[Federal Register: January 19, 2007 (Volume 72, Number 12)]
[Notices]
[Page 2545-2550]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19ja07-79]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
The Pokagon Band of Potawatomi Indians of Michigan Liquor Control
Ordinance
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
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SUMMARY: This notice publishes the Liquor Control Ordinance of the
Pokagon Band of Potawatomi Indians of Michigan (Tribe). The Ordinance
regulates and controls the possession, sale and consumption of liquor
within the Pokagon Band of Potawatomi Indians Reservation. This
reservation is described as ``all lands, the title to which is held in
trust by the United States for the benefit of the Pokagon Band of
Potawatomi Indians; and * * * all lands * * * part of the Tribe's
reservation.'' This ordinance, however, applies only to the Tribe's
reservation lands within the State of Michigan. This Ordinance allows
for possession and sale of alcoholic beverages within the Pokagon Band
of Potawatomi Indians Reservation, and increases the ability of the
tribal government to control the Tribe's liquor distribution and
possession. At the same time it will provide an important source of
revenue for the continued operation and strengthening of the tribal
government and the delivery of tribal services.
DATES: Effective Date: This Ordinance is effective on January 19, 2007.
FOR FURTHER INFORMATION CONTACT: David Christensen, Regional Tribal
Operations Officer, Bureau of Indian Affairs, Midwest Regional Office,
Bishop Henry Whipple Federal Building, One Federal Drive, Room 550, Ft.
Snelling, MN 55111, Telephone: (612) 725-4554, Fax 612-713-4401; or
Ralph Gonzales, Office of Indian Services, 1849 C Street NW., Mail Stop
4513-MIB, Washington, DC 20240, Telephone: (202) 513-7629.
SUPPLEMENTARY INFORMATION: Pursuant to the Act of August 15, 1953,
Public Law 83-277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the
Supreme Court in Rice v. Rehner, 463 U.S. 713 (1983), the Secretary of
the Interior shall certify and publish in the Federal Register notice
of adopted liquor ordinances for the purpose of regulating liquor
transactions in Indian country. The Pokagon Band of Potawatomi Indians
Tribal Council adopted its Liquor Ordinance by Resolution No. 06-09-09-
12 on September 9, 2006. The purpose of this Ordinance is to govern the
sale, possession and distribution of alcohol within Tribal lands. The
Pokagon Band of Potawatomi Indians does not have an existing Liquor
Control Ordinance.
This notice is published in accordance with the authority delegated
by the Secretary of the Interior to the Principal Deputy Assistant
Secretary--Indian Affairs. I certify that this Liquor Ordinance of the
Pokagon Band of Potawatomi Indians was duly adopted by the Pokagon Band
of Potawatomi Indians Tribal Council on September 9, 2006.
Dated: January 12, 2007.
Michael D. Olsen,
Principal Deputy Assistant Secretary--Indian Affairs.
The Pokagon Band of Potawatomi Indians of Michigan Liquor Control
Ordinance reads as follows:
Pokagon Band of Potawatomi Indians of Michigan and Indiana Liquor
Control Code
Section 1 Legislative Findings. The Pokagon Band Tribal Council
hereby finds as follows:
(a) The importation, distribution, manufacture, and sale of
alcoholic liquor for commercial purposes on the Tribe's Reservation is
a matter of special concern to the Tribe.
(b) Federal law as embodied in 18 U.S.C. 1161 provides that certain
sections of the United States Code, commonly referred to as Federal
Indian Liquor Laws, shall not apply to any act or transaction within
any area of Indian country, provided such act or transaction is in
conformity with both the laws of the state in which such act or
transaction occurs, and with an act duly adopted by the tribe having
jurisdiction over such area of Indian country.
Section 2 Declaration of Policy.
(a) The Council hereby declares that the policy of the Tribe is to
eliminate the problems associated with unlicensed, unregulated, and
unlawful importation, distribution, manufacture, and sale of alcoholic
liquor for commercial purposes on the Reservation, and to promote
temperance in the use and consumption of alcoholic liquor by
establishing and enforcing Tribal regulation over such activities on
the Reservation.
(b) The importation, distribution, manufacture, and sale of
alcoholic liquor for commercial purposes on the Reservation shall be
lawful, provided that such activity is conducted by the Tribe or by an
authorized Tribal enterprise, and is in conformity with this Code. Such
conditions are necessary to increase the Tribe's ability to control and
regulate the distribution, sale, and possession of alcoholic liquor,
while at the same time provide an important and necessary source of
revenue for continued operation of the Tribal government and delivery
of Tribal governmental services.
