The Revenue Department shall adopt
the design of the identification stamp, procure manufacture of the
stamp, and shall issue rules regarding the issuance and use of the
stamp.
Sec. 5-1-8. Counterfeiting of Stamps. Every person who shall make,
manufacture, counterfeit, duplicate or in any way imitate, any
identification stamp, provided for in Section 5-1-4 above, or who shall
possess or in any way use such counterfeit or imitated stamp, may be
assessed a fine not to exceed Five Thousand Dollars ($5,000) for each
violation.
Sec. 5-1-9. Penalty and Interest on Delinquency in Payment of Tax--
False Return--Collection of Tax and Penalties. If any person liable for
the wholesale alcoholic beverage excise tax fails to pay the tax on the
date payment is due, there shall be added to the tax ten percent of the
amount of the tax unpaid. The amount of the tax and penalty shall bear
interest at 1.5% per month from the date of delinquency until paid. If
any licensee files a false or fraudulent return, there shall be added
to the tax an amount equal to the tax evaded, or attempted to be
evaded. All such taxes and civil penalties may be collected by
assessment and distraint.
Sec. 5-1-10. Possession of Unstamped Beverages Prohibited. No
person may possess any alcoholic beverage other than in a package upon
which the required tax stamps are affixed. In addition to forfeiture
and any civil penalty provided for elsewhere in this Ordinance, each
violation of this section shall subject the violator to a civil fine
not to exceed Five Hundred Dollars ($500).
Sec. 5-1-11. Luxury Tax on Retail Purchase of Alcoholic Beverages.
There is hereby imposed a luxury tax of 12% on the retail sale price of
alcoholic beverages purchased on sale from on-sale liquor dealers
within the Cheyenne River Indian Reservation. There is hereby imposed a
luxury tax of 15% on the retail sale price of alcoholic beverages
purchased off sale from off sale package dealers within the Cheyenne
River Indian Reservation. This tax shall be levied and collected in
addition to any tribal sales tax.
Sec. 5-1-12. Monthly Return, Collection and Remittance of Luxury
Tax on Retail Purchase of Alcoholic Beverages. Retail alcoholic
beverage dealers shall be liable for the collection and remittance of
the luxury tax on the retail sale price of alcoholic beverages. Retail
alcoholic beverage dealers shall keep accurate records of all sales of
alcoholic beverages and shall file monthly returns with the Revenue
Department, on such forms as the Revenue Department may require,
showing the quantity and the price of alcoholic beverages sold at
retail, along with the amount of the tax due and other information
which the Revenue Department may reasonably require. Said return,
covering the period of one calendar month, shall be transmitted to the
Revenue Department on or before the twenty-fifth day of the month
following the close of the reporting period. The tax due for that
period shall be remitted together with the monthly return.
Sec. 5-1-13. Reports Required of Retail Alcoholic Beverage Dealers.
Retail Alcoholic beverage dealers shall keep, in current and available
form on the licensed premises, records of all purchases, sales,
quantities on hand and such other information as the Director of the
Revenue Department may reasonably require. The Director may require
from any licensee any reports he shall prescribe, and he may require
the production of any book, record, document, invoice, and voucher
kept, maintained, received, or issued by any such licensee in
connection with his business, which in the judgment of the Director may
be necessary to administer and discharge his duties, to secure the
maximum of revenue to be paid, and to carry out the provisions of law.
If default is made, or if any such licensee fails or refuses to furnish
any other reports or information referred to upon request therefore,
the Director may enter the premises of such licensee where the records
are kept and make such examination as is necessary to compile the
required report. The cost of such examination shall be paid by the
licensee whose reports are in default.
Sec. 5-1-14. Penalty and Interest on Delinquency in Collection and
Remittance of Tax--False Return--Collection of Tax and Penalties. If
any person responsible for the collection and remittance of the luxury
tax on retail alcoholic beverage sales fails to remit the tax on the
date that payment is due, there shall be added to the amount of the tax
due ten percent of the amount of the tax unpaid. The amount of the tax
and penalty shall bear interest at the rate of 1.5% per month from the
date of delinquency until paid. If any licensee files a false or
fraudulent return, there shall be added to the tax an amount equal to
the tax evaded, or attempted to be evaded. All such taxes and civil
penalties may be collected by assessment and distraint.
Sec. 5-1-15. Tax Agreements Authorized. The Tribal Council finds
that the public interest of residents of the Reservation is best served
by cooperation between the Tribe, the State of South Dakota and/or its
subdivisions in the area of taxation of alcoholic beverages.
Accordingly, the Tribal Council hereby authorizes the Revenue
Department to negotiate tax collection agreements with the State and/or
state subdivisions. Such agreements shall be submitted by the Revenue
Department to the Tribal Council for approval before they are final.
