The Twenty-Nine Palms Band of Mission Indians Liquor Control Ordinance

SUMMARY: This notice is published in accordance with authority

delegated by the Secretary of the Interior to the Assistant Secretary--

Indian Affairs by 209 DM8, and in accordance with the Act of August 15,

1953, 67 Stat 586, 18 U.S.C. 1161. I certify that the Twenty-Nine Palms

Band of Mission Indians Liquor Ordinance was duly adopted by the

Twenty-Nine Palms Band of Mission Indians on October 6, 1994, and

amended twice, by resolution No. 950608 of June 8, 1995, and by

resolution No. 950615A of June 15, 1995. The Ordinance provides for the

regulation, distribution, possession, sale, and consumption of liquor

on lands held in trust belonging to the Twenty-Nine Palms Band of

Mission Indians.

DATES: This ordinance is effective as of June 26, 1995.

FOR FURTHER INFORMATION CONTACT: Chief, Branch of Judicial Services,

Division of Tribal Government Services, 1849 C Street, NW., MS 2611-

MIB, Washington, DC 20240-4001; telephone 202/208-4400.

SUPPLEMENTARY INFORMATION: The Twenty-Nine Palms Band of Mission

Indians Liquor Control Ordinance is to read as follows:

Liquor Ordinance of the Twenty-Nine Palms Band of Mission Indians

Chapter I--Introduction

101. Title. This ordinance shall be known as the ``Liquor ordinance of

the Twenty-Nine Palms Band of Mission Indians.''

102. Authority. This ordinance is enacted pursuant to the Act of August

15, 1953 (Pub. L. 83-277, 67 Stat. 588, 18 U.S.C. 1161) and Article

6A(5) of the Twenty-Nine Palms Band of Mission Indians Articles of

Association.

103. Purpose. The purpose of this ordinance is to regulate and control

the possession and sale of liquor on the Twenty-Nine Palms Indian

Reservation. The enactment of a tribal ordinance governing liquor

possession and sale on the reservation will increase the ability of the

tribal government to control reservation liquor distribution and

possession, and at the same time will provide an important source of

revenue for the continued operation and strengthening of the tribal

government and the delivery of tribal government services.

Chapter II--Definitions

201. As used in this ordinance, the following words shall have the

following meanings unless the context clearly requires otherwise.

202. ``Alcohol.'' Means 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 of this substance.

203. ``Alcoholic Beverage.'' Is synonymous with the term ``Liquor'' as

defined in Section 208 of this Chapter.

204. ``Bar.'' Means any establishment with special space and

accommodations for sale by the glass and for consumption on the

premises of beer, as herein defined.

205. ``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 of cereal in pure

water containing not more than four percent of alcohol by volume. For

the purposes of this title, any such beverage, including ale, stout,

and porter, containing more than four percent of alcohol by weight

shall be referred to as ``strong beer.''

206. ``Committee.'' Means the Business Committee of the Twenty-nine

Palms Band of Mission Indians.

207. ``General Council.'' Means the general council of the Twenty-nine

Palms Band of Mission Indians which is composed of the voting

membership of the Tribe as a whole.

208. ``Liquor.'' Includes the four varieties of liquor herein defined

(alcohol, spirits, wine and beer), and all fermented spirituous,

vinous, or malt liquor or combination thereof, and mixed liquor, or

otherwise intoxicating; and every liquid or solid or semisolid 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, semisolid, solid, or other

substances, which contain more than one percent of alcohol by weight

shall be conclusively deemed to be intoxicating.

209. ``Liquor Store.'' Means any store at which liquor is sold and, for

the purposes of this ordinance, including stores only a portion of

which are devoted to sale of liquor or beer.

210. ``Malt Liquor.'' Means beer, strong beer, ale stout, and porter.

211. ``Package.'' Means any container or receptacle used for holding

liquor.

212. ``Public Place.'' Includes state or county or tribal or federal

highways or roads; buildings and grounds used for school purposes;

public dance halls and grounds adjacent thereto; soft drink

establishment, public buildings, public meeting halls, lobbies, halls

and dining rooms of hotels, restaurants, theater, gaming facilities,

entertainment centers, store garages, and filling stations which are

open to and/or are generally used by the public and to which the public

is permitted to have unrestricted access; public conveyances of all

kinds of character; and all other places of like or similar nature to

which the general public has unrestricted right of access, and which

are generally used by the public. For the purposes of this ordinance,

``Public Place'' shall also include any establishment other than a

single family home which is designed for or may be used by more than

just the owner of the establishment.

213. ``Reservation.'' Means land held in trust by the United States

Government for the benefit of the Twenty-nine Palms Band of Mission

Indians (see also Tribal Land).

214. ``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.

215. ``Spirits.'' Means any beverage, which contains alcohol obtained

by distillation, including wines exceeding seventeen percent of alcohol

by weight.

