Notice2022-01787
Ponca Tribe of Nebraska Liquor Control Ordinance
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 28, 2022
Effective
February 28, 2022
Issuing agencies
Interior DepartmentIndian Affairs Bureau
Abstract
This notice publishes the Ponca Tribe of Nebraska's Liquor Control Ordinance. This Liquor Control Ordinance amends and supersedes the existing Liquor Control Ordinance, first enacted by the Ponca Tribe of Nebraska on July 21, 2018, and published in the Federal Register on September 11, 2018.
Full Text
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<title>Federal Register, Volume 87 Issue 19 (Friday, January 28, 2022)</title>
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[Federal Register Volume 87, Number 19 (Friday, January 28, 2022)]
[Notices]
[Pages 4641-4652]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-01787]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[223A2100DD/AAKC001030/A0A501010.999900]
Ponca Tribe of Nebraska Liquor Control Ordinance
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
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SUMMARY: This notice publishes the Ponca Tribe of Nebraska's Liquor
Control Ordinance. This Liquor Control Ordinance amends and supersedes
the existing Liquor Control Ordinance, first enacted by the Ponca Tribe
of Nebraska on July 21, 2018, and published in the Federal Register on
September 11, 2018.
DATES: This ordinance shall become effective February 28, 2022.
FOR FURTHER INFORMATION CONTACT: Todd Gravelle, Supervisory Tribal
Operations Specialist, Great Plains Regional Office, Bureau of Indian
Affairs, 115 Fourth Avenue South East, 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 Ponca Tribe of Nebraska first
adopted its Liquor Control Ordinance on September 11, 2018, and this
amendment supersedes the existing Liquor Control Ordinance, duly
adopted by the Ponca Tribal Council on July 6, 2021. By the delegated
authority contained in 3 IAM 4, the Great Plains Regional Director,
Bureau of Indian Affairs, approved the amendment on January 19, 2022.
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 Ponca Tribe of Nebraska duly adopted this
Liquor Control Ordinance by Resolution No. 21-42, on July 6, 2021.
Bryan Newland,
Assistant Secretary-Indian Affairs.
The Ponca Tribe of Nebraska's Liquor Control Ordinance shall read
as follows:
Ponca Tribe of Nebraska
Title XVI
Liquor Control
Chapter 1
General Provisions
Section 16-1-1. Authority. This Title is enacted by the Tribal
Council:
1. Pursuant to and in accordance with Article V, Section 1(j), (l),
(o), and (p) of the Constitution;
2. Pursuant to and in accordance with federal statutes and other
laws, including the Act of August 15, 1953, 67 Stat. 586, codified at
18 U.S.C. 1161, which provide a federal legal basis for the Tribe to
regulate liquor on Tribal lands; and
3. In conformity with applicable state laws.
Section 16-1-2. Purpose. The Tribe wishes to exercise its
sovereignty and federal delegated authority to control liquor on Tribal
lands and, therefore, the purpose of this Title is:
1. To control liquor manufacturing, distribution, sale, and
possession on Tribal lands;
2. To establish procedures for the licensing of the manufacture,
distribution, and sale of liquor on Tribal lands; and
3. To otherwise regulate the manufacture, distribution, sale, and
consumption of liquor.
Section 16-1-3. Definitions. Unless the context requires otherwise
or
[[Page 4642]]
another definition is provided for a particular chapter or section, in
this Title:
1. ``Alcohol'' means the product of distillation of any fermented
liquid, whether rectified or diluted, whatever the origin, and includes
synthetic ethyl alcohol and alcohol processed or sold in a gaseous
form, but excludes denatured alcohol or wood alcohol.
2. ``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 and includes, but is not limited to, beer, ale, malt liquor,
stout, lager beer, porter, near beer, flavored malt beverage, and hard
cider.
3. ``Board'' means the Ponca Tribe of Nebraska Liquor Control
Board.
4. ``Board member'' means a member of the Board.
5. ``Brewer'' means any person engaged in the business of
manufacturing beer.
6. ``Consume'' means knowingly and intentionally drinking or
otherwise ingesting.
7. ``Distiller'' means any person engaged in the business of
distilling or manufacturing spirits.
8. ``Distribute'' means to acquire, purchase, store, introduce,
import, export, sell, offer for sale, deliver, transport, give away,
offer to give away, or otherwise possess liquor for resale or further
processing, or otherwise introduce, import, export, sell, resell, offer
for sale or resale, deliver, transport, give away, or offer to give
away liquor to a retailer.
9. ``Liquor'' means alcohol, beer, spirits, wine, all other
fermented, spirituous, vinous, or malt liquors, or combinations thereof
and mixed liquor, a part of which is fermented, spirituous, vinous,
malt liquor, or otherwise intoxicating, and includes every liquid,
solid, semi-solid, or other substance, patented or not, containing
alcohol, beer, spirits, or wine and all preparations or mixtures of
liquor capable of human consumption.
10. ``Manufacture'' means to distill, rectify, ferment, brew, make,
mix, concoct, process, blend, bottle, or fill an original package with
any liquor and includes blending, but does not include the mixing or
other preparation of drinks for serving for consumption on the premises
where sold, sampled, or given away.
11. ``Manufacturer'' means any person engaged in the manufacture or
other preparation of liquor in any form whatsoever, including brewers,
distillers, and wineries, but does not include the mixing or other
preparation of drinks for consumption on the premises where sold,
sampled, or given away.
12. ``On-sale'' means the sale of liquor for consumption upon the
premises where sold or given away and includes the mixing or other
preparation of drinks for serving for consumption on the premises where
sold or given away.
13. ``Off-sale'' means the sale of liquor for consumption off the
premises where sold or given away.
14. ``Retailer'' means any person who acquires liquor from a
wholesaler or otherwise sells, offers for sale, distributes, gives
away, or offers to give away any liquor from any location or facility
for any purpose other than resale or further processing.
15. ``Retail sale'' means any sale made for any purpose other than
for resale or further processing.
16. ``Sale'' means the transfer of ownership of, title to, or
possession of goods for money, other goods, services, or other valuable
consideration, including bartering, trading, exchanging, renting,
leasing, conditional sales, and any sales where possession of goods is
given to the buyer but title is retained by the seller as security for
the payment of the purchase price.
17. ``Sampling'' means consumption on the premises of a licensee of
not more than five (5) samples of one (1) fluid ounce or less of liquor
by the same person in a twenty-four (24) hour period.
18. ``Sell'' means to solicit or receive an order for a sale, make
or consummate a sale, or keep or expose for sale and includes intending
to sell and keeping with intent to sell.
19. ``Spirits'' means any beverage which contains alcohol obtained
by distillation, whether mixed with water or other substance in
solution, and includes brandy, rum, whiskey, gin, or other spirituous
liquors and such liquors when rectified, blended, or otherwise mixed
with alcohol or other substances.
20. ``Tribal lands'' means:
a. All lands held in trust by the United States for the benefit of
the Tribe or its members;
b. All fee lands owned by the Tribe and located within one or more
of the Tribe's service areas as defined by Public Law 101-484 and any
amendments thereto; and
c. All lands of the Tribe or its members defined as Indian country
by 18 U.S.C. 1151, including dependent Indian communities.
21. ``Wholesaler'' means any person who distributes or is engaged
in distributing of liquor.
22. ``Wine'' means any alcoholic beverage obtained by fermentation
of fruits, vegetables, or other agricultural products containing sugar,
including such beverages when fortified by the addition of alcohol or
spirits.
23. ``Winery'' means any person engaged in the business of
producing or manufacturing wine.
Section 16-1-4. Consent to Jurisdiction.
1. This Title shall apply to any person who:
a. Resides or is located on Tribal lands;
b. Conducts business or engages in a business transaction on Tribal
lands, with another person located on Tribal lands, or with the Tribe;
c. Enters into a consensual relationship with Tribe or its members;
d. Acts under Tribal authority; or
e. Enters Tribal lands.