Sec. 5-1-16. Dedication of Tax Revenue. All tax revenue collected
pursuant to this Ordinance shall be dedicated to alcohol abuse
education, enforcement, prevention, regulation and treatment.
Section 6. Penalties Imposed for Violations of Ordinance
Sec. 6-1-1. General Penalties. Anyone violating this Ordinance
shall be subject to suspension or revocation of their tribal liquor
license, including but not limited to their wholesale license, retail
license, temporary retail license, transport license, distilling plant
license, and solicitors license.
Sec. 6-1-2. Hearing on Alleged Violations. Anyone having
information that a person has violated any provisions of this Ordinance
may file with the Revenue Department an affidavit specifically setting
forth such violation. Upon receipt of such affidavit, the Revenue
Department may set the matter for a hearing before the Alcoholic
Beverage Control Commission within 60 days. A copy of the affidavit and
notice of hearing shall be mailed to the affected person by registered
mail not less than five days before the hearing. A record of such
hearings will be made by stenographic notes or by the use of an
electronic recording device. The person shall have the right to be
represented by counsel, question witnesses and examine the evidence
against him or her as well as to present evidence and witnesses in his
or her own defense.
Sec. 6-1-3. Suspension or Revocation of License. If after such
hearing the Alcoholic Beverage Control Commission
[[Page 30335]]
finds the violation set forth in the affidavit has been proved by
preponderance of the evidence, an order shall be served on the licensee
revoking or suspending the license for a period of time or imposing
such other civil penalties as are provided for in this Ordinance. A
decision of the Commission imposing civil fines or directing the
payment of taxes may be automatically stayed by posting an appeal bond
with the Superior Court in the amount of the fine imposed or taxes to
be collected. A decision of the Commission revoking or suspending a
license may be automatically stayed by posting a Ten Thousand Dollar
($10,000) appeal bond with the Superior Court.
Sec. 6-1-4. Powers of the Alcoholic Beverage Control Commission
Chairman. The Chairman of the Alcoholic Beverage Control Commission, or
his designee, at a hearing under this Ordinance shall have the power to
administer oaths and to subpoena and examine witnesses.
Sec. 6-1-5. Appeal. Any person who is aggrieved by a decision of
the Alcoholic Beverage Control Commission suspending or revoking a
license, imposing a civil penalty or collecting taxes imposed by this
Ordinance may appeal the Commission's decision to the Superior Court by
filing a notice of appeal, clearly stating the grounds therefore, and
serving a copy of the notice of appeal by hand on the Director of the
Revenue Department within thirty days from the date of the decision.
The Superior Court shall uphold the decision of the Alcoholic Beverage
Control Commission unless it finds that the Commission's decision was
arbitrary and capricious, and an abuse of discretion, or not in
accordance with this Ordinance or other applicable tribal or Federal
law. In the event that a decision imposing a civil penalty or ordering
the collection of taxes is overturned on appeal, the Court may order
the Commission to refund such penalty or taxes.
Section 7. Contraband
Sec. 7-1-1. Contraband Alcoholic Beverages--Containers--Forfeiture.
The introduction of alcoholic beverages into, and possession, sale or
use of alcoholic beverages within, the territory of the Cheyenne River
Sioux Tribe contrary to tribal law is inimical to the public interest.
All alcoholic beverages introduced into, or possessed, offered for sale
or used within, the territory of the Cheyenne River Sioux Tribe
contrary to tribal law, and any receptacle or container of any kind in
which said alcoholic beverages are found, are hereby declared to be
contraband. No property right shall exist in contraband alcoholic
beverages or any receptacle or container wherein such alcoholic
beverages are found. Contraband alcoholic beverages and any receptacle
or container in which such alcoholic beverages are found are hereby
declared forfeit and shall be seized forthwith. In addition to any
other civil penalty in this Ordinance, any person who violates this
section may be subject to a fine not to exceed Five Thousand Dollars
($5,000).
Sec. 7-1-2. Seizure of Contraband Alcoholic Beverages--Containers--
Search Warrant. When an officer of the Tribe has probable cause to
believe that a person has contraband alcoholic beverages within the
territory of the Tribe and a search warrant is required under tribal
law or under the Federal Indian Civil Rights Act, 25 U.S.C. 1301 et
seq., he may apply to the Superior Court of the Tribe for a warrant to
authorize the search of said person and any places, containers,
conveyances, and receptacles, etc., which the officer has probable
cause to believe contains said contraband alcoholic beverages. If the
Superior Court determines that probable cause exists that a person has
contraband alcoholic beverages within the territory of the Tribe, then
the Court shall issue a search warrant describing the person, places
and things to be searched and the things to be seized. The officer
shall execute the search warrant and seize any and all contraband
alcoholic beverages found and any receptacles and any containers in
which said contraband alcoholic beverages are found. The officer shall
store the contraband in the Evidence Room of the Law Enforcement
Department or such other location as determined by the Commission to be
an adequate storage facility for contraband. The contraband shall be
stored for a period of not less than ninety (90) days prior to
disposition, provided that if any person claiming an interest therein
files a claim with the Superior Court, pursuant to Section 7-1-3, for a
determination as to whether the items seized are contraband, the
contraband shall be stored until the time for filing an appeal from a
Superior Court determination has elapsed, if no appeal is taken and if
an appeal is taken from any determination by the Superior Court, the
contraband shall be held until the appeal is fully and finally decided.
