Confederated Tribes of Siletz Indians of Oregon Alcohol Beverage Control Law

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

Confederated Tribes of Siletz Indians of Oregon Alcohol Beverage

Control Law

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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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. Sec. 1161. I certify that Resolutions

numbered 96-110, 97-