Section 3 Authority. The Council has authority to adopt this Liquor
Control Code (``Code'') pursuant to the authority and powers vested in
it by Article IX, subsections 2 (a), 2 (e), 2 (i), and 2 (j), of the
Tribal Constitution and the inherent authority of the Band as a
sovereign tribal nation to provide for the health, safety, and welfare
of the Pokagon Band. Further, the Supreme Court held in United States
v. Mazurie, 419 U.S. 544 (1975), that Congress through 18 U.S.C. 1161
delegated to Indian tribes authority to control the introduction,
distribution, and consumption of alcoholic liquor within Indian
country.
Section 4 Short Title. This Code shall be known and cited as the
``Pokagon Band Liquor Control Code.''
Section 5 Purpose. The purpose of this Code is to prohibit the
importation, manufacture, distribution, and sale of alcoholic liquor
for commercial purposes on the Reservation except pursuant to a license
issued by the Commission under the provisions of this Code and other
Tribal laws.
Section 6 Application of 18 U.S.C. 1161. The importation,
manufacture, distribution, and sale of alcoholic liquor for commercial
purposes on the Reservation shall be ``in conformity with'' this Code
and the laws of the State of Michigan as that phrase is used in 18
U.S.C. 1161.
Section 7 Incorporation by Reference of Michigan Laws.
(a) In accordance with 18 U.S.C. 1161, the Tribe hereby adopts and
applies as Tribal law those Michigan laws, as amended, relating to the
sale and regulation of alcoholic liquor encompassing the following
areas: Sale to a minor; sale to a visibly intoxicated individual; sale
of adulterated or misbranded liquor; hours of operation; and similar
substantive provisions, including such other laws prohibiting the sale
of alcoholic liquor to certain categories of individuals. Said Tribal
laws which are defined by reference to the substantive areas of
Michigan laws referred to in this section shall apply in the same
manner and to the same extent as such laws apply elsewhere in Michigan
to off-Reservation transactions unless otherwise agreed by the Tribe
and State; provided, that nothing in this Code shall be construed as a
consent by the Tribe to the jurisdiction of the State
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of Michigan or any of its courts or subordinate political subdivisions
or municipalities within the Reservation over any activity arising
under or related to the subject of this Code nor shall anything in this
Code constitute an express or implied waiver of the sovereign immunity
of the Tribe.
(b) The Tribe, for resale by the Tribe, shall purchase spirits from
the Michigan Liquor Control Commission, and beer and wine from
distributors licensed by the Michigan Liquor Control Commission, at the
same price and on the same basis that such beverages are purchased by
similar licensees.
(c) In the event of any conflict or inconsistency between ``adopted
and applied'' Michigan laws and this Code, the provisions of this Code
shall govern.
(d) Whenever such Michigan laws are incorporated herein by
reference, amendments thereto shall also be deemed to be incorporated
upon their effective date in the State of Michigan without further
action by the Council.
Section 8 General Provisions.
(a) Sales Limited To Permitted Hours. No alcoholic liquor shall be
sold, served, or allowed to be consumed on any premises licensed under
this Code other than during the hours permitted by Tribal law and the
license.
(b) Sale to Obviously Intoxicated Person. It shall be a violation
of this Code to sell or furnish for consumption on the licensed
premises any alcoholic liquor to any person who is obviously
intoxicated at the time. As used in this subsection, ``obviously
intoxicated'' means inebriated to the extent that a person's physical
faculties are substantially impaired and the impairment is shown by
significantly uncoordinated physical action or significant physical
dysfunction that would have been obvious to a reasonable person.
(c) Distribution off premises. No person licensed under this Code
shall distribute or deliver any alcoholic liquor off the premises
described in the license.
(d) Sale or possession with intent to sell without a license. Any
person who shall sell or offer for sale or distribute or transport in
any manner, any alcoholic liquor in violation of this Code, or who
shall have alcoholic liquor in his possession with intent to sell or
distribute on the Reservation without a license issued pursuant to this
Code shall be guilty of a violation of this Code.
(e) Purchases from other than licensed entities or premises. Any
person who, on the Reservation or within its boundaries, buys alcoholic
liquor from any person other than a licensed entity or premises shall
be guilty of a violation of this Code.
(f) Consumption or possession of alcoholic liquor by persons under
21 years of age. No person under the age of 21 years shall consume or
purchase any alcoholic liquor on the Reservation or within its
boundaries. No person under the age of 21 years shall have for personal
consumption any alcoholic liquor in his or her possession on the
Reservation or within its boundaries. No person shall permit any other
person under the age of 21 years to consume alcoholic liquor on his or
her premises or any premises under his or her control except as
expressly permitted under this Code. Upon any attempt to purchase
alcoholic liquor on a premises licensed under this Code by a person who
appears may be younger than twenty-one (21) years of age, the vendor
shall demand, and the prospective purchaser upon such demand shall
display, satisfactory evidence that he or she is of legal age. Any
person violating this Section shall be guilty of a separate violation
of this Code for each and every alcoholic liquor beverage consumed,
acquired, or possessed.
