Notice2024-02351
Winnemucca Indian Colony Liquor 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
February 6, 2024
Effective
February 6, 2024
Issuing agencies
Interior DepartmentIndian Affairs Bureau
Abstract
This notice publishes the liquor ordinance of the Winnemucca Indian Colony. The liquor ordinance is to regulate and control the possession, sale, manufacture, and distribution of alcohol in conformity with the laws of the State of Nevada for the purpose of generating new Tribal revenues. Enactment of this ordinance will help provide a source of revenue to strengthen Tribal government, provide for the economic viability of Tribal enterprises, and improve delivery of Tribal government services.
Full Text
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<title>Federal Register, Volume 89 Issue 25 (Tuesday, February 6, 2024)</title>
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[Federal Register Volume 89, Number 25 (Tuesday, February 6, 2024)]
[Notices]
[Pages 8238-8242]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-02351]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[245A2100DD/AAKC001030/A0A501010.999900]
Winnemucca Indian Colony Liquor Ordinance
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
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SUMMARY: This notice publishes the liquor ordinance of the Winnemucca
Indian Colony. The liquor ordinance is to regulate and control the
possession, sale, manufacture, and distribution of alcohol in
conformity with the laws of the State of Nevada for the purpose of
generating new Tribal revenues. Enactment of this ordinance will help
provide a source of revenue to strengthen Tribal government, provide
for the economic viability of Tribal enterprises, and improve delivery
of Tribal government services.
DATES: This code shall become effective February 6, 2024.
FOR FURTHER INFORMATION CONTACT: Ms. Natalie Wabaunsee, Acting Tribal
Government Officer, Western Regional Office, Bureau of Indian Affairs,
2600 N. Central Avenue, 4th Floor Mailroom, Phoenix, AZ 85001,
Telephone: (602) 647-5271 or Oliver Whaley, Director, Office of
Regulatory Affairs, (202) 738-6065.
SUPPLEMENTARY INFORMATION: Pursuant to the Act of August 15, 1953, Pub.
Law 83-277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme
Court in Rice v. Rehner, 463 U.S. 713 (1983), the Secretary of the
Interior shall certify and publish in the Federal Register notice of
adopted liquor ordinances for the purpose of regulating liquor
transactions in Indian country. The Winnemucca Indian Colony Council
duly adopted the Winnemucca Indian Colony Liquor Ordinance on March 14,
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 Winnemucca Indian Colony Council duly
adopted by Resolution of the Colony Council of the
[[Page 8239]]
Winnemucca Indian Colony of Nevada the Winnemucca Indian Colony Liquor
Ordinance by Resolution No. 2023-03-013 dated March 14, 2023.
Bryan Newland,
Assistant Secretary-Indian Affairs.
The Winnemucca Indian Colony Liquor Ordinance shall read as
follows:
General Provisions
Section 26.001 Title. This ordinance shall be known as the
Winnemucca Indian Colony Liquor Ordinance.
Section 26.002 Authority. This Ordinance is adopted by the
Winnemucca Indian Colony Council pursuant to the provisions of 18
U.S.C.A. Sec. 1161 and Article VI, Section 1(e), (g) (h), (i) and (j)
of the Constitution of the Winnemucca Indian Colony.
Section 26.003 Policies.
1. The introduction, possession and sale of liquor on Indian
reservations have always been clearly recognized as matters of special
concern to Indian tribes and to the United States Government. The
control of liquor on reservations remains exclusively subject to their
legislative enactments.
2. Federal law currently prohibits introduction of liquor into
Indian country, 18 U.S.C.A. Sec. 1155, leaving tribes the decision
regarding when and to what extent liquor transactions shall be
permitted. 18 U.S.C.A. Sec. 1161
3. Present day circumstances make a complete ban on liquor within
the Winnemucca Indian Colony ineffective and unrealistic. However, a
need still exists for strict regulation and control over liquor
transactions within the Winnemucca Indian Colony because of the many
potential problems associated with the unregulated or inadequately
regulated sale, possession and consumption of liquor. The Council finds
that exclusive tribal control and regulation of liquor is necessary to
achieve maximum economic benefit to the Colony to protect the health
and welfare of Colony members, and to address specific tribal concerns
relating to alcohol use on the Colony.