2. Any person to whom this Title applies shall be deemed to have
consented to the following:
a. To be bound by the terms of this Title;
b. To the exercise of jurisdiction of the Liquor Board over him or
her; and
c. To the exercise of jurisdiction by the Tribal Court over him or
her in an action arising under this Title.
Section 16-1-5. Non-Liability. There shall be no liability on the
part of the Tribe, its agencies, departments, enterprises, agents,
officers, officials, or employees for any damages which may occur as a
result of reliance upon or conformity with the provisions of this
Title.
Section 16-1-6. Severability. If any chapter, section, or provision
of this Title or amendment made by this Title is held invalid, the
remaining chapters, sections, and provisions of this Title and
amendments made by this Title shall continue in full force and effect.
Section 16-1-7. Sovereign Immunity. Except where expressly waived
by a section of this Title specifically referring to a waiver of
sovereign immunity, nothing in this Title shall be construed as
limiting, waiving, or abrogating the sovereignty or the sovereign
immunity of the Tribe or any of its agencies, departments, enterprises,
agents, officers, officials, or employees.
Chapter 2
Liquor Control Board
Section 16-2-1. Establishment.
1. There is hereby established a liquor control board to be known
as the Ponca Tribe of Nebraska Liquor Control Board as an agency of the
Tribe, under the authority of the Tribe, and delegated the powers,
duties, and responsibilities set
[[Page 4643]]
forth in this Title and as otherwise provided by the laws of the Tribe.
2. The Board may employ such other personnel and employees as may
be required for the proper discharge of its duties under this Title,
provided that, to the maximum extent feasible, the Board shall first
use personnel and employees of the Tribal administration as authorized
in this Chapter.
Section 16-2-2. Composition. The Board shall consist of five (5)
members as follows:
1. One (1) Tribal Council member designated by the Tribal Council,
who shall serve as the Chairperson of the Board; and
2. Four (4) individuals who shall be appointed by the Tribal
Council.
Section 16-2-3. Qualifications. To be qualified to be appointed a
Board member, a person shall:
1. Be at least the age of majority;
2. Have no conflicts of interest, as defined in this Chapter;
3. Not have been convicted of any felony or any crime involving or
related to alcohol or drugs in any court of any jurisdiction in the
five (5) years prior to appointment unless pardoned and fully restored
of his or her civil rights by the proper authorities prior to
appointment;
4. Be willing and able to comply with the ethical duties of Board
members, as defined in this Chapter;
5. Be willing and able to perform the Board's duties in compliance
with the laws of the Tribe;
6. Have or acquire knowledge of this Title;
7. Have the time available to actively fulfill the duties of a
Board member; and
8. Be willing to receive orientation and training regarding the
duties of the Board.
Section 16-2-4. Term of Office.
1. The Tribal Council member designated by the Tribal Council to
serve on the Board shall hold office until he or she no longer holds
office on the Tribal Council regardless of whether there is a successor
in the office, but a former Tribal Council member designated by the
Tribal Council to serve on the Board may be appointed to another
position on the Board in accordance with this Chapter.
2. Upon the selection of the initial Board members, the Tribal
Council shall choose from the members other than the Tribal Council
member designated by the Tribal Council to serve on the Board, by lot,
one (1) Board member who will serve an initial term of one (1) year,
one Board member who will serve an initial term of two (2) years, and
two (2) Board members who will serve an initial term of three (3)
years. Thereafter, the term of office for Board members shall be three
(3) years.
3. Except as otherwise provided herein, each Board member shall
serve until he or she resigns, is removed, or the Tribal Council
appoints his or her successor.
Section 16-2-5. Compensation. Board members shall be compensated at
a rate set by the Tribal Council. In addition, Board members shall be
paid for mileage for every Board meeting attended in accordance with
the rules applicable to and at the standard rate established for Tribal
officers and employees.
Section 16-2-6. Resignation and Removal.
1. Any Board member may resign from his or her position by
delivering a written resignation to the Tribal Council.
2. Any Board member who is a Tribal Council member designated by
the Tribal Council to serve on the Board shall automatically be removed
from the Board upon the Tribal Council member's resignation or removal
from the Tribal Council.
3. The Tribal Council may, by majority vote, remove a Board member
for any the following:
a. Violating or permitting violation of this Title;
b. Neglect of duty;
c. Malfeasance or misfeasance in the handling of liquor control
matters;
d. Acceptance or solicitation of bribes;
e. Violation of the ethical duties or conflict of interest
provisions of this Chapter;
f. Unexcused absence from three (3) or more consecutive Board
meetings;
g. Any crime committed against the Tribe which results in a
conviction or admission of guilt; or
h. Upon the happening of any event which would have made the Board
member ineligible for appointment if the event had occurred prior to
appointment.
4. The Tribal Council's decision to remove a Board member shall be
final and not subject to challenge, review, or appeal.
Section 16-2-7. Vacancies. In the event of a vacancy on the Board,
whether by removal, resignation, or otherwise, the Tribal Council shall
appoint a replacement to serve the remaining term of the Board member
being replaced. In the event of an emergency vacancy, the Tribal
Council may hold a special meeting to fill the vacancy.
Section 16-2-8. Officers.
1. The Chairperson of the Board shall call and preside over Board
meetings. The Chairperson shall report to the Tribal Council as
required.
2. The Board shall elect from its members a Secretary at its first
meeting in each calendar year or at the next meeting of the Board if a
vacancy occurs in the office of Secretary.
3. The Secretary shall be responsible for assuring the timely and
proper production, distribution, and storage of all written records of
the Board, including administrative and financial documents. The
Secretary shall keep minutes of all meetings of the Board and shall
keep informed about the Board's expenditures and budget.
Section 16-2-9. Ethics and Conflicts.
1. No person may be appointed to the Board who:
a. Is employed by, an officer of, or has a private ownership
interest, whether direct or indirect, in any entity or organization
that is a retailer, wholesaler, brewer, distiller, winery, or other
manufacturer;
b. Is engaged in litigation against the Tribe in a matter related
to the subject matter of the Board; or
c. Has a similar interest that would necessarily conflict with the
impartial performance of a Board member's duties.
2. The Tribal Council's determination whether an applicant for the
Board is barred from appointment by a conflict of interest shall be
final and not subject to challenge, review, or appeal.
3. Board members shall:
a. Not accept or request any gift, gratuity, compensation,
employment, or other thing of value from any manufacturer, wholesaler,
retailer, holder, or applicant for a liquor license, or other person
subject to this Title;
b. Avoid the appearance of impropriety;
c. Not act in an official capacity when a matter before the Board
directly and specifically affects a Board member's own interests or the
interests of his or her immediate family;
d. Not attempt to exceed the authority granted to Board members by
this Title;
e. Recognize that the authority delegated by this Title is to the
Board as a whole, not to individual Board members and, accordingly, the
powers of the Board may only be exercised by the Board acting through
the procedures established by this Title;
f. Not take action on behalf of the Board unless authorized to do
so by the Board;
g. Not involve the Board in any controversy outside the Board's
duties; and
h. Hold all confidential information revealed during the course of
Board business in strict confidence and discuss or disclose such
information only to persons who are entitled to the information and
only for the purpose of conducting official Board business.
[[Page 4644]]
Section 16-2-10. Recusal.
1. No Board member shall participate in any action or decision by
the Board directly involving:
a. Himself or herself;
b. A member of his or her immediate family;
c. Any person, business, or other entity of which he or she or a
member of his or her immediate family is an employee;
d. Any business or other entity in which he or she or a member of
his or her immediate family has a substantial ownership interest; or
e. Any business or other entity with which he or she or a member of
his or her immediate family has a substantial contractual relationship.
2. Nothing in this Section shall preclude a Board member from
participating in any action or decision by the Board which:
a. Generally affects a class of persons, regardless of whether the
Board member or a member of his or her immediate family is a member of
the affected class; and
b. Affects the Tribe, an economic enterprise of the Tribe, or a
person or entity in a contractual relationship with the Tribe or an
economic enterprise of the Tribe, regardless of whether the Board
member is also a member of the Tribe.