(g) Sales of Alcoholic Liquor to persons under 21 years of age. It
shall be a violation of this Code to sell or furnish any alcoholic
liquor to a person unless that person has attained 21 years of age.
Persons selling alcoholic liquor shall make a diligent inquiry as to
whether the purchaser is at least 21 years of age. For purposes of this
subsection, the term ``diligent inquiry'' means a diligent, good faith
effort to determine the age of the purchaser, which includes at least
an examination of such person's personal identification to establish
the identity and age of the purchaser. Any person who shall sell or
provide alcoholic liquor to any person under the age of 21 years shall
be guilty of a violation of this Code for every sale or drink provided.
(h) Transfer of identification to a minor. Any person who transfers
in any manner an identification of age to a minor for the purpose of
permitting such minor to obtain alcoholic liquor shall be guilty of an
offense; provided, that corroborative testimony of a witness other than
the minor shall be required for any finding of a violation of this
Code.
(i) Use of False or Altered Identification. Any person who attempts
to purchase an alcoholic liquor beverage through the use of a false or
altered identification shall be guilty of violating this Code.
(j) Acceptable Identification. Where there may be a question of a
person's right to purchase alcoholic liquor by reason of his or her
age, such person shall be required to present identification in one of
the following forms that displays his or her correct age, signature and
photograph:
(1) A driver's license or identification card issued by any state
or U.S. territory;
(2) United States active duty military ID;
(3) A passport issued by the Unites States or any foreign country;
or
(4) A Tribal identification card or other tribal identification
card recognized by the Commission.
(k) Sale of Adulterated or Mislabeled Liquor. It shall be a
violation of this Code for any person, by himself or by his agent or
employee, to sell, offer for sale, or possess any alcoholic liquor that
is adulterated or misbranded or any alcoholic liquor in bottles that
have been refilled. For the purposes of this Section, alcoholic liquor
shall be deemed adulterated if it contains any liquids or other
ingredients not placed there by the original manufacturer or bottler.
For the purposes of this Section, alcoholic liquor shall be deemed
misbranded when not plainly labeled, marked or otherwise designated.
For the purposes of this section, alcoholic liquor bottles shall be
deemed to be refilled when the bottles contain any liquid or other
ingredient not placed in the bottles by the original manufacturer.
Section 9 Administration of Code. The Gaming Commission shall
exercise all of the powers and accomplish all of the purposes as set
forth in this Code, including the following actions:
(a) Adopt and enforce rules and regulations for the purpose of
implementing and enforcing this Code, which includes the setting of
fees, provided that the Gaming Commission shall provide a minimum
public notice and opportunity to comment of sixty (60) days on any
proposed rule or regulation before such rule or regulation becomes
final and enforceable;
(b) Execute all necessary documents; and
(c) Perform all matters and things incidental to and necessary to
conduct its business and carry out its duties and functions under this
Code.
Section 10 Applicability Within the Reservation. This Code shall
apply to all persons on or within the boundaries of the Reservation,
consistent with applicable federal laws.
Section 11 Definitions. For the purposes of this Code, words in the
present tense include the future; the masculine includes the feminine;
the singular includes the plural; and the plural includes the singular.
The word ``shall'' is mandatory and the word
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``may' is permissive. In construing the provisions of this Code, the
following words or phrases shall have the meaning designated unless a
different meaning is expressly provided or the context clearly
indicates otherwise:
(a) ``Alcohol'' means the product of distillation of fermented
liquid, whether or not rectified or diluted with water, but does not
mean ethyl or industrial alcohol, diluted or not, that has been
denatured or otherwise rendered unfit for beverage purposes.
(b) ``Alcoholic liquor'' or ``liquor'' means any spirituous,
vinous, malt, or fermented liquor, liquids and compounds, whether or
not medicated, proprietary, patented, and by whatever name called,
containing one half of one percent (\1/2\ of 1%) or more of alcohol by
volume which is fit for use for beverage purposes. The following eight
sub-classifications comprise the entire universe of alcoholic liquor:
beer, wine, spirits, alcohol, sacramental wine, brandy, mixed wine
drink, and mixed spirit drink. Alcoholic liquor does not include the
exceptions set forth in Mich. Comp. Laws Sec. 436.4.