4. The enactment of a tribal ordinance governing liquor sales on
the Colony will increase the ability of the tribal government to
control Colony liquor distribution and possession, and at the same time
will provide an important source of revenue for the continued operation
of the tribal government and delivery of tribal governmental services.
5. In order to provide for increased tribal control over liquor
distribution and possession on the Colony and to provide for an
urgently needed additional revenue source, the Council of the
Winnemucca Indian Colony hereby adopts this Liquor Ordinance.
Winnemucca Indian Colony Liquor Commission
Section 26.100 Establishment. There is hereby established a
Winnemucca Indian Colony Liquor Commission. The members of the
Winnemucca Indian Colony Council shall serve as the Winnemucca Indian
Colony Liquor Commission.
Section 26.101 Powers. The Winnemucca Indian Colony Liquor
Commission shall have the following powers:
1. Administer this Ordinance by exercising general control,
management and supervision of all liquor sales, places of sale and
sales outlets, as well as exercising all powers necessary to accomplish
the purposes of this Ordinance.
2. Adopt and enforce rules and regulations in furtherance of the
purposes of this Ordinance and the performance of administrative
functions.
3. Employ such persons as reasonably necessary to allow the
Commission to perform its duties under this Ordinance.
4. Bring suit in the appropriate court to enforce the provisions of
this Ordinance.
5. The Winnemucca Indian Colony Liquor Commission shall conduct
business pursuant to this Ordinance at regular of special Council
meetings and shall keep records of all proceedings of the Winnemucca
Indian Colony Liquor Commission.
6. Any person Subject to the provisions of this Ordinance who is
injured or aggrieved by any final regulations issued by the Winnemucca
Indian Colony Liquor Commission may petition the Commission for a
revision of the regulations.
7. The Winnemucca Indian Colony Council shall have the authority to
establish by separate Ordinance the Winnemucca Indian Colony Liquor
Agency. This agency, like Winnemucca Indian Colony Indian Tribal
Enterprises, shall be constituted as a separate agency and department
of the Winnemucca Indian Colony with its own charter. The purpose of
the Winnemucca Indian Colony Liquor Agency shall be to purchase and
sell liquor for the benefit of the Winnemucca Indian Colony.
8. The Winnemucca Indian Colony Council may form a corporation or a
subordinate tribal entity, or a tribal enterprise, to operate off-sale
or packaged sale of intoxicating beverages, under such license or
licenses as may be required by law.
Appeals
Section 26.200 Sovereign Immunity Not Waived. Nothing in this
Liquor Ordinance is intended or shall be construed as a waiver of the
sovereign immunity of the Winnemucca Indian Colony. The Winnemucca
Indian Colony does not consent to be sued in any court with respect to
this Ordinance. No employee or agent of the Winnemucca Indian Colony or
of the Winnemucca Indian Colony Liquor Commission shall be authorized,
nor shall he attempt to waive the sovereign immunity of the Tribe.
Section 26.201 The Challenges to the Validity of This Liquor
Ordinance. All challenges to the validity of this Liquor Ordinance
either generally, or as applied to any person, shall be presented to
the Winnemucca Indian Colony Council. The decision of the Council on
the matter is final.
Section 26.202 No Other Actions Created. No private right of action
by any person or group of persons, either directly against any person
subject to this Ordinance, or indirectly against any Winnemucca Indian
Colony Official or body to compel the enforcement of the provisions of
this Ordinance shall be deemed created by this Ordinance, or be within
the subject matter jurisdiction of the Winnemucca Indian Colony Tribal
Court or any other court. No injunction or restraining order shall
issue from the Winnemucca Indian Colony Tribal Court or any other court
to enforce the provision of this Ordinance.
Section 26.203 Severability. If any provision of this Ordinance or
its application to any person or circumstances is held invalid by a
final judgment of a court of competent jurisdiction, the invalidity
shall not affect other provisions or applications which can be given
effect without the invalid provision or application and to this end the
provisions of this Ordinance are severable.