216. ``Tribe.'' Means the Twenty-nine Palms Band of Mission Indians.

217. ``Tribal Land.'' Means any land within the exterior boundaries of

the Reservation which is held in trust by the United States for the

Tribe as a whole, including and such land leased to other parties.

[[Page 33069]]

218. ``Wine.'' Means any alcoholic beverage obtained by fermentation of

fruits (grapes, berries, apples, etc.) or other agricultural product

containing sugar, to which any saccharine substances may have been

added before, during or after fermentation, and containing not more

than seventeen percent of alcohol by weight, including sweet wines

fortified with wine spirits such as port, sherry, muscatel, and

angelica, not exceeding seventeen percent of alcohol by weight.

219. ``Trust Account.'' Means the account designated by the tribal

treasurer for deposit of proceeds from the tax from the sale of

alcoholic beverages.

220. ``Trust Agent.'' Means the tribal Chairperson or a designee of the

Chairperson.

Chapter III--Powers of Enforcement

301. Powers. The Committee, in furtherance of this ordinance, shall

have the following powers and duties:

a. To publish and enforce the rules and regulations governing the

sale, manufacture, and distribution of alcoholic beverages on the

Reservation;

b. To employ managers, accountants, security personnel, inspectors,

and such other persons as shall be reasonably necessary to allow the

Committee to perform its functions. Such employees shall be tribal

employees;

c. To issue licenses permitting the sale or manufacture or

distribution of liquor on the Reservation;

d. To hold hearings on violations of this ordinance or for the

issuance or revocation of licenses hereunder;

e. To bring suit in the appropriate court to enforce this ordinance

as necessary;

f. To determine and seek damages for violation of this ordinance;

g. To make such reports as may be required by the General Council;

h. To collect taxes and fees levied or set by the Committee, and to

keep accurate records, books and accounts; and

i. To exercise such other powers as are delegated by the General

Council.

302. Limitation on Powers. In the exercise of its powers and duties

under this ordinance, the Committee and its individual members shall

not accept any gratuity, compensation or other thing of value from any

liquor wholesaler, retailer, or distributor or from any licensee.

303. Inspection Rights. The premises on which liquor is sold or

distributed shall be open for inspection by the Committee at all

reasonable times for the purposes of ascertaining whether the rules and

regulations of this ordinance are being complied with.

Chapter IV--Sales of Liquor

401. Licenses Required. No sales of alcoholic beverages shall be made

within the exterior boundaries of the Reservation, except at a

tribally-licensed or tribally-owned business operated on tribal land

within the exterior boundaries of the Reservation.

402. Sales Only on Tribal Land. All liquor sales within the exterior

boundaries of the Reservation shall be on Tribal Land, including leases

thereon.

403. Sales for Cash. All liquor sales within the Reservation boundaries

shall be on a cash only basis and no credit shall be extended to any

person, organization, or entity, except that this provision does not

prevent the use of major credit cards such as Visa, American Express,

etc.

404. Sale for Personal Consumption. All sales shall be for the personal

use and consumption of the purchaser. Resale of any alcoholic beverage

purchased within the exterior boundaries of the Reservation is

prohibited. Any person who is not licensed pursuant to this ordinance

who purchases an alcoholic beverage within the boundaries of the

Reservation and sells it, whether in the original container or not,

shall be guilty of a violation of this ordinance and shall be subjected

to paying damages to the Tribe as set forth herein.

Chapter V--Licensing

501. Applicable for Tribal Liquor License Requirements. No tribal

license shall issue under this ordinance except upon a sworn

application filed with the Committee containing a full and complete

showing of the following:

a. Satisfactory proof that the applicant is or will be duly

licensed by the State of California.

b. Satisfactory proof that the applicant is of good character and

reputation among the people of the Reservation and that the applicant

is financially responsible.

c. The description of the premises in which the intoxicating

beverages are to be sold, proof that the applicant is the owner of such

premises, or lessee of such premises, for at least the term of the

license.

d. Agreement by the applicant to accept and abide by all conditions

of the tribal license.

e. Payment of $250.00 fee as prescribed by the Committee.

f. Satisfactory proof that neither the applicant nor the

applicant's spouse has ever been convicted of a felony.

g. Satisfactory proof that notice of the application has been

posted in a prominent, noticeable place on the premises where

intoxicating beverages are to be sold for at least 30 days prior to

consideration by the Committee and has been published at least twice in

such local newspaper serving the community that may be affected by the

license of the Tribal Chairman or Secretary may authorize. The notice

shall state the date, time, and place when the application shall be

considered by the Committee pursuant to section 502 of this ordinance.

502. Hearing on Application for Tribal Liquor License. All applications

for a tribal liquor license shall be considered by the Committee in

open session at which the applicant, his attorney, and any person

protesting the application shall have the right to be present, and to

offer sworn oral or documentary evidence relevant to the application.