(c) ``Applicant'' means any person who submits an application to
the Tribe for a liquor license and who has not yet received such a
license.
(d) ``Beer'' means any beverage obtained by alcoholic fermentation
of an infusion or decoction of barley, malt, hops, or other cereal in
potable water.
(e) ``Brandy'' means an alcoholic liquor as defined in the federal
regulations, 27 CFR Sec. 5.22(d) (1980).
(f) ``Commission'' and ``Gaming Commission'' as used throughout
this Code means the Gaming Regulatory Committee first established by
the Pokagon Gaming Regulatory Act, as amended, and any other Tribal
commission, committee, board or other entity delegated authority by the
Council to regulate Tribal gaming activities on the Reservation.
(g) ``Constitution'' and ``Tribal Constitution,'' as used
throughout this Code, means the Constitution of the Pokagon Band of
Potawatomi Indians of Michigan and Indiana, adopted on November 1, 2005
and approved by the Secretary of the Interior on December 16, 2005,
including all subsequent amendments ratified and approved pursuant to
Tribal and federal law.
(h) ``Council'' and ``Tribal Council'' means the elected Tribal
Council of the Pokagon Band of Potawatomi Indians acting as the
governing body of the Tribe pursuant to the Tribe's Constitution.
(i) ``License'' means a liquor license issued by the Gaming
Commission under the provisions of this Code authorizing the
importation, manufacture, distribution, or sale of alcoholic liquor for
commercial purposes on or within the Reservation consistent with
federal law.
(j) ``Licensee'' means any holder of a liquor license issued by the
Tribe and includes any employee or agent of the Licensee.
(k) ``Manufacturer'' means any person engaged in the manufacture of
alcoholic liquor.
(l) ``Mixed wine drink'' means a drink or similar product marketed
as a wine cooler and containing less than seven percent (7%) alcohol by
volume, consisting of wine and plain, sparkling, or carbonated water
and containing any one (1) or more of the following: Nonalcoholic
liquor; flavoring; coloring materials; fruit juices; fruit adjuncts;
sugar; carbon dioxide; or preservatives.
(m) ``Mixed spirit drink'' means a drink produced and packaged or
sold by a mixed spirit drink manufacturer or an out-of-state seller of
mixed spirit drink which contains ten percent (10%) or less alcohol by
volume consisting of distilled spirits mixed with nonalcoholic liquor
or flavoring or coloring materials and which may also contain water,
fruit juices, fruit adjuncts, sugar, carbon dioxide, or preservatives.
(n) ``Person'' means any individual, whether Indian or non-Indian,
receiver, assignee, trustee in bankruptcy, trust estate, tribe, firm,
partnership, joint corporation, association, society, or any group of
individuals acting as a unit, whether mutual, cooperative, fraternal,
non-profit, or otherwise, and any other Indian tribe, band, or group,
whether recognized by the United States or otherwise. The term shall
also include any Tribal enterprise and licensee.
(o) ``Purchase'' means to acquire, by sale or otherwise, individual
possession, ownership, or rights to goods or services.
(p) ``Reservation'' means: pursuant to 25 U.S.C. Sec. 1300j-5 or
other applicable federal law, (i) all lands, the title to which is held
in trust by the United States for the benefit of the Pokagon Band of
Potawatomi Indians; and (ii) all lands proclaimed by the Secretary of
the Interior to be part of the Tribe's reservation. The term
Reservation includes any rights-of-way running through the Reservation.
(q) ``Secretary of the Interior'' means the Secretary of the United
States Department of the Interior.
(r) ``Sacramental wine'' means wine containing not more than
twenty-four percent (24%) of alcohol by volume and is used for
sacramental purposes.
(s) ``Sale'' means the exchange, barter, traffic, furnishing, or
giving away for commercial purposes of possession, ownership, or rights
to goods or services.
(t) ``Spirits'' means any beverage which contains alcohol obtained
by distillation, mixed with potable water or other substances, or both,
in solution, and includes wine containing an alcoholic content of more
than twenty-one percent (21%) by volume, except sacramental wine and
mixed spirit drink.
(u) ``Tribal Court'' means the Tribal Court of the Pokagon Band of
Potawatomi Indians.
(v) ``Tribal enterprise'' means the Tribe or any activity or
business owned, managed, or controlled by the Tribe or any agency,
subordinate organization, or other entity of the Tribe, where the
organic documents establishing such enterprise expressly allow for the
sale of alcoholic liquor.
(w) ``Tribal law'' means the Tribal Constitution and all laws,
acts, codes, and resolutions now and hereafter duly enacted by the
Tribal Council and any rules or regulations duly promulgated by the
Gaming Commission pursuant to this Code.