3. A Board member may voluntarily recuse himself or herself and
decline to participate in any action or decision by the Board when the
Board member, in his or her own discretion, believes:
a. That he or she cannot act fairly or without bias; or
b. That there would be an appearance that he or she could not act
fairly or without bias.
Section 16-2-11. Quorum. Three (3) Board members shall constitute a
quorum for conducting business.
Section 16-2-12. Meetings.
1. The Board may hold meetings as it deems necessary.
2. The Chairperson of the Board shall have the authority to call a
meeting of the Board as he or she sees fit upon forty-eight (48) hours
written notice. Written notice to a Board member may be dispensed with
as to any Board member who is actually present at the meeting at the
time it convenes.
3. The Board may conduct a meeting exclusively by telephone, video
conference, or other electronic means provided that the notice of the
Board meeting provides the manner in which the meeting will be
conducted and includes information on how a person may attend the
meeting, such as a telephone number for participation in the meeting.
4. All decisions of the Board shall be made by a majority vote of
the Board members attending the meeting, provided a quorum is present,
unless otherwise provided in this Title.
5. Matters dealing with personnel or other confidential matters
shall be conducted in executive session and shall not be open to the
public.
Section 16-2-13. Powers and Duties of Board. The power, authority,
and duties of the Board shall be as follows:
1. To administer, implement, and enforce this Title;
2. To make recommendations to the Tribal Council concerning
amendments to this Title;
3. To set fees for applications, licenses, and renewal of licenses
as provided in this Title;
4. To receive applications for and issue to and suspend, cancel,
and revoke licenses of manufacturers, wholesalers, and retailers in
accordance with this Title and the rules and regulations of the Board;
5. To obtain information and conduct background investigations to
determine the suitability of an applicant for a liquor license;
6. To bring legal action in the name of the Tribe to enforce this
Title;
7. To inspect any premises where liquor is manufactured,
distributed, or sold as provided in this Title;
8. To conduct an audit to inspect any licensee's records and books
as provided in this Title;
9. To conduct hearings and hear appeals authorized by this Title,
provided the Board shall have no authority to declare any portion of
this Title or other law of the Tribe invalid for any reason;
10. In the conduct of any hearing or audit, to issue subpoenas,
compel the attendance of witnesses, administer oaths, and require
testimony under oath at any hearing conducted by the Board;
11. To examine, under oath, either orally or in writing, any person
with respect to any matter subject of this Title;
12. To collaborate and cooperate with such other agencies of the
Tribe, other tribes, the United States, and the states as necessary to
implement and enforce this Title;
13. To develop standard forms and to require by regulation the
filing of any such forms or reports necessary for implementation of
this Title;
14. To utilize or adopt forms from other appropriate jurisdictions
to use as its own so long as such forms meet the requirements of the
laws of the Tribe for which such forms are utilized;
15. To promulgate rules and regulations, subject to approval of the
Tribal Council and consistent with the laws of the Tribe, which are
necessary for carrying out this Title;
16. To delegate any of its power, authority, and duties to an
individual Board member or other personnel or employee of the Board,
provided that the Board shall not delegate its power to promulgate
rules and regulations or to conduct hearings and hear appeals; and
17. To perform all other duties delegated or assigned to the Board
by this Title or other laws of the Tribe or the Tribal Council and
otherwise implement this Title.
Section 16-2-14. Obtaining Information.
1. The Board may request such information relevant and material to
the enforcement of this Title from any and all persons who:
a. Are engaged in the introduction, sale, distribution, or
possession of liquor on Tribal lands or with the Tribe; or
b. Are otherwise subject to the jurisdiction of the Tribe.
2. Upon a written request, such persons shall provide the
information requested by the Board. The Board may issue a subpoena as
provided in this Chapter or request the Court to issue a subpoena or
other order, including ex parte without a hearing, to obtain the
information required to be provided under this Section.
Section 16-2-15. Investigative Authority.
1. For the purpose of enforcing the provisions of this Title, the
Board shall have the authority to inspect property during regular
business hours, to examine and require the production of any pertinent
records, books, information, or evidence, and to require the presence
of any person and require testimony under oath concerning the subject
matter of any inquiry of the Board, and to make a permanent record of
the proceeding.
2. For the purpose of accomplishing the authority granted in this
Section, the Board shall have the power to issue subpoenas and summons
requiring attendance and testimony of witnesses and production of
papers or other things at any hearing held pursuant to this Title.
3. If a person fails to comply with a subpoena issued by the Board,
the Board may apply to the Tribal Court for issuance of an order to
show cause which directs that the person against whom the subpoena was
issued shall comply with the subpoena within ten (10) business days or
show cause why he or she should not be held in contempt of court in
accordance with the laws of the Tribe. The Tribal Court
[[Page 4645]]
shall issue the order to show cause without notice or hearing, unless
the Court finds that the subpoena was not lawfully issued or was not
properly served in accordance with this Section.
4. Any subpoena, summons, or notice issued by the Board shall be
served in the manner provided for service of the same in the rules of
procedure governing civil actions in Tribal Court.
Section 16-2-16. Rules and Regulations. The Board shall promulgate
rules and regulations, not inconsistent with this Title and subject to
the approval of Tribal Council, as it deems necessary or desirable in
the public interest in carrying out the duties of the Board including,
but not limited to:
1. Internal operational procedures;
2. The forms to be used for purposes of this Title;
3. Procedures for conducting investigations and inspections;
4. Procedures for all hearings conducted by the Board;
5. Conditions of sanitation of premises of licensees of the Board;
and
6. Protection of the due process rights of all persons subject to
the enforcement of this Title by the Board.
Section 16-2-17. Board Seal.
1. The Board shall acquire an official seal which shall be used on
all original and/or certified copies of all documents of the Board to
evidence their authenticity.
2. The seal of the Board shall:
a. Be circular in shape;
b. Contain the words ``Ponca Tribe of Nebraska'' around the top
edge;
c. Contain the words ``Liquor Control Board'' around the bottom
edge; and
d. Contain the words ``Official seal'' in the center.
3. The seal shall be secured at all times to prevent unauthorized
use.
Section 16-2-18. Stamps and Licenses.
1. The Board shall provide for the form, size, color, and
identifying characteristics of all licenses, permits, stamps, tags,
receipts, or other instruments evidencing receipt of any license or
payment of any fee administered by the Board or otherwise showing
compliance with this Title.
2. Any instrument developed by the Board under this Section shall
contain at least the following information:
a. The words ``Ponca Tribe'' or, if space allows, ``Ponca Tribe of
Nebraska;''
b. If space allows, the words ``Liquor Control Board;''
c. If the instrument is a license or permit, an indication of the
type of license or permit, its effective dates, and the name and
address of the person to whom it is issued; and
d. If the instrument is a receipt, an indication of what the
receipt is for, any amount the receipt is for, and the name and address
of the person to whom it is issued.
3. The Board shall provide for the manufacture, delivery, storage,
and safeguarding of any instrument developed under this Section and
shall safeguard such instruments against theft, counterfeiting, and
improper use.
Section 16-2-19. Records of Board.
1. The Board shall create and maintain accurate and complete
records which contain information and documents necessary for the
proper and efficient operation of the Board, including, but not limited
to:
a. All licenses, permits, and the like issued and any fees received
for the same;
b. All fees and penalties imposed, due, and collected; and
c. Each and every official transaction, communication, or action of
the Board.
2. The records of the Board shall be maintained at the office of
the Board and shall not be removed from said office without the written
authorization of the Board.
3. Except where provided otherwise in the laws of the Tribe, the
records and other information of the Board shall be considered public
records of the Board and shall be provided or made available for
inspection during regular business hours upon proper written request to
the Board and payment of any copying costs set by the Board, provided
that confidential personal information appearing in such records is
rendered unreadable prior to provision or inspection.
4. The records of the Board shall be subject to audit at any time
at the direction of the Tribal Council, but not less than once each
year.