Sec. 7-1-3. Judicial Determination as to Nature of Alcoholic
Beverages Seized.
(A) Within ten calendar days after the seizure of any alcoholic
beverages, or any receptacle or container in which said alcoholic
beverages are found, on the grounds that they are contraband, any
person claiming an interest therein may initiate an action for a
determination as to whether the items seized are contraband by filing a
claim with the Superior Court and serving notice of the claim on the
Director of the Revenue Department. The Superior Court shall then
schedule a hearing on the matter within fifteen calendar days after the
filing of the claim.
(B) The Superior Court shall, upon good cause shown, permit
discovery to be taken on an expedited basis. The Superior Court shall
regulate the manner and timing of such discovery; provided that when
the Superior Court orders expedited discovery, the time for a hearing
may be postponed for a period of sixty (60) days. All discovery shall
be completed prior to the hearing date.
(C) The Tribe shall have the burden to establish a prima facie case
that items seized are contraband, and after such proof is made, the
burden shall shift to the claimant to prove by a preponderance of the
evidence that the items seized are not contraband.
(D) If the Superior Court determines that the items seized by the
Tribe are not contraband, the Court shall order the return of the items
to the claimant after the time for filing an appeal has elapsed. If the
Superior Court determines that the items seized are contraband, the
Court shall declare the items to be contraband and the Tribe may
dispose of the contraband as it deems fit after the time for filing an
appeal has elapsed, if no appeal is taken. If an appeal is taken from
any determination by the Superior Court, the contraband shall be held
until the appeal is fully and finally decided.
(E) The Tribe may appeal an adverse decision of the Superior Court
under this section to the Appellate Court by filing a notice of appeal
within ten calendar days of the date of the decision of the Superior
Court. Filing of the notice of appeal by the Tribe shall automatically
stay the decision of the Superior Court. The Appellate Court shall
uphold the decision of the Superior Court unless it is clearly
erroneous.
(F) The claimant may appeal an adverse decision of the Superior
Court under this section to the Appellate Court by filing a notice of
appeal within ten calendar days of the date of the decision of the
Superior Court and posting an appeal bond in an amount set by the
Superior Court. The Superior Court shall set the appeal bond in an
amount sufficient to pay for the storage of the items in dispute during
the pendency of the appeal and any court costs which may be incurred by
the
[[Page 30336]]
Tribe on the appeal. Filing of the notice of appeal by the claimant and
payment of the appeal bond shall automatically stay the decision of the
Superior Court. The Appellate Court shall uphold the decision of the
Superior Court unless it is clearly erroneous.
Section 8. Exceptions
Sec. 8-1-1. Exceptions to this Ordinance. The provisions of this
Ordinance shall not apply to the sale of alcoholic beverages, or to
ethanol, used or intended for use, for the following purposes:
(A) For scientific research or manufacturing products other than
liquor;
(B) Medical use under the direction of a physician, medical or
dental clinic, or hospital;
(C) In preparations not fit for human consumption such as cleaning
compounds and toilet products, or flavoring extracts;
(D) By persons exempt from regulation in accordance with the laws
of the United States; or
(E) For sacramental use such as wines delivered to priests, rabbis,
and ministers.
Section 9. Miscellaneous Provisions
Sec. 9-1-1. Agreement by Licensee to Grant Access for Inspection
Purposes. Every licensee under this Ordinance, as a condition of the
grant of a tribal license, consents to the inspection of his premises,
including all buildings, safes, cabinets, lockers and storerooms
thereon. Such inspection shall be available upon the demand of the
Commission. These inspections shall be conducted by a duly appointed
designee of the Commission, or tribal or Federal police. All books and
records dealing with the sale and ownership of alcoholic beverages
shall be open for inspection purposes by the Commission.
Sec. 9-1-2. Transferability. No license issued pursuant to this
Ordinance shall be transferable; provided, however, upon death of an
individual licensee, the personal representative of the estate may
operate under a valid license for sixty (60) days after the licensee's
death, so long as said personal representative shall apply to the Tribe
for a new license within said sixty (60) day period.
Sec. 9-1-3. Health Warnings.