After the hearing, the Committee, by secret ballot, shall determine

whether to grant or deny the application based on:

(1) Whether the requirements of section 501 have been met; and

(2) Whether the Committee, in its discretion, determines that

granting the license is in the best interests of the Tribe.

In the event that the applicant is a member of the General Council, or

a member of the immediate family of a General Council member, such

member shall not vote on the application or participate in the hearings

as a Committee member.

503. Temporary Permits. The Committee or their designee may grant a

temporary permit for the sale of intoxicating beverages for a period

not to exceed three (3) days to any person applying for the same in

connection with a tribal or community activity, provided that the

conditions prescribed in Section 504 of this ordinance shall be

observed by the permittee. Each permit issued shall specify the types

of intoxicating beverages to be [[Page 33070]] sold. Further, a fee of

$25.00 will be assessed on temporary permits.

504. Conditions of the Tribal License. Any tribal license issued under

this title shall be subject to such reasonable conditions as the

Committee shall fix, including, but not limited to the following:

a. The license shall be for a term not to exceed 1 year.

b. The license shall at all times maintain an orderly, clean, and

neat establishment, both inside and outside the licensed premises.

c. The State of California shall have jurisdiction over offenses

and civil causes of action committed on the licensed premises to the

same extent that it has jurisdiction over offenses civil causes of

action committed elsewhere within California, and the California

criminal laws, and civil laws of general applicability to private

persons or private property, shall have the same force and effect on

the licensed premises as they have elsewhere in California.

d. The licensed premises shall be subject to patrol by the tribal

police department, and such other law enforcement officials as may be

authorized under federal, California, or tribal law.

e. The licensed premises shall be open to inspection by duly

authorized tribal officials at all times during the regular business

hours.

f. Subject to the provisions of subsection ``g'' of this section,

no intoxicating beverages shall be sold, served, disposed of,

delivered, or given to any person, or consumed on the licensed premises

except in conformity with the hours and days prescribed by the laws of

the State of California, and in accordance with the hours fixed by the

Committee, provided that the licensed premises shall not operate or

open earlier or operate or close later than is permitted by the laws of

the State of California.

g. No liquor shall be sold within 200 feet of a polling place on

tribal election days, or when a referendum is held of the people of the

Tribe, and including special days of observation as designated by the

Committee.

h. All acts and transactions under authority of the tribal liquor

license shall be in conformity with the laws of the State of

California, and shall be in accordance with this ordinance and any

tribal license issued pursuant to this ordinance.

i. No person under the age permitted under the laws of the State of

California shall be sold, served, delivered, given, or allowed to

consume alcoholic beverages in the licensed establishment and/or area.

j. There shall be no discrimination in the operations under the

tribal license by reason of race, color, or creed.

505. License Not a Property Right. Notwithstanding any other provision

of this ordinance, a tribal liquor license is a mere permit for a fixed

duration of time. A tribal liquor license shall not be deemed a

property right or vested right of any kind, nor shall the granting of a

tribal liquor license give rise to a presumption of legal entitlement

to the granting of such license for a subsequent time period.

506. Assignment or Transfer. No tribal license issued under this

ordinance shall be assigned or transferred without the written approval

of the Committee expressed by formal resolution.

Chapter VI--Rules, Regulations, and Enforcement

601. Sales or Possession With Intent to Sell Without a Permit. Any

person who shall sell or offer for sale or distribute or transport in

any manner, any liquor in violation of this ordinance, or who shall

operate or shall have liquor in his possession with intent to sell or

distribute without a permit, shall be guilty of a violation of this

ordinance.

602. Purchases From Other Than Licensed Facilities. Any person within

the boundaries of the Reservation who buys liquor from any person other

than at a properly licensed facility shall be guilty of a violation of

this ordinance.

603. Sales to Persons Under the Influence of Liquor. Any person who

sells liquor to a person apparently under the influence of liquor shall

be guilty of a violation of this ordinance.

604. Consuming Liquor in Public Conveyance. Any person engaged wholly

or in part in the business of carrying passengers for hire, and every

agent, servant or employee or such person who shall knowingly permit

any person to drink any liquor in any public conveyance shall be guilty

of an offense. Any person who shall drink any liquor in a public

conveyance shall be guilty of a violation of this ordinance.

605. Consumption or Possession of Liquor by Persons Under 21 Years of

Age. No person under the age of 21 years shall consume, acquire or have

in his possession any alcoholic beverage. No person shall permit any

other person under the age of 21 to consume liquor on his premises or

any premises under his control except in those situations set out in

this section. Any person violating this section shall be guilty of a

separate violation of this ordinance for each and every drink so

consumed.