Section 16-2-20. Use of Other Resources. In carrying out its duties
and responsibilities:
1. The Board may use the services, information, or records of other
departments and agencies of the Tribe or otherwise available to the
Tribe, both from within and without the Tribe, and such departments,
agencies, and others shall furnish such services, information, or
records upon request of the Board; and
2. The Board may use personnel and employees of the Tribal
administration as it would personnel and employees of the Board,
provided the Board coordinates with and obtains approval from the
Tribal administration.
Chapter 3
Liquor Licenses
Section 16-3-1. License Required. No person may sell, distribute,
or manufacture liquor on or to Tribal lands except as specifically
authorized by a license issued in accordance with this Chapter and
compliance with all other applicable laws governing the same.
Section 16-3-2. Exemptions. The following liquor and activities
shall be exempt from the provisions of this Title, including the
requirement of a liquor license:
1. Any pharmaceutical preparation containing liquor which is
prepared by a druggist according to a formula of the pharmacopeia or
dispensatory of the United States;
2. Wine or beer manufactured in a residence for consumption therein
and not for sale;
3. Alcohol used or intended for use:
a. For scientific research or manufacturing products other than
liquor;
b. By a physician, medical or dental clinic, or hospital;
c. In tinctures or toilet, medicinal, or antiseptic preparations
and solutions not intended for internal human use nor to be sold as
beverages, and which are unfit for beverage purposes, such as cleaning
compounds;
d. In food products known as flavoring extracts when manufactured
and sold for cooking, culinary, or flavoring purposes, and which are
unfit for use for beverage purposes; or
e. By persons exempt from regulation in accordance with the laws of
the United States;
4. Ethanol or ethyl alcohol for use as fuel; and
5. Liquor used in a bona fide religious ceremony.
Section 16-3-3. Liquor Licenses.
1. Licenses issued by the Board shall be of the following types:
a. Manufacturer license;
b. Wholesale license;
c. Retail license; and
d. Special event license.
2. Except for special event licenses, a license issued by the Board
shall be in force and effect for one (1) year following the date it is
issued, unless sooner revoked.
3. Any person required to obtain a license under this Chapter who
fails to obtain such license or who continues to manufacture,
distribute, or sell liquor after such license has been revoked shall
forfeit his or her right to manufacture, distribute, or sell liquor on
or to Tribal lands until he or she complies with all of the provisions
of this Title.
[[Page 4646]]
Section 16-3-4. Manufacturer License.
1. A person shall be required to first obtain a manufacturer
license from the Board if such person:
a. Brews, distills, or otherwise manufactures liquor on Tribal
lands; or
b. Otherwise is a manufacturer located on Tribal lands or to whom
this Title applies.
2. If a person manufactures liquor at two or more separate places
of business on Tribal lands, a separate manufacturer license shall be
required for each place of business.
3. A manufacturer license shall allow, without the requirement of
any other license under this Chapter:
a. The manufacture, distilling, brewing, and storage of liquor on
Tribal lands;
b. The distribution of liquor brewed, distilled, or otherwise
manufactured by the manufacturer to licensees on Tribal lands;
c. The distribution of liquor brewed, distilled, or otherwise
manufactured by the manufacturer on or from the location on Tribal
lands designated in the manufacturer license;
d. The purchase of liquor from licensed wholesalers and licensed
manufacturers;
e. The sampling of liquor on the premises of the manufacturer, a
licensed retailer, or licensed wholesaler by a licensee and his or her
employees; and
f. The retail on-sale of liquor to individuals on the premises of
the manufacturer.
4. The fees for a manufacturer license, including the renewal
thereof, shall be set by the Board.
Section 16-3-5. Wholesale License.
1. A person shall be required to first obtain a wholesale license
from the Board if such person:
a. Distributes liquor to Tribal lands or to any person on Tribal
lands;
b. Distributes liquor from a location on Tribal lands;
c. Stores liquor on Tribal lands for the purpose or intent of
distributing such liquor to any person; or
d. Otherwise is a wholesaler located on Tribal lands or to whom
this Title applies.
2. If a person distributes liquor at two or more separate places of
business on Tribal lands, a separate wholesale license shall be
required for each place of business.
3. A wholesale license shall allow:
a. The distribution of liquor to licensees on Tribal lands;
b. The distribution of liquor on or from the location on Tribal
lands designated in the wholesale license; and
c. The sampling of liquor on the premises of the wholesaler or a
licensed retailer by a licensee and his or her employees.
4. The fees for a wholesale license, including the renewal thereof,
shall be set by the Board.
Section 16-3-6. Retail License.
1. A person shall be required to first obtain a retail license from
the Board if such person:
a. Engages in the retail sale of liquor on Tribal lands; or
b. Otherwise is a retailer located on Tribal lands or to whom this
Title applies.
2. If a person makes sales or is a retailer at two or more separate
places of business on Tribal lands, a separate retail license shall be
required for each place of business.
3. A retail license shall allow:
a. The purchase of liquor for retail sale from licensed wholesalers
and licensed manufacturers;
b. The sale at retail, offering for sale at retail, and giving away
of liquor on the premises of the retailer specified in the retail
license for use or consumption but not for resale in any form; and
c. If the license permits on-sales, the use or consumption of
liquor, including sampling, on the premises of the retailer by
customers of the retailer.
4. A retail license shall designate whether the licensee is
permitted to make on-sales or off-sales, but shall not permit both.
5. The fees for a retail license, including the renewal thereof,
shall be set by the Board.
Section 16-3-7. Special Event License.
1. A person shall be required to first obtain a special event
license from the Board if such person engages in the retail sale of
liquor on Tribal lands for a period of less than seven (7) consecutive
days for an event.
2. If a person required to obtain a special event license makes
sales at two or more separate locations or events on Tribal lands, a
separate special event license shall be required for each location.
3. A special event license shall allow:
a. The purchase of liquor for retail sale from licensed wholesalers
and licensed manufacturers;
b. The sale at retail, offering for sale at retail, and giving away
of liquor for use or consumption on the premises of the event specified
in the license, but not for resale in any form; and
c. The sampling of liquor on the premises of the event by customers
of the licensee.
4. A special event license shall designate the precise day or
period of days for which the license was issued and shall be valid only
for such designated day or days.
5. The fees for a special event license shall be set by the Board.
6. The Board may provide by regulation for issuing special event
licenses utilizing expedited applications and procedures exempt from
the notice and hearing requirements of this Chapter to licensed
retailers conducting on-sales, including caterers and the like, for the
purpose of allowing such retailers to sell and offer for sale liquor at
events on premises other than the premises designated in the retail
license.
Section 16-3-8. Registration of Salesmen.
1. No person may take or solicit orders for liquor from a retailer
or wholesaler on Tribal lands without first registering with the Board
and providing the following:
a. His or her name and address or equivalent information to
identify the person or persons taking or soliciting such orders;
b. The name and address of his or her employer or principal; and
c. Such other information the Board may require.
2. There shall be no fee for registration under this Section, but
registration shall require renewal each calendar year.
Section 16-3-9. Application for License.
1. Any person or entity desiring a license pursuant to this Chapter
shall complete and file an application for the appropriate license with
the Board and pay such application fee as may be set by the Board to
defray the costs of processing the application.