Definitions
Section 26.300 Definitions. As used in this Ordinance, the
following words shall have the following meanings unless the context
clearly requires otherwise.
Section 26.301 ``Alcohol'' defined. ``Alcohol'' is that substance
known as ethyl alcohol, hydrated oxide of ethyl, or spirit of wine,
which is commonly produced by the fermentation or distillation of
grain, starch, molasses, or sugar, or other substances including all
dilutions and mixtures of this substance.
Section 26.302 ``Beer'' defined. ``Beer'' means any beverage
obtained by the alcoholic fermentation of any infusion or decoction of
pure hops, or pure extract of hops and pure barley malt or other
wholesome grain or cereal
[[Page 8240]]
in pure water containing not more than 4% of alcohol by volume. For the
purpose of this title, any such beverage, including ale, stout and
porter, containing more than 4% of alcohol by weight shall be referred
to as ``strong beer.''
Section 26.303 ``Liquor'' defined. ``Liquor'' includes the four
varieties of liquor herein defined (alcohol, spirits, wine, and beer)
and all fermented spiritous, vinous, or malt liquor or combinations
thereof, and mixed liquor, a part of which is fermented, spiritous,
vinous, or malt liquor, or otherwise intoxicating; and every liquid or
solid or semi-solid or other substance, patented or not, containing
alcohol, spirits, wine, or beer, and all drinks or drinkable liquids
and all preparations or mixtures capable of human consumption and any
liquid, semi-solid, solid substance, which contains more than 1% of
alcohol by weight shall be conclusively deemed to be intoxicating.
Section 26.304 ``Malt Liquor'' defined. ``Malt Liquor'' means beer,
strong beer, ale, stout and porter.
Section 26.305 ``Sale'' and ``Sell'' defined. ``Sale'' and ``Sell''
include exchange, barter and traffic, and also include the selling or
supplying or distributing by any means whatsoever of liquor or of any
liquid known or described as beer, or by any name whatsoever commonly
used to describe malt or brewed liquor or wine by any person to any
person.
Section 26.306 ``Spirits'' defined. ``Spirits'' means any beverage
which contains alcohol obtained by distillation, including wines
exceeding 17% of alcohol by weight.
Section 26.307 ``Wine'' defined. ``Wine'' means any alcohol
beverage obtained by fermentation of fruits (grapes, berries, apples,
etc.,) or other agricultural products containing sugar to which any
saccharine substances may have been added before, during or after
fermentation and containing not more than 17% of alcohol by weight,
including sweet wines fortified with wine spirits such as port, sherry,
muscatel and angelica not exceeding 17% of alcohol by weight.
Licensing
Section 26.400 Tribal License Required. Any person desiring to sell
liquor within the boundaries of the Winnemucca Indian Colony must first
obtain a license from the Winnemucca Indian Colony Liquor Commission.
Every license issued under this Ordinance shall be subject to all
conditions and restrictions imposed by this Ordinance and by the
regulations in force from time to time.
Section 26.401 Application for License. Any person may apply for a
Winnemucca Indian Colony Liquor License. Application shall be made on
an approved form provided by the Winnemucca Indian Colony Liquor
Commission. The application shall be filed with the Secretary of the
Winnemucca Indian Colony Council. The application shall show the
following:
1. Proof satisfactory that the applicant is a person of good moral
character and reputation.
2. Proof satisfactory that the applicant is financially
responsible.
3. Proof satisfactory that the applicant is over 21 years of age.
4. The location and description of the premises where the sales
will take place.
5. That the applicant agrees to accept and abide by the conditions
of the Winnemucca Indian Colony Liquor License as set forth in Section
26.402 of this Ordinance and any other Ordinance or Resolution of the
Winnemucca Indian Colony Council.
6. That a fee as set by resolution of the Winnemucca Indian Colony
Council accompanies the application.
Section 26.402 Conditions of Winnemucca Indian Colony Liquor
License. Any Winnemucca Indian Colony Liquor License issued under this
Ordinance shall be subject to the following conditions:
1. Licenses shall be issued for one calendar year or the portion
remaining thereof at the time the license is issued, starting with
2023.