(x) ``Tribe'' means, and ``Tribal'' refers to, the Pokagon Band of
Potawatomi Indians of Michigan and Indiana.
(y) ``Wine'' means the product made by the normal alcoholic
fermentation of the juice of sound, ripe grapes, or any other fruit
with the usual cellar treatment, and containing not more than twenty-
one percent (21%) of alcohol by volume, including fermented fruit
juices other than grapes and mixed wine drinks.
Section 12 Interpretation and Findings. The Gaming Commission in
the first instance may interpret any ambiguities contained in this
Code.
Section 13 Liberal Construction. The provisions of this Code shall
be liberally construed to achieve the purposes set forth, whether
clearly stated or apparent from the context of the language used
herein.
Section 14 Computation of Time. Unless otherwise provided in this
Code, in computing any period of time prescribed or allowed by this
Code, the day of the act, event or default from which the designated
period time begins to run shall not be included. The last day of the
period so computed shall be included, unless it is a Saturday, a
Sunday, or a legal holiday, in which event the period runs until the
end of the next day which is not a Saturday, a Sunday, or a legal
holiday. For the purposes of this Code, the term ``legal
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holiday'' shall mean all legal holidays under Tribal law.
Section 15 Prohibition of Unlicensed Sale of Alcoholic Liquor. This
Code prohibits the importation, manufacture, distribution, or sale of
alcoholic liquor for commercial purposes other than where conducted by
a Tribal enterprise in accordance with this Code. No license shall be
issued to any person or entity other than a Tribal enterprise. The
federal liquor laws are intended to remain applicable to any act or
transaction that is not authorized by this Code, and violators shall be
subject to federal law. Consistent with United States v. Wheeler, 435
U.S. 313 (1978), nothing shall prevent both federal and Tribal
jurisdiction to enforce this Code.
Section 16 Sales of Alcoholic Liquor.
(a) Sales for Cash. All alcoholic liquor sales on the Reservation
or within its boundaries shall be on a cash or cash equivalent basis,
including the use of ATM cards, debit cards, checks, major credit
cards, or other instruments approved by the Gaming Commission.
(b) Sales for Personal Consumption. All alcoholic liquor sales
shall be for the personal use and consumption by the purchaser. Resale
of any alcoholic liquor purchased on the Reservation or within its
boundaries is prohibited. Any person not licensed pursuant to this Code
who purchases alcoholic liquor on the Reservation and sells it, whether
in the original container or not, shall be guilty of a violation of
this Code.
Section 17 Authorization to Sell Alcoholic Liquor. Any Tribal
enterprise applying for and obtaining a license under the provisions of
this Code shall have the right to engage only in those alcoholic liquor
transactions expressly authorized by such license and only at those
specific places or areas designated in said license.
Section 18 Limitation of the Commission's Powers. The Commission's
powers under this Code shall be limited as follows:
(a) The Commission may only issue a license permitting the sale of
alcoholic liquor on those areas of the Reservation where such
activities have been authorized by the Tribal Council.
(b) In the exercise of its powers and duties under this Code, the
Commission and its individual members shall not accept any gratuity,
compensation, or other things of greater than nominal value from any
alcoholic liquor producer, wholesaler, retailer, or distributor or from
any liquor licensee provided that if other enactments of law by the
Tribal Council provide more stringent ethics standards, such other
standards shall apply.
Section 19 Classes of Licenses. The Commission shall have the
authority to issue any one or more of the following classes of liquor
licenses within the Reservation:
(a) ``Retail on-sale general license'' means a license authorizing
the applicant to sell alcoholic liquor at retail to be consumed by the
buyer only on the premises or at the location designated in the
license. This class includes, without limitation, hotels where
alcoholic liquor may be sold for consumption on the premises and in the
rooms of bona fide registered guests.
(b) ``Retail on-sale beer and wine license'' means a license
authorizing the applicant to sell beer and wine at retail to be
consumed by the buyer only on the premises or at the location
designated in the license. This class includes, without limitation,
hotels where beer and/or wine may be sold for consumption on the
premises and in the rooms of bona fide registered guests.
(c) ``Retail off-sale general license'' means a license authorizing
the applicant to sell alcoholic liquor at retail to be consumed by the
buyer off of the premises or at a location other than the one
designated in the license.
(d) ``Retail off-sale beer and wine license'' means a license
authorizing the applicant to sell beer and wine at retail to be
consumed by the buyer off of the premises or at a location other than
the one designated in the license.
(e) ``Manufacturer's license'' means a license authorizing the
applicant to manufacture alcoholic liquor for the purpose of sale on
the Reservation.