2. In addition to any other items required by the Board, all
applications for a license pursuant to this Chapter shall include the
following:
a. The name, address, and telephone number of the applicant;
b. Any other names used by the applicant, including trade names;
c. Whether the applicant is a partnership, corporation, limited
liability company, sole proprietorship, or other entity and the
jurisdiction where the applicant is organized or registered to conduct
business;
d. The names, addresses, telephone numbers, and social security
numbers of the applicant's principals, which shall include the
applicant's officers, directors, managers, owners, partners, and
stockholders that own twenty-five percent (25%) or more of the
applicant's business, and the ten (10) largest owners, partners, and
stockholders of applicant's business regardless of percentage of stock
owned;
[[Page 4647]]
e. The identity of all persons, other than principals, who have an
economic interest in the applicant's business;
f. The federal tax identification number or social security number
of the applicant;
g. The location where the applicant intends to sell, distribute, or
manufacture liquor, as the case may be;
h. The type of application desired;
i. Whether the applicant will sell, distribute, or manufacture
liquor;
j. Whether the applicant is licensed to sell, distribute, or
manufacture liquor, as applicable, by the appropriate state within
whose boundaries the applicant is geographically located;
k. Information on each liquor license which the applicant has held
in any jurisdiction;
l. Whether the applicant or any of its principals have been
convicted of or plead guilty to a felony or any criminal offense
regarding liquor, including driving while intoxicated or under the
influence of liquor;
m. Whether the applicant or any of its principals have had a liquor
license revoked or suspended in any jurisdiction; and
n. Agreement by the applicant to comply with all applicable laws
and all conditions of the license issued by the Board.
Section 16-3-10. Notice of Application.
1. Upon receipt of an application for a license, the Board shall
issue a notice of the application which shall include:
a. The name of the applicant;
b. The location where the applicant intends to sell, distribute, or
manufacture liquor;
c. The date the Board intends to consider the application, which
shall be no sooner than thirty (30) days after the notice is posted in
accordance with this Section;
d. Information on submitting comments on the application to the
Board by mail or electronic means; and
e. A statement that comments on the application must be received no
later than the day prior to the Board considering the application.
2. The notice of the application shall be posted at all Tribal
governmental offices, the applicant's location if located on Tribal
lands, on the Tribe's website for at least thirty (30) days and, if an
edition of the Tribal newsletter will be released prior to
consideration of the application, published in the Tribal newsletter.
3. Persons may submit comments on the application in the manner
prescribed by the Board any time prior to the Board considering the
application.
Section 16-3-11. Processing Application.
1. Upon receipt of an application for a license, the Board shall
conduct or cause to be conducted a background investigation of the
applicant and each of its principals. The background investigation
shall include, at a minimum:
a. Verification of the applicant's business organization and
registration status;
b. Verification of the applicant's state liquor license, its
status, and any enforcement history; and
c. Conducting a criminal history check of the applicant and the
applicant's principals.
2. The Board shall issue a license to an applicant only if it
finds, after considering the application and any comments submitted by
the public:
a. The applicant did not knowingly provide any false information to
the Board regarding its application;
b. The applicant is or is expected to be licensed to sell,
distribute, or manufacture liquor, as applicable, by the appropriate
state within whose boundaries the applicant is geographically located;
c. If the applicant is a corporation or other entity, that it is
organized under the laws of the Tribe or registered to conduct business
in the territory of the Tribe in accordance with the laws of the Tribe
governing the same;
d. Neither the applicant nor any of its principles has been
convicted of or plead guilty to a felony or any criminal offense
related to liquor in any jurisdiction, other than driving while
intoxicated or under the influence of liquor;
e. Neither the applicant nor any of its principals has had a liquor
license revoked in any jurisdiction in the previous two (2) years;
f. The requirements of this Title and the Board's rules and
regulations have been met;
g. The applicant's capability, qualifications, and reliability are
satisfactory; and
h. The best interests of the Tribe, its members, and the community
as a whole will be served by the issuance of the license.
3. In reviewing an applicant's capability, qualifications, and
reliability, the Board shall consider:
a. The character and reputation of the applicant;
b. The suitability of the physical premises of the applicant;
c. The plan of operation of the applicant; and
d. Any other relevant consideration.
4. In reviewing the interests of the Tribe, its members, and the
community as a whole, the Board shall consider:
a. The need of the area to be served by the applicant;
b. The number of existing licensed businesses covering the area;
c. The desires of the community within the area to be served;
d. Any law enforcement problems which may arise because of the
sale, distribution, or manufacture of liquor by the applicant; and
e. Any other relevant consideration.
5. The Board, in its discretion and upon notice to the applicant
and the public, may conduct a hearing regarding any application. Such
hearing shall be open to the public and any interested persons shall be
permitted to present information, including witnesses and evidence, to
the Board regarding the application.
6. If an applicant has not obtained a liquor license from the
appropriate state within whose boundaries the applicant is located, the
Board may approve the applicant's license conditioned upon the receipt
of such state liquor license. If the Board conditionally approves a
license pursuant to this subsection, the Board shall not issue a
license to the applicant unless and until the applicant provides
satisfactory proof that it has received a state liquor license.
7. The Board shall issue a decision on the application in writing.
The Board's decision shall be served on the applicant and posted at all
Tribal governmental offices and on the Tribe's website for at least
fifteen (15) days and published in the next edition of the Tribal
newsletter.
Section 16-3-12. Form of License.
1. Each license issued pursuant to this Chapter shall specify:
a. The name and address of the licensee;
b. The type of license issued;
c. The premises to which the license applies;
d. If the license is a manufacturer license, the type of liquor the
licensee is permitted to manufacture, distill, brew, store, and sell;
and
e. If the license is a retail license, whether it permits on-sales
or off-sales with respect to the premises to which the license applies.
2. The licensee must keep the license posted at all times in a
conspicuous place on the premises for which it has been issued.
3. Licensees must pay all taxes assessed against it under the laws
of the Tribe.
4. Licensees shall comply, as a condition of retaining such
license, with all applicable laws of the Tribe and with
[[Page 4648]]
all requests of the Board for inspection, examination, and audit
permitted under this Title.
5. Notwithstanding anything else in the laws of the Tribe, a
license issued pursuant to this Chapter constitutes only a permit to
the licensee to conduct the activities permitted by the license for the
duration of the license and shall not be construed or deemed to
constitute a property or other vested right of any kind or give rise to
a legal entitlement to a license for any future period of time.
Section 16-3-13. Renewal of License.
1. A licensee may renew its license by filing an application for
renewal with the Board and paying such renewal application fee as may
be set by the Board to defray the costs of processing the application.
2. The renewal application shall identify any changes in
information required on the licensee's application for a license since
the issuance of the license or previous renewal, whichever is later, or
the applicant shall certify that no such information has changed.
3. A license issued pursuant to this Chapter shall be automatically
renewed upon submission of a renewal application and payment of the
applicable annual license fee, unless:
a. Information required on the application for a license has
changed in such a manner that it makes the licensee ineligible for a
license under this Chapter; or
b. The Board determines in writing that renewal would not be in the
best interests of the Tribe, its members, or the community as a whole.
Section 16-3-14. Transfer and Modification of License.
1. No license issued pursuant to this Chapter may be assigned or
transferred to any other person or entity.
2. Any change in ownership of the licensee that constitutes more
than fifty percent (50%) of the ownership interest in a licensee shall
require the issuance of a new license in accordance with this Chapter.
3. A licensee may request a change in the name and/or address of
the licensee or a change in location of the premises to which the
license applies by applying with the Board for a modification of the
license in accordance with this Section and paying such fee as may be
set by the Board to defray the costs of processing the modification.
4. The Board shall approve a change in the address of the licensee
upon request, provided the change in address is not a change in
location. The Board shall approve a change in the name of the licensee
provided that the name is not the name of an individual and the change
is not the result of any change in more than fifty percent (50%) of the
ownership interest in the licensee.
5. If a licensee requests a change in location, the Board shall
issue and post a notice of the modification of location and permit
public comment the same as an application for a new license. The Board
shall approve a change in location only if it finds, after considering
the application and any comments submitted by the public:
a. The applicant has obtained or is in the process of obtaining a
license or modification for the new location from the appropriate state
within whose boundaries the applicant is located, provided that the
Board may approve the change in location conditioned upon the receipt
of such state license or modification so long as the Board does not
issue the modified license unless and until the applicant provides
satisfactory proof that it has received a state license or
modification;
b. The physical premises of the new location is suitable for the
license; and
c. The best interests of the Tribe, its members, and the community
as a whole will be served by the modification of the location.
6. If the Board approves a modification of a license pursuant to
this Section, the Board shall issue a modified license to the licensee
reflecting the modified information. The modified license shall expire
on the same date as the original license.