(A) The Health Department of the Cheyenne River Sioux Tribe shall
create signs warning of the dangers faced by those who consume alcohol,
including warning the dangers to pregnant women, the dangers of drunk
driving and such other warnings as the Health Department shall deem
necessary. The language in such signs shall be referred to the Indian
Health Service for comments and shall be approved by a licensed
physician prior to issuance. The Revenue Department shall issue copies
of such signs to retail dealers. Each retail dealer shall display said
signs in a conspicuous manner in close proximity to the area where
alcohol is dispensed or sold.
(B) The Health Department of the Cheyenne River Sioux Tribe shall
create pamphlets warning pregnant persons of the dangers of alcohol use
during pregnancy. The language in such pamphlets shall be referred to
the Indian Health Service for comments and shall be approved by a
licensed physician prior to issuance. The Revenue Department shall
issue copies of such pamphlets to all retail dealers. Each retail
dealer shall offer one of these pamphlets to each pregnant person who
is refused service pursuant to Sec. 4-1-5.
Sec. 9-1-4. Server Training. Every person who serves alcoholic
beverages on the premises of an on-sale license shall attend 8 hours of
training in a server training program approved by the Alcoholic
Beverage Control Commission on the latter of his or her 60th day of
employment or within 60 days after the effective date of this
Ordinance.
Sec. 9-1-5. Age to Sell Alcoholic Beverages.
(A) No package (off-sale) licensee who holds a valid liquor license
may permit any person under the age of twenty-one (21) years to sell
alcoholic beverages on the licensed premises, except as set forth in
subsection (B) of this section.
(B) A package (off-sale) licensee who holds a valid liquor license
may permit a person between the age of eighteen (18) years and twenty-
one (21) years to sell malt beverages on the licensed premises if:
(1) Sales of malt beverages constitute less than fifty percent
(50%) of the gross receipt of the business, as determined and certified
by the Commission; and
(2) An employee over the age of twenty-one (21) years is on the
licensed premises when the malt beverage is sold.
(C) No on-sale licensee may permit any person under the age of
twenty-one (21) years to sell, serve, or dispense alcoholic beverages
on the licensed premises, except as set forth in subsection (D) of this
section.
(D) An on-sale licensee may permit persons between the age of
eighteen (18) years and twenty-one (21) years to sell, serve, or
dispense alcoholic beverages if:
(1) Sales of food and non-alcoholic beverages constitute more than
50% of the gross receipts of the business, as determined and certified
by the Commission; and
(2) An employee over the age of twenty-one (21) is on the licensed
premises when the alcoholic beverage is sold, served or dispensed.
(E) ``Sell, serve or dispense'' under this section means to take
orders for alcoholic beverages and to deliver alcoholic beverages to
customers as a normal adjunct of waiting tables. The term does not
include bartending or mixing alcoholic drinks. Persons under the age of
twenty-one (21) years are not permitted to tend bar or mix drinks.
(F) Violation of this section may result in a fine not to exceed
Five Hundred Dollars ($500) per violation.
Sec. 9-1-6. Tribal Sovereign Immunity. No provision of this
Ordinance shall be construed to permit the recovery of money damages
against the Tribe. No provision of this Ordinance shall be construed to
waive the sovereign immunity of the Tribe, except as expressly provided
in Sections 3-1-11, 6-1-5, 7-1-3.
Section 10. Severability
Sec. 10-1-1. Severability. If for any reason, or circumstances, any
provision(s) or section(s) of this Ordinance are held invalid by the
appropriate court of jurisdiction, the remainder of this Ordinance and
other provisions or sections shall not be affected in the application
of this Ordinance or to any person covered by this Ordinance.
Section 11. Effective Date of Ordinance No. 48 as Amended
Sec. 11-1-1. Continued Operation Under Existing License. Ordinance
No. 48 is hereby amended and said Ordinance is effective as amended
thirty (30) days after its publication in the Federal Register. Any
licensee operating under an existing tribal license may continue to
operate there under until such license expires provided that the
licensee complies with all the provisions contained herein, including
the provisions relating to hours of operation, prohibited acts and
taxation.
Certification
I, the undersigned, as Secretary of the Cheyenne River Sioux Tribal
Council, certify that the Tribal Council is composed of fifteen (15)
members of whom 10, constituting a quorum, were present at a meeting,
duly and regularly called, noticed and convened and held this 10th day
of March, 2023 Regular Session; in Eagle Butte, South Dakota; and that
the foregoing Ordinance No. 48, the Alcoholic Beverages Control Law
[[Page 30337]]
of the Cheyenne River Sioux Tribe of South Dakota, as Amended, was duly
adopted at such meeting by a roll call vote of 10 yes, 0 no, 0
abstaining, 2 absent and 3 vacant.
[FR Doc. 2023-10035 Filed 5-10-23; 8:45 am]
BILLING CODE 4337-15-P