(f) ``Temporary license'' means a license authorizing the sale of
alcoholic liquor on a temporary basis for premises temporarily occupied
by the licensee for a picnic, social gathering, or similar occasion.
The Commission may, by appropriate Commission action, limit or restrict
the number of licenses issued or in effect in its sole discretion.
Section 20 Application Form and Content. An application for a
license shall be made to the Commission and shall contain the following
information:
(a) The name and address of the licensee, including the names and
addresses of all of the principal officers and directors, and other
employees with primary management responsibility related to the sale of
alcoholic liquor;
(b) The specific area, location, and/or premise(s) sought to be
licensed;
(c) The class of liquor license applied for (e.g., retail on-sale
general license, etc.);
(d) Whether a state liquor license has been issued to the
applicant;
(e) A sworn statement by the applicant to the effect that none of
the applicant's officers and directors, and employees with primary
management responsibility related to the sale of alcoholic liquor were
ever convicted of a felony under any law and have not violated and will
not violate or cause or permit to be violated any of the provisions of
this Code; and
(f) The application shall be verified under oath and notarized by a
duly authorized representative.
Section 21 Transfer of License. Each license issued or renewed
under this Code is separate and distinct and is transferable from one
licensee to another and/or from one premises to another only with the
approval of the Gaming Commission. The Commission shall have the
authority to approve, deny, or approve with conditions any application
for the transfer of any license. The transfer application shall contain
all of the information required of an original applicant under Section
20 of this Code and shall be signed by both the licensee and
transferee. In the case of a transfer to a new premises, the
application shall contain an exact description of the location where
the alcoholic liquor is proposed to be sold.
Section 22 Term and Renewal of License. All licenses shall be
issued on a calendar year basis and shall be renewed annually. The
applicant shall renew a license by, prior to the license's expiration
date, submitting a written renewal application to the Gaming Commission
on the provided form, and paying the annual license fee for the next
year.
Section 23 Investigation. Upon receipt of an application for the
issuance, renewal, or transfer of a license, the Gaming Commission
shall make a thorough investigation to determine whether the applicant
and the premises for which a license is applied for qualify for a
license. The Commission shall investigate all matters related to the
eligibility of the applicant and the premises for a license under the
requirements of this Code, including matters that may affect public
health, safety, or welfare. The Commission shall specifically conclude
whether the provisions of this Code have been complied with by the
applicant and the premises.
Section 24 Public Hearing. Upon receipt of an application for
issuance or transfer of a license, and the payment of all fees required
under this Code, the Gaming Commission shall set the matter for a
public hearing. A hearing shall not be required for a license renewal
unless required by the Commission in its discretion based on
information provided in the applicant's renewal application indicating
that there has
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been a material change in the applicant's ownership or control or based
on other matters that may affect the applicant's continued eligibility
for a license. Notice of the time and place of the hearing shall be
given at least twenty (20) calendar days before the hearing to the
applicant by United States mail, postage prepaid, at the address listed
in the application or any other reasonable method adopted by the
Commission. The Commission shall also provide notice to the public of
the time, place, and purpose of the hearing by publication in a Tribal
newspaper, a newspaper of general circulation sold on the Reservation,
public posting or other reasonable method. The public notice shall
include the name of the applicant, whether the action involves a new
issuance, renewal, or transfer, the class of license applied for, and a
general description of the area where the alcoholic liquor will be or
has been sold. The hearing shall be conducted before the Gaming
Commission under such rules of procedure as it may adopt. The Gaming
Commission shall hear from any person who wishes to speak for or
against the application, subject to such limitations as the Commission
may issue in the course of the hearing regarding the length, relevance,
or repetitiveness of each speaker's testimony.
Section 25 Gaming Commission Action on the Application. The Gaming
Commission shall act on the matter within thirty (30) days of the
conclusion of the public hearing. The Commission shall have the
authority to deny, approve, or approve the application with conditions.
Upon approval of an application, the Commission shall issue a license
to the applicant in a form to be approved from time to time by the
Commission.
Section 26 Denial of License, Renewal, or Transfer. Solely for
purposes of this Section and Section 25, ``applicant'' means licensee
in the event of a renewal, and licensee and/or transferee in the event
of a transfer. An application for a new license, license renewal, or
license transfer may be denied for one or more of the following
reasons:
(a) The applicant has materially misrepresented facts contained in
the application;
(b) The applicant is presently not in compliance with Tribal or
federal laws;
(c) Granting of the license (or renewal or transfer thereof) would
create a threat to the peace, safety, morals, health, or welfare of the
Tribe;
(d) The applicant has failed to complete the application properly
or has failed to tender the appropriate fee; or
(e) A plea, verdict, or judgment of guilty, or the plea of nolo
contendere by an applicant's officer or director, or an employee with
primary management responsibility related to the sale of alcoholic
liquor, to any offense under any federal or state law prohibiting or
regulating the sale, use, possession, or giving away of alcoholic
liquor; or
(f) The applicant has a suspended or revoked state liquor license.