7. Any modification of a license not provided for in this Section
shall require the issuance of a new license in accordance with this
Chapter.
Section 16-3-15. Appeal. An applicant or licensee may request a
formal conference regarding or file an appeal of a decision of the
Board denying an application for a license or any renewal or
modification thereof in accordance with the provisions of this Title
governing appeals before the Board.
Section 16-3-16. Sale of Stock.
1. Upon revocation, non-renewal, or other termination of a license
issued pursuant to this Chapter, a former licensee may dispose of any
liquor in its stock within thirty (30) days of expiration of its former
license by:
a. Selling such stock in whole or in part to a wholesaler or
retailer licensed pursuant to this Chapter;
b. Selling such stock in whole or in part to a wholesaler or
retailer located outside Tribal lands and authorized to purchase such
liquor;
c. Moving such stock in whole or in part outside Tribal lands to a
location where such liquor is authorized to be stored or held; or
d. Destroying such liquor under the supervision of the Board.
2. The Board may grant a former licensee an additional twenty (20)
days to sell or otherwise dispose of its stock upon the former licensee
showing good cause for such extension and no failure in due diligence
to make such disposal.
3. Any liquor remaining in the possession of a former licensee and
not disposed of in accordance with this Section shall be treated as
contraband in accordance with this Title.
4. A former licensee shall submit to the Board a complete report of
the disposition of all stock pursuant to this Section.
Section 16-3-17. Duty to Keep Records. Every licensee shall keep
and maintain accurate records of the purchase and sale of liquor,
including books of account, invoices, and bills. Such records shall be
maintained for a period of at least two (2) years.
Section 16-3-18. Operation of Licensed Premises.
1. No licensee may reseal, reuse, or refill any package that
contains or contained liquor.
2. No retail licensee may lock, or permit the locking of, the
entrances to the licensed premises until all persons other than the
licensee and its employees have left.
3. No licensee may change the name of its licensed premises without
first obtaining a modification of its license as provided in this
Chapter.
4. A licensee shall conduct its business in a decent, orderly, and
respectable manner and shall not permit loitering by intoxicated
persons, rowdiness, undue noise, or any other disturbance offensive to
the residents near the location of the licensee.
5. A retail licensee shall demand satisfactory evidence of a
person's age upon such person's attempt to purchase any liquor from the
retail licensee if such person appears to the retail licensee to be
under the age of twenty-one (21) and shall refuse to sell liquor to any
such person who fails or refuses to produce such satisfactory evidence.
Satisfactory evidence of age shall include:
a. A driver's license or identification card validly issued by any
state department of motor vehicles;
b. A United States active duty military identification;
c. A passport validly issued by any jurisdiction; and
d. Identification card issued by a federally recognized tribe which
includes a photograph and date of birth.
Section 16-3-19. Insurance.
1. Licensees and their employees are liable for injuries or damage
to property
[[Page 4649]]
resulting from their negligent or reckless acts and omissions, whether
in the operation of the licensed premises or in their violation of this
Title.
2. All manufacturers and retailers conducting on-sales shall
maintain insurance coverage insuring against liability under this
Section in an amount required by rules and regulations of the Board or,
if not provided therein, in the amount of at least $1,000,000.00 for
bodily injury to any one (1) person, $500,000.00 for any one (1)
accident or personal injury, and $100,000.00 for property damage.
Chapter 4
Enforcement and Violations
Section 16-4-1. Complaints.
1. Allegations of a violation of this Title shall be presented to
the Board by submitting a complaint with such allegation in writing to
the Chairperson of the Board or his or her designee.
2. A complaint may be submitted by any Board member or member of
the public who believes that a person has committed a violation of this
Title.
3. A complaint shall specify the person against whom the allegation
is being made and the conduct that is alleged to be in violation of
this Title.
4. Upon receipt of a complaint pursuant to this Section, the Board
shall review the complaint to determine if the allegations made fall
within the scope of this Title and whether, assuming the facts alleged
are true, said facts would constitute a violation of this Title.
5. If the Board determines that the allegations do not fall within
the scope of this Title or do not allege facts which, if true, would
constitute a violation of this Title, the Board shall provide written
notice to the complainant which shall state that:
a. The Board received the complaint;
b. The Board has reviewed the complaint in accordance with the
provisions of this Chapter;
c. The Board has determined that the allegations do not fall within
the scope of this Title and/or do not allege facts which would
constitute a violation of this Title; and
d. The matter is closed.
6. If the Board determines that the allegations fall within the
scope of this Title and allege facts which, if true, would constitute a
violation of this Title, the Board shall make or cause to be made a
preliminary investigation of the allegations in the complaint and, if
there is reason to believe the allegations in the complaint, the Board
shall issue a notice of violation as provided in this Chapter.
Section 16-4-2. Examination and Audit.
1. The Board may examine and audit any licensee for the purpose of
enforcing this Title.
2. In conducting an examination and audit pursuant to this Section,
the Board may:
a. Examine any books, records, papers, maps, documents, or other
data which may be relevant and material to the inquiry upon reasonable
notice:
i. During normal business hours;
ii. At any other time agreed to by the person having possession,
custody, or care for such data; or
iii. At any time pursuant to an order of the Tribal Court;
b. Summon the licensee, any officer, employee, or agent of the
licensee, or any person having possession, custody, or care of the
books of account containing entries relating to the business of the
licensee or required to perform the act, or any other person the Board
may deem proper, to appear before the Board at the time and place named
in the summons and to produce such books, records, papers, maps,
documents, or other data, and to give such testimony, under oath, as
may be relevant or material to the inquiry; and
c. Take testimony of any person, under oath, as may be relevant or
material to the inquiry.
Section 16-4-3. Notice of Violation.
1. If the Board has reason to believe that a violation of this
Title has occurred, the Board shall issue a notice of violation to all
persons accused of the violation.
2. A notice of violation shall state:
a. The specific provisions of this Title alleged to have been
violated;
b. The Board will consider any written response to the notice of
violation from the accused before determining whether to proceed with
the notice of violation; and
c. The accused may respond in writing to the notice of violation
within fourteen (14) calendar days of service of the notice.
3. If a notice of violation is not delivered to a person accused of
the violation personally at the time of issuance, it shall be served on
such person in the manner provided for service of a summons in the
rules of procedure governing civil actions in Tribal Court.
4. The accused shall have the right to respond to a notice of
violation within the time stated in the notice of violation. The
accused may include copies of any documents which the accused believes
support his or her position.
5. After the time has expired for the accused to respond to a
notice of violation, the Board shall consider any written response to
the notice of violation and determine how to proceed with the notice of
violation. Based on its review, the Board may:
a. Close the notice of violation if satisfied by the accused's
response; or
b. Conduct or cause to be conducted a thorough investigation of the
notice of violation.
6. If an investigation is conducted and such investigation reveals
that there is evidence to support that a violation of this Title
occurred, the Board shall determine an appropriate sanction for such
violation as provided in this Chapter, including civil fine, license
suspension or revocation, or both, and impose such sanction in
accordance with the provisions of this Chapter.
7. Written notice shall be provided of the Board's decision under
this Section.
Section 16-4-4. Formal Conference.
1. Within thirty (30) days of service of a decision of the Board, a
person subject of the decision may request a conference with the Board
to seek a review and redetermination of the decision.
2. A request for a conference shall:
a. Be made in writing to the Board or its designee;
b. Identify the decision of the Board;
c. Declare the redetermination sought; and
d. Include a complete statement of the facts relied on.
3. The Board, after an initial inquiry, may deny the request for a
conference and direct the person to proceed to an appeal in accordance
with this Chapter.
4. Upon request or its own initiative, the Board may stay any
action on its decision until a time not more than thirty (30) days
after issuance of a decision from the conference.
5. The Board may confer with the person by phone or in person, or
may require the submission of additional written material and will
issue a written decision. If the result sought is denied in whole or in
part, the decision will state the basis for the denial.