606. Sales of Liquor to Persons Under 21 Years of Age. Any person who

shall sell or provide liquor to any person under the age of 21 years

shall be guilty of a violation of this ordinance for each sale or drink

provided.

607. Transfer of Identification to Minor. Any person who transfers in

any manner an identification of age to a minor for the purpose of

permitting such minor to obtain liquor shall be guilty of an offense;

provided, that corroborative testimony of a witness other than the

minor shall be a requirement of finding a violation of this ordinance.

608. Use of False or Altered Identification. Any person who attempts to

purchase an alcoholic beverage through the use of false or altered

identification which falsely purports to show the individual to be over

the age of 21 years shall be guilty of violating this ordinance.

609. Violations of This Ordinance. Any person guilty of a violation of

this ordinance shall be liable to pay the Tribe a penalty not to exceed

$500 per violation as civil damages to defray the Tribe's cost of

enforcement of this ordinance. In addition to any penalties so imposed,

any license issued hereunder may be suspended or cancelled by the

Committee for the violation of any of the provisions of this ordinance,

or of the tribal license, upon hearing before the Committee after 10

days notice to the licensee. The decision of the Committee shall be

final.

610. Acceptable Identification. Where there may be a question of a

person's right to purchase liquor by reason of his age, such person

shall be required to present any one of the following issued cards of

identification which shows his correct age and bears his signature and

photograph:

1. Driver's license of any state or identification card issued by

any State Department of Motor Vehicles;

2. United States Active Duty Military;

3. Passport [[Page 33071]]

611. Possession of Liquor Contrary to This Ordinance. Alcoholic

beverages which are possessed contrary to the terms of this ordinance

are declared to be contraband. Any tribal agent, employee, or officer

who is authorized by the Committee to enforce this section shall have

the authority to, and shall seize, all contraband.

612. Disposition of Seized Contraband. Any officer seizing contraband

shall preserve the contraband in accordance with the appropriate

California law code. Upon being found in violation of the ordinance by

the Committee, the party shall forfeit all right, title and interest in

the items seized which shall become the property of the Tribe.

Chapter VII--Taxes

701. Sales Tax. There is hereby levied and shall be collected a tax on

each sale of alcoholic beverages on the Reservation in the amount of

one percent (1%) of the amount actually collected, including payments

by major credit cards. The tax imposed by this section shall apply to

all retail sales of liquor on the Reservation and shall preempt any tax

imposed on such liquor sales by the State of California.

702. Payment of Taxes to Tribe. All taxes from the sale of alcoholic

beverages on the Reservation shall be paid over to the trust agent of

the Tribe.

703. Taxes Due. All taxes for the sale of alcoholic beverages on the

Reservation are due within thirty (30) days of the end of the calendar

quarter for which the taxes are due.

704. Reports. Along with payment of the taxes imposed herein, the

taxpayer shall submit an accounting for the quarter of all income from

the sale or distribution of said beverages as well as for the taxes

collected.

705. Audit. As a condition of obtaining a license, the licensee must

agree to the review or audit of its books and records relating to the

sale of alcoholic beverages on the Reservation. Said review or audit

may be done annually by the Tribe through its agents or employees

whenever, in the opinion of the Committee, such a review or audit is

necessary to verify the accuracy of reports.

Chapter VIII--Profits

801. Disposition of Proceeds. The gross proceeds collected by the

Committee from all licensing provided from the taxation of the sales of

alcoholic beverages on the Reservation shall be distributed as follows:

a. For the payment of all necessary personnel, administrative

costs, and legal fees for the operation and its activities.

b. The remainder shall be turned over to the Trust Account of the

Tribe.

Chapter IX--Severability and Miscellaneous

901. Severability. If any provision or application of this ordinance is

determined by review to be invalid, such adjudication shall not be held

to render ineffectual the remaining portions of this title or to render

such provisions inapplicable to other persons or circumstances.

902. Prior Enactments. And all prior enactments of the Committee which

are inconsistent with the provisions of this ordinance are hereby

rescinded.

903. Conformance with California Laws. All acts and transactions under

this ordinance shall be in conformity with the laws of the State of

California as that term is used in 18 U.S.C. 1161.

904. Effective Date. This ordinance shall be effective on June 26,

1995, such date as the Secretary of the Interior certifies this

ordinance and publishes the same in the Federal Register.

Chapter X--Amendment

1001. This ordinance may only be amended by a majority vote of the

General Council.

Chapter XI--Sovereign Immunity

1101. Nothing contained in this ordinance is intended to, nor does in

any way limit, alter, restrict, or waive the Tribe's sovereign immunity

from unconsented suit or action.

Dated: June 16, 1995.

Ada E. Deer,

Assistant Secretary--Indian Affairs.

[FR Doc. 95-15529 Filed 6-23-95; 8:45 am]

BILLING CODE 4310-02-P