Section 27 Temporary Denial. If the application is denied solely on
the basis of subsections 26(b) or 26(d), the Gaming Commission shall,
within fourteen (14) days of receipt of the application, issue a
written notice of temporary denial to the applicant. Such notice shall
set forth the reasons for denial and shall state that the denial will
become permanent if the problem(s) is not corrected within fifteen (15)
days following receipt of the notice.
Section 28 Multiple Locations. Each license shall be issued to a
specific licensee. Separate licenses shall be issued for each of the
premises of any business establishment having more than one address.
Section 29 Posting of License. Every licensee shall post and keep
posted its license(s) in a conspicuous place(s) on the licensed
premises.
Section 30 Suspension or Revocation of License. Any one of the
following actions or inactions by a licensee shall constitute grounds
for the suspension or revocation of a license:
(a) Material misrepresentation of facts contained in any license
application;
(b) Not in compliance with Tribal or federal laws;
(c) Failure to comply with any condition of the license, including
failure to pay a required fee;
(d) A plea, verdict, or judgment of guilty, or a plea of nolo
contendere entered against one of its officers or directors, or
employees with primary management responsibility related to the sale of
alcoholic liquor, to any offense under federal or state law prohibiting
or regulating the sale, use, or possession, or giving away of alcoholic
liquor;
(e) Failure to take reasonable steps to correct objectionable
conditions constituting a nuisance on the licensed premises or any
adjacent area within a reasonable time after receipt of a notice to
make such corrections has been received from the Commission or its
authorized representative; or
(f) Suspension or revocation of the licensee's state liquor
license.
Section 31 Initiation of Suspension or Revocation Proceedings.
Suspension or revocation proceedings are initiated by the Gaming
Commission either:
(a) on the Commission's own initiative through adoption of a
resolution that sets forth allegations that if substantiated, would
provide grounds under this Code for the Commission to suspend or revoke
the license(s); or
(b) based on a signed request by any person and filed with the
Commission that alleges facts that would, if substantiated, provide
grounds under this Code for the Commission to suspend or revoke the
license(s).
The Gaming Commission shall cause the matter to be set for a
hearing before the Commission on a date not later than thirty (30) days
from the Commission's adoption of the resolution or its receipt of a
request. Notice of the time, date, and place of the hearing shall be
given the licensee and the public in the same manner as set forth in
Section 24. The notice shall state that the licensee has the right to
file a written response, verified under oath and signed by the
licensee, five (5) days prior to the hearing date.
If the Gaming Commission determines that the grounds for suspension
or revocation of a license are supported by reliable evidence and that
such grounds pose a substantial risk of imminent harm to the health,
welfare, or safety of the public, the Gaming Commission may immediately
suspend such license provided that such emergency suspension may not
exceed three (3) calendar days without a hearing.
Section 32 Hearing. The hearing shall be held before the Gaming
Commission under such rules of procedure as it may adopt. Both the
licensee and the person filing the request may present witnesses to
testify and to present written documents in support of their positions
to the Gaming Commission. The Gaming Commission may issue limitations
in the course of the hearing regarding the length, relevance, or
repetitiveness of each witness's testimony. The Gaming Commission shall
render its decision within sixty (60) days after the date of the
hearing. The decision of the Gaming Commission shall be final.
Section 33 Delivery of License. A licensee, upon suspension or
revocation of such license, shall promptly return the license to the
Gaming Commission. In cases involving suspension, the Gaming Commission
shall return the license to the licensee at the expiration or
termination of the suspension period, with a memorandum of the
suspension written or stamped upon the face thereof in red ink.
[[Page 2550]]
Section 34 General Penalties. Any person adjudged to be in
violation of this Code, including any lawful regulation promulgated
pursuant thereto, shall be subject to a civil fine of not more than
five hundred dollars ($500.00) for each such violation. The Gaming
Commission may adopt by resolution a separate schedule for fines for
each type of violation, taking into account the seriousness and threat
the violation may pose to the general health and welfare. Such schedule
may also provide, in the case of repeated violations, for imposition of
monetary penalties greater than the five hundred dollar ($500.00)
limitation set forth above. The penalties provided for herein shall be
in addition to any criminal penalties that may be imposed under
applicable law.