2. If the terms of the license or location of the business so
require, the licensee shall at his own expense, engage some suitable
person who qualifies as eligible for employment as a law enforcement
officer to maintain law and order in and about the premises where
alcohol is sold.
3. The licensee shall at all times maintain an orderly, clean and
neat establishment both inside and outside the premise.
4. All acts and transactions relating to the operating standards of
the establishment licensed under the authority of the Winnemucca Indian
Colony Liquor License shall be in conformity with the operating laws of
the State of Nevada to the extent required by 18 U.S.C.A. Sec. 1161.
More stringent standards of operation may be imposed upon 30 days-
notice to licensees by duly enacted ordinances of the Council.
5. The licensed premises shall be subject to inspection during
reasonable business hours by members of the Winnemucca Indian Colony
Liquor Commission or authorized representatives in order to ensure that
the licensee is complying with the terms of tribal ordinances and the
conditions of the license.
Section 26.403 Consideration of Application. The Winnemucca Indian
Colony Liquor Commission may, within its sole discretion, refuse to
issue a license. The Commission may, within its sole discretion and
subject to this Ordinance, issue a license. For purposes of considering
an application, the Commission may cause an inspection of the premises
to be made and may inquire into all matters in connection with the
construction and operation of the premises. Before the Commission shall
issue a license, it shall give due consideration to the location of the
business to be conducted under such license.
Section 26.404 Posting. Every licensee shall post and keep its
license in a conspicuous place on the premises.
Section 26.405 Fees. License applications must be accompanied by an
annual fee paid in advance. The Winnemucca Indian Colony Liquor
Commission shall promulgate regulations establishing the annual fee for
a Winnemucca Indian Colony Liquor License.
Section 26.406 Expiration. Unless sooner cancelled, every license
shall expire at midnight on the 31st day of December of the year in
which it was issued.
Section 26.407 Suspension and Cancellation. The Winnemucca Indian
Colony Liquor Commission may suspend or cancel any license for
violation of this Ordinance. Upon suspension of cancellation, all
rights of the licensee to keep or sell liquor thereunder shall be
suspended or terminated as the case may be. At least ten days prior to
the cancellation or suspension, the Commission shall provide notice to
the licensee of its intent to cancel or suspend the license. The
licensee shall have the right prior to the cancellation or suspension
date, to apply to the Winnemucca Indian Colony Council for a hearing to
determine whether the license was rightly suspended or cancelled. The
decision of the Winnemucca Indian Colony Council on the matter shall be
final. Upon suspension or cancellation of the license, the licensee
shall forthwith deliver up the license to the Winnemucca Indian Colony
Council. Where the license has been suspended only, the Council shall
return the license to the licensee at the expiration or termination of
the period of suspension.
[[Page 8241]]
Illegal Activities
Section 26.500 Declaration. No person shall engage in the
manufacture or sale of liquor within the boundaries of the Winnemucca
Indian Colony except in conformity with this Ordinance. No person shall
engage in the sale or manufacture of liquor within the boundaries of
the Winnemucca Indian Colony unless duly licensed by the Tribe.
Section 26.501 Illegal Sale of Liquor by Drink or Bottle. It shall
be a violation of this Ordinance for any person to sell by the drink or
bottle any liquor, except as otherwise provided in this Ordinance.
Section 26.502 Illegal Transportation, Still or Sale without
Permit. It shall be violation of this Ordinance for any person to sell
or offer for sale or transport in any manner, any liquor in violation
of this Ordinance or to operate or have in his possession without a
permit any mash capable of being distilled into liquor.
Section 26.503 Illegal Purchase of Liquor. It shall be a violation
of this Ordinance for any person within the boundaries of the
Winnemucca Indian Colony to buy liquor from any person other than at a
store having a Winnemucca Indian Colony Liquor License.
Section 26.504 Illegal Possession of Liquor, Intent to Sell. It
shall be a violation of this Ordinance for any person to keep or
possess liquor upon his person or in any place, or on premises
conducted or maintained by him as a principal or agent, with the intent
to sell it contrary to the provisions of this Ordinance.