6. After the Board issues its decision, the person may appeal the
matters in dispute as provided in this Chapter. The person may request
a stay of the decision within ten (10) days after issuance of the
decision, provided the request is based upon an intention to request a
hearing.
7. If no appeal is made within the time allowed, the decision from
a formal conference is final and is not subject to any appeal before
the Board or in any court.
Section 16-4-5. Appeal.
1. Within thirty (30) days of service of a decision of the Board or
issuance of a decision from a formal conference, a party aggrieved by
the decision may file an appeal with the Board.
[[Page 4650]]
2. A request for appeal shall:
a. Be made in writing to the Board;
b. Identify the decision of the Board;
c. Identify any conference decision;
d. Declare the redetermination sought; and
e. Include a complete statement of the facts relied on.
3. Upon request or its own initiative, the Board may stay any
action on its decision until a time not more than thirty (30) days
after issuance of a decision from the appeal.
4. The Board shall conduct a hearing on the applicant's appeal and
take testimony and examine documentary evidence as necessary to
determine the appeal.
5. After hearing an appeal, the Board shall issue a decision. The
decision of the Board on an appeal under this Section shall be the
final decision of the Board, provided that the Board shall have been
deemed to have issued a final decision denying an appeal if the Board:
a. Fails to schedule and hold a hearing on the merits of an
otherwise valid appeal within sixty (60) days after receipt of a notice
of appeal; or
b. Fails to issue a written decision within thirty (30) days of the
hearing on the merits of the appeal.
6. The Board may permit or require, pursuant to the rules and
regulations of the Board, one or more levels of review by its employees
or delegates in addition and prior to appeal to the Board, provided
that the failure to proceed to a next required level of review shall
constitute a waiver of any further appeal or judicial review.
7. The failure to file an appeal pursuant to this Section shall not
prevent the aggrieved party from defending any action brought by the
Board against the party in Tribal Court.
Section 16-4-6. Judicial Review.
1. If a party is aggrieved by a final decision of the Board on
appeal, the party may challenge the decision by filing a petition
requesting judicial review of the Board's decision in the Tribal Court.
2. Judicial review of the Board's decision shall proceed in
accordance with the following:
a. The petition for judicial review shall be filed within thirty
(30) days of the issuance of the Board's decision;
b. No new or additional evidence may be introduced, but the matter
shall be heard on the record established before the Board;
c. No new or additional issues may be raised and only issues raised
before the Board may be heard regardless of the Board's authority to
hear the issue;
d. The Tribal Court shall uphold all factual findings of the Board
unless the Tribal Court concludes that such findings are not supported
by the substantive evidence in the record established before the Board;
e. In reviewing legal conclusions reached by the Board, the Tribal
Court shall give proper weight to the Board's interpretation of this
Title and any rules and regulations of the Board;
f. The Tribal Court shall affirm any determination by the Board
that the issuance, renewal, or modification of a license is not in the
best interests of the Tribe, its members, or the community as a whole
unless such determination is clearly arbitrary and capricious;
g. The Tribal Court may affirm, reverse, modify, or vacate and
remand the Board's final decision, but shall affirm the final decision
unless the Tribal Court concludes that the final decision of the Board
is:
i. Not supported by the evidence;
ii. Arbitrary or capricious;
iii. An abuse of discretion;
iv. Beyond the Board's authority; or
v. Otherwise contrary to the laws of the Tribe.
3. The Tribal Court shall dismiss any action brought against the
Board if the person filing the action has not exhausted all
administrative remedies before the Board, including an appeal to the
Board.
4. Notwithstanding anything to the contrary in this Title, the
Tribal Court shall not have jurisdiction or authority to award or order
the payment of damages or other monies or provide any remedy to a party
except for affirming, reversing, modifying or vacating and remanding
the decision of the Board.
5. The Tribal Court's jurisdiction to review a final decision of
the Board shall be exclusive and a final decision of the Board shall
not be subject to appeal, review, challenge, or other action in any
court or tribunal except as provided in this Section.
Section 16-4-7. Storage, Sale, and Manufacture Violations.
1. It shall be a violation of this Title:
a. To introduce, store, possess, sell, offer for sale, distribute,
transport, or manufacture liquor without first obtaining all necessary
licenses or in any manner not authorized by this Title;
b. To store, sell, offer for sale, distribute, transport, or
manufacture liquor in violation of any provision of this Title or the
terms of a license issued pursuant to this Title;
c. To deliver liquor to a manufacturer, wholesaler, or retailer at
any place other than the premises described in the license of such
manufacturer, wholesaler, or retailer;
d. For any manufacturer, wholesaler, or retailer to keep or store
any liquor at any place other than on the premises where such
manufacturer, wholesaler, or retailer is authorized to operate and
except as otherwise provided in this Title;
e. For any retailer to make or solicit orders for the delivery of
liquor from any person unless such person is registered as a salesman
in accordance with this Title;
f. For any wholesaler or manufacturer to take or solicit orders for
the delivery of liquor through any person unless such person is
registered as a salesman in accordance with this Title;
g. For any retailer to have any interest in the property or
business of a manufacturer or wholesaler, provided the following shall
not be an interest in the property or business of a retailer,
manufacturer, or wholesaler:
i. The Tribe's ownership or other interest in lands or property;
ii. The Tribe's leasing, assignment, licensing, or other
authorization of use or occupancy of lands or property or its status as
a landlord, lessor, assignor, or licensor, even if the rent, fees,
payment, or other consideration paid under any such lease, assignment,
license, or other authorization is based on revenues of the tenant,
lessee, assignee, licensee, or other user or occupant;
iii. The Tribe's ownership, operation, or establishment of a
division, instrumentality, economic enterprise, or other entity, even
if the Tribe has a right to or receives revenues or distributions from,
or assets of, such division, instrumentality, economic enterprise, or
other entity; or
iv. The Tribe's regulatory or other governmental authority over a
retailer, manufacturer, or wholesaler, including a lien or other
encumbrance resulting from such regulatory or governmental authority.
h. For any licensee to neglect or refuse to produce or submit for
inspection, examination, or audit any records lawfully requested by the
Board in accordance with this Title;
i. For a retailer to obtain liquor in unbroken packages except from
a manufacturer or wholesale licensee;
j. For a retailer or employee of a retailer to accept or give gifts
of liquor in connection with its business, except for the sampling of
liquor permitted in this Title;
k. For a manufacturer or retailer conducting on-sales to employ any
person for the purpose of soliciting the purchase of liquor within the
licensed premises on a percentage or commission basis;
l. For a manufacturer or retailer conducting on-sales to sell
liquor
[[Page 4651]]
without insurance coverage as required by this Title;
m. To knowingly employ a person under the age of majority in the
sale, distribution, or manufacture of liquor;
n. For a manufacturer conducting on-sales, a retailer, or an
employee of either to consume liquor or be intoxicated while selling
liquor on the licensed premises;
o. For a manufacturer conducting on-sales or a retailer to sell
liquor for anything other than cash, check, or credit or debit card
transaction or to extend credit to any person, organization, or entity
for the purchase of liquor;
p. For a retailer conducting off-sales or an employee of such a
retailer to sell or give liquor in broken or refilled packages;
q. For a retailer conducting off-sales or an employee of such a
retailer to permit the consumption of liquor on the retailer's
premises;
r. For a retailer conducting on-sales or an employee of such a
retailer to sell or give liquor for consumption off the retailer's
premises;
s. To knowingly sell liquor to a person under the age of twenty-one
(21) years;
t. For a manufacturer, retailer, or employee of either to sell or
give any liquor to any person or permit the consumption of liquor on
the licensed premises between the hours of two 2:00 a.m. and 6:00 a.m.,
provided that a manufacturer may sell or give liquor in unopened
packages to wholesale and retail licensees during any hour; or
u. For a manufacturer or retailer conducting on-sales or an
employee of either to sell or give liquor to an intoxicated person
within the licensed premises.