Section 35 Initiation of Action. Any violation of this Code shall
constitute a public nuisance. The Gaming Commission, on behalf of and
in the name of the Tribe, may initiate and maintain an action in Tribal
Court to abate and permanently enjoin any nuisance declared under this
Code. Any action taken under this section shall be in addition to any
other penalties provided for in this Code. The plaintiff shall not be
required to give bond in this action.
Section 36 Inspection. Immediately upon the request of a law
enforcement officer or a Commission investigator empowered to enforce
this Code and the rules and regulations promulgated hereunder, a
licensee shall make the licensed premises available for inspection and
search during regular business hours or when the licensed premises are
occupied by the licensee, including the licensee's employees and
agents.
Section 37 Contraband; Seizure; Forfeiture.
(a) All alcoholic liquor within the Reservation held, owned, or
possessed by any person or licensee operating in violation of this Code
is hereby declared to be contraband and subject to forfeiture to the
Tribe.
(b) Within three (3) weeks following the seizure of the contraband,
a hearing shall be held by the Gaming Commission, at which time the
operator or owner of the contraband shall be given an opportunity to
present evidence in defense of his or her activities.
(c) Notice of the hearing shall be given to the person from whom
the property was seized, if known prior to hearing. If the person is
unknown, notice of the hearing shall be posted at the place where the
contraband was seized and at other public places on the Reservation.
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.
(d) If upon hearing, the evidence warrants, or if no person appears
as a claimant, the Gaming Commission shall thereupon enter a
determination of forfeiture and order such contraband sold or destroyed
forthwith.
Section 38 Disposition of Proceeds. The gross proceeds collected by
the Commission from licensing shall be distributed as follows:
(a) First, to the Commission for the payment of all necessary
personnel, administrative costs, and legal fees for the administration
of the provisions of this Code; and
(b) Second, to the Tribe any remainder.
Section 39 Appeals. Appeals under this Code may only be brought in
the Pokagon Band Tribal Court by an applicant or a licensee to:
(a) challenge a final Gaming Commission decision to deny a license,
to deny an application to renew or transfer a license, or to revoke a
license; or
(b) to compel a Gaming Commission decision or action unreasonably
delayed or unlawfully withheld more than sixty (60) days beyond any
mandatory time limit established by law.
The Tribal Court shall hold unlawful and set aside any Gaming
Commission decision it finds to be arbitrary, not in accordance with
law, in excess of statutory authority, or unsupported by substantial
evidence in the record. The Tribal Court shall give deference to the
Gaming Commission's reasonable interpretations of this Code and any
rules or regulations promulgated hereunder.
Section 40 License Not a Property Right. Notwithstanding any other
provision of this Code, a liquor license is a mere permit for a fixed
duration of time. A liquor license shall not be deemed a property right
or vested right of any kind, nor shall the granting of a liquor license
give rise to a presumption of legal entitlement to the granting of such
license for a subsequent time period.
Section 41 Savings Clause. In the event any provision of this Code
shall be found or declared to be invalid by a court of competent
jurisdiction, all of the remaining provisions of this Code shall be
unaffected and shall remain in full force and effect.
Section 42 Effective Date. The effective date of this Code is the
date that the Secretary of the Interior publishes the same in the
Federal Register.
Section 43 Prior Inconsistent Acts. Except as provided otherwise
under applicable federal law, this Code shall be the exclusive Tribal
law governing the introduction, distribution, sale and regulation of
alcoholic liquor within the Reservation. This Code shall supersede any
and all Tribal laws that are inconsistent with the provisions of this
Code, and such laws are hereby rescinded and repealed.
Section 44 Sovereign Immunity Preserved.
(a) The Tribe, and all of its constituent parts, which includes but
is not limited to Tribal enterprises, subordinate organizations,
boards, committees, officers, employees and agents, are immune from
suit in any jurisdiction except to the extent that such immunity has
been expressly and unequivocally waived in writing by the Tribe.
(b) Nothing in this Code, and no enforcement action taken pursuant
to this Code or otherwise, including without limitation the filing of
suit by the Gaming Commission to enforce any provision of this Code or
other Tribal law, shall constitute a waiver of such sovereign immunity,
either as to any counterclaim, regardless of whether the asserted
counterclaim arises out of the same transaction or occurrence, or in
any other respect.
Legislative History
Liquor Control Code, enacted September 9, 2006 by Res. No. 06-09-
09-12 and certified by the Secretary of the Interior and published on
------ ------ ----( Fed.Reg.) ------.
[FR Doc. E7-714 Filed 1-18-07; 8:45 am]
BILLING CODE 4310-4J-P