Section 26.505 Sales to Persons Apparently Intoxicated. It shall be
a violation of this Ordinance for any person to sell liquor to a person
apparently under the influence of liquor.
Section 26.506 Sale to Minors. It shall be unlawful:
1. For a licensee or any other person to sell, deliver, give or
otherwise furnish liquor to any person under the age of 21 years, or
leave or deposit any such liquor in any place with the intent that the
same shall be procured by any person under the age of 21 years, or for
a person under the age of 21 years to buy, receive, have in his
possession, or consume liquor. It shall be the responsibility of the
licensee or his employee and of anyone acting in his behalf to
ascertain that the purchaser of any liquor, either by the drink or by
the bottle, or any other container is 21 years of age or older.
2. For a licensee to employ a person under the age of 21 years to
manufacture, sell or dispose of liquor.
3. For a licensee to employ a person under the age of 21 years in
any capacity connected with the handling of liquor.
4. For a person under 21 years of age to offer or present to a
licensee, employee or other person a fraudulent or false certificate of
birth or other written evidence of age which is not actually his own,
or to otherwise misrepresent his age for the purpose of inducing a
licensee or employee to give, sell, serve or furnish liquor contrary to
law.
5. To influence or attempt to influence the sale, giving or serving
of liquor to any person under 21 years of age by misrepresenting the
age of such person or to order, request, receive or procure liquor from
any licensee, employee or other person for the purpose of selling,
giving, or serving it to a person under 21 years of age.
6. For any person under the age of 21 years to buy, sell, give,
possess, deliver, serve, or to be employed for any of the foregoing or
to consume any liquor within the exterior boundaries of the Winnemucca
Indian Colony.
Section 26.507 Identification--Proof of Minimum Age. Where there
may be a question of a person's right to purchase liquor by reason of
his or her age, such person shall be required to present any one of the
following officially issued cards of identification which shows correct
age and bears his or her signature and photograph:
(1) Liquor Control Authority Card of Identification.
(2) Driver's License of any State.
(3) United States Active Duty Military Identification.
(4) Passport.
(5) Tribal Identification or Enrollment Card.
Section 26.508 Defense to Action for Sale to Minors. It shall be a
defense to a suit for serving liquor to a person under 21 years of age
if such a person has presented a card of identification as set forth in
Section 26.507 and the licensee of his employee took reasonable care to
verify the card of identification.
Section 26.509 Certain Illegal Activity. The following are
prohibitions against certain conduct by individuals who consume
alcohol:
1. It shall be unlawful to use or consume any alcoholic beverages
in a motor vehicle while such vehicle is being driven.
2. It shall be unlawful to possess any open bottle, can, package,
or container of alcoholic beverage in the passenger compartment of a
motor vehicle when such vehicle is being driven.
3. It shall be unlawful for any person actually under the influence
of alcoholic beverages to possess, use or consume alcoholic beverages.
4. It shall be unlawful for any person to furnish any alcoholic
beverage to any person under the age of twenty-one (21) or to leave or
to deposit any alcoholic beverages with the intent that the alcoholic
beverages shall be procured by any person under the age of twenty-one
(21) years.
5. Any Indian who violates any of the provisions of this ordinance
shall be deemed guilty of an offense and upon conviction thereof shall
be punished by a fine of not more than $50 or by imprisonment of not
more than ten (10) days or both such fine and imprisonment: Provided,
however, that any person under the age of eighteen (18) years may, in
the discretion of the judge, be treated as a juvenile and have the
charge(s) disposed of pursuant to applicable juvenile law and
procedures.
Penalties
Section 26.600 Civil Fine. Any person or entity selling, bartering
or manufacturing liquor without a tribal license or otherwise violating
this Ordinance shall be subject to a civil fine of not more than
$500.00 for each violation. The Winnemucca Indian Colony Council may
adopt by resolution a schedule of lesser fines for each type of
violation taking into account its seriousness and the threat it may
pose to the general health and welfare of tribal members.