2. If an act is a violation of this Title when committed by a
licensee, retailer, wholesaler, manufacturer, or entity, the licensee,
retailer, wholesaler, manufacturer, or entity is also liable if the act
is committed by one of its employees or agents.
3. In addition to any other consequences for a violation of this
Title, including suspension or revocation of a license, a person who
commits a violation under this Section shall be subject to a civil fine
in an amount provided by rules and regulations of the Board or, if not
provided therein, an amount up to one thousand dollars ($1,000) per
occurrence, which may be imposed by the Board pursuant to a notice of
violation and thereafter enforced and collected through a civil cause
of action brought by the Board on behalf of the Tribe in the Tribal
Court.
Section 16-4-8. Violations by Public.
1. It shall be a violation of this Title for any person:
a. Who is under the age of twenty-one (21) years, to:
i. Purchase or attempt to purchase liquor except at the direction
and under the supervision of the Board, its designee, or other law
enforcement official for the purpose of enforcing this Title or other
applicable law governing liquor on Tribal lands;
ii. Consume or possess liquor except for possession as a part of
employment to the extent permitted under this Title and any applicable
state or federal law, consumption or possession as part of a bona fide
religious ceremony, or consumption or possession in his or her
permanent place of residence; or
iii. Attempt to purchase liquor through the use of false or altered
identification which purports to show the person to be over the age of
twenty-one (21) years;
b. To consume liquor from a broken package in a public place, other
than licensed premises specified in a manufacturer license, a retailer
license which allows on-sales, or a special event license; or
c. To transfer in any manner an identification of age to a person
under the age of twenty-one (21) years for the purpose of permitting
such person to obtain liquor, provided that corroborative testimony of
a witness other than the underage person shall be a requirement of
finding a violation of this subsection.
2. In addition to any other consequences for a violation of this
Title, a person who commits a violation of this Section shall be
subject to a civil fine in an amount provided by rules and regulations
of the Board or, if not provided therein, an amount up to one hundred
dollars ($100) per occurrence, which may be imposed by the Board
pursuant to a notice of violation and thereafter enforced and collected
through a civil cause of action brought by the Board on behalf of the
Tribe in the Tribal Court.
Section 16-4-9. Other Violations.
1. Any act or transaction which does not comply with any provision
of this Title or any rule, regulation, order, or decision of the Board
shall be a violation of this Title and deemed an act or transaction not
in conformity with this Title.
2. In addition to any other consequences for a violation of this
Title, including suspension or revocation of a license, a person who
commits a violation under this Section shall be subject to a civil fine
in an amount provided by rules and regulations of the Board or, if not
provided therein, an amount up to five hundred dollars ($500) per
occurrence, which may be imposed by the Board pursuant to a notice of
violation and thereafter enforced and collected through a civil cause
of action brought by the Board on behalf of the Tribe in the Tribal
Court.
Section 16-4-10. Reporting of Violations. The Board may report any
violation of this Title to the appropriate officials of other
jurisdictions and request an investigation and, if appropriate,
prosecution of such violation as a violation of the laws of that
jurisdiction, including the criminal laws of that jurisdiction.
Section 16-4-11. Revocation and Suspension of License.
1. The Board may summarily suspend for up to fifteen (15) days the
license of any person upon a finding of imminent danger to the public
welfare caused by the licensee or any act or omission of the licensee.
2. The Board, after at least ten (10) days notice and a full
hearing, may revoke the license of any person for any of the following:
a. Repeatedly violating or permitting the violation of any
provision of this Title or the rules and regulations of the Board;
b. Failure or refusal to pay all taxes imposed on the sale,
distribution, or manufacture of liquor under the laws of the Tribe;
c. Misrepresentation of a material fact in the licensee's
application for a license or any renewal thereof;
d. The occurrence of any event which would have made the licensee
ineligible for a license if the event had occurred prior to the
issuance of the license;
e. Failure to maintain insurance coverage as required by this Title
for a continuous period of more than thirty (30) days;
f. Imminent danger to the public welfare caused by the licensee or
any act or omission of the licensee which has not been corrected within
a reasonable time after notice from the Board; or
g. Failure of the licensee to correct an unhealthy or unsafe
condition on the licensed premises within a reasonable time after
notice from the Board.
3. The Board may suspend the license of any licensee for a period
not exceeding one-hundred eighty (180) days as an alternative to
revoking the license if the Board is satisfied that the grounds giving
rise to the revocation or the circumstances thereof are such that a
suspension of the license would be adequate.
4. Any suspension of a license pursuant to this Section shall be
[[Page 4652]]
effective twenty-four (24) hours after service of notice thereof upon
the licensee. During any period of suspension of a license, the
licensee shall have and exercise no rights or privileges whatsoever
under the license.
5. After revocation of a license, the licensee's rights and
privileges under such license shall terminate twenty-four (24) hours
after service of notice thereof upon the licensee. Any licensee whose
license is revoked shall not be granted any license under the
provisions of this Title for a period of two (2) years from the date of
revocation.
Section 16-4-12. Enjoining Business. In addition to any other
remedies available to it, the Board may bring, in the name of the
Tribe, an action in any appropriate court to enjoin the operation of
any unlicensed business, activity, or function when this Title requires
a license for the conduct of such business, activity, or function or of
any other unlawful business, activity, or function. The enjoining of
any person pursuant to this Section shall be deemed an exclusion of the
person pursuant to the Tribe's power to exclude and other inherent
powers and authority of the Tribe.
Section 16-4-13. Seizure of Contraband.
1. In addition to any other remedies available to it, the Board,
pursuant to an order issued by the Board, may seize any liquor
possessed contrary to the terms of this Title, including liquor
possessed for manufacture or sale, as contraband.
2. Upon seizure of any liquor pursuant to this Section, the Board
shall inventory all items seized and leave a written copy of such
inventory with the person from whom it was seized or, if such person
cannot be found, posted at the place from which the liquor was seized.
3. Any person who claims an ownership interest, right of possession
to, or other interest in liquor seized pursuant to this Section may
request a formal conference regarding or file an appeal of the Board's
seizure of such liquor in accordance with the provisions of this
Chapter governing appeals before the Board.
4. Upon the expiration or conclusion of any appeal permitted under
this Chapter of seizure of liquor pursuant to this Section, including
permitted judicial review, such liquor shall be forfeited and all title
and ownership interest in such liquor shall vest in the Tribe unless an
appeal or judicial review returns such liquor to the person from whom
it was seized or other person entitled thereto.
5. If necessary, the Board may file a complaint for forfeiture
against any liquor seized pursuant to this Section in the Tribal Court.
Upon the Board showing by a preponderance of the evidence that seized
liquor is contraband under this Title, the Tribal Court shall enter an
order that such liquor is forfeited and that all title and ownership
interest in such liquor is vested in the Tribe.
6. Any liquor seized pursuant to this Section to which title has
vested in the Tribe that is no longer required for evidence may be sold
for the benefit of the Tribe or destroyed under the supervision of the
Board.
Section 16-4-14. Sovereign Immunity in Enforcement.
1. Except for valid judicial review of a decision of the Board as
provided in this Title, nothing in this Title shall be construed as
limiting, waiving, or abrogating the sovereignty or the sovereign
immunity of the Board or any of its agents, officers, officials,
personnel, or employees.
2. An action brought or taken by the Board, including without
limitation the bringing of suit for the collection of fines or
enjoining a business, activity, or function, shall not constitute a
waiver of sovereign immunity as to any counterclaim, regardless of
whether the asserted counterclaim arises out of the same transaction or
occurrence or in any other respect.
3. No economic enterprise of the Tribe may claim sovereign immunity
as a defense to any action brought or taken by the Board, including a
suit for the collection of fines or the enjoining of a business,
activity, or function of such economic enterprise and, to the extent
necessary, the Tribe waives the sovereign immunity of its economic
enterprises in any action brought or taken by the Board against such
economic enterprises.
[FR Doc. 2022-01787 Filed 1-27-22; 8:45 am]
BILLING CODE 4337-15-P
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</html>Indexed from Federal Register on January 28, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.