Section 26.601 Criminal Penalties. Any person or entity subject to
criminal prosecution by the Winnemucca Indian Colony who sells, barters
or manufactures liquor without a Winnemucca Indian Colony Liquor
License shall be subject to a fine of not more than $500.00 and/or six
months imprisonment for each separate violation at the discretion of
the Tribal Court and pursuant to all appropriate provisions of the Law
and Order Code of the Winnemucca Indian Colony. The penalties provided
herein shall be in addition to any criminal penalties which may be
imposed by the provisions of the Winnemucca Indian Colony Law and Order
Code.
1. In no event shall the same person or entity be subject to both
civil and criminal sanctions simultaneously.
2. The Federal Indian liquor laws remain applicable to any act or
transaction which is not authorized by this Ordinance and violators of
this Ordinance may be subject to federal
[[Page 8242]]
prosecution as well as legal action in accordance with Tribal Law.
Section 26.602 Illegal Items Declared Contraband. All liquor within
the Colony held, owned or possessed by any person or liquor outlet
operating in violation of this Ordinance is hereby declared to be
contraband and subject to forfeiture to the Tribe. Upon application of
the Tribe, the Tribal Court Judge shall issue an order directing the
appropriate law enforcement office to seize contraband liquor within
the Winnemucca Indian Colony and deliver it to the Winnemucca Indian
Colony Council. A copy of the Court Order shall be delivered to the
person from whom the property was seized.
1. Within two weeks following the seizure of the contraband, a
hearing shall be held in Tribal Court at which time the owner or
operator of the contraband shall be given an opportunity to present
evidence in defense of his or her activities.
2. Adequate notice of the hearing shall be given to the person from
whom the property was seized, if known. If the person is unknown,
notice of the hearing shall be posted at the place where the contraband
was seized and at some other public place. The notice shall describe
the property seized and the time, place and cause of seizure, and give
the name and place of residence, if known, of the person from whom the
property was seized.
3. If, upon the hearing, the evidence warrants or no person appears
as the claimant, the Tribal Court shall thereupon enter a judgment of
forfeiture and order such articles turned over to the Winnemucca Indian
Colony Council for disposition.
Section 26.603 Injunctive Relief. The Tribal Court may, in addition
to other penalties set forth in this Ordinance, grant such other relief
as is necessary and proper to enforce this Ordinance including but not
limited to injunctive relief against acts in violation of this
Ordinance.
Section 26.604 Exclusion. Any person not a member of the Winnemucca
Indian Colony who shall be found in violation of this Ordinance shall
be subject to exclusion from the Winnemucca Indian Colony at the
discretion of the Tribal Council.
Miscellaneous Provisions
Section 26.700 Jurisdiction. The jurisdiction of this ordinance
shall extend to all activities conducted within the exterior boundaries
of the Winnemucca Indian Colony except activities conducted on rights
of way through the Winnemucca Indian Colony. Nothing in this Ordinance
shall be construed to require or authorize the criminal trial and
punishment by the Winnemucca Indian Colony Tribal Court of any non-
Indian except to the extent allowed by any applicable present or future
act of Congress or any applicable decision of a United States Federal
Court.
Section 26.701 Taxation. The Winnemucca Indian Colony Council shall
have the authority, through separate ordinance, to levy and collect a
tax on each retail sale of liquor within the exterior boundaries of the
Winnemucca Indian Colony. Any tax imposed by the Council shall apply to
all retail sales of liquor on the Colony.
Section 26.702 Application of 18 U.S.C.A. Sec. 1161. All liquor
transactions within the Winnemucca Indian Colony shall conform to this
Ordinance and to the laws of the State of Nevada to the extent required
by 18 U.S.C.A. Sec. 1161.
Section 26.703 Amendments. All provisions of this Ordinance are
subject to proper revision, repeal or amendment in accordance with the
Constitution and By-Laws of the Winnemucca Indian Colony.
Section 26.704 Effective Date. This Ordinance shall be effective on
such date as the Secretary of the Interior certifies this Ordinance and
publishes the same in the Federal Register.
[FR Doc. 2024-02351 Filed 2-5-24; 8:45 am]
BILLING CODE 4337-15-P
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</html>Indexed from Federal Register on February 6, 2024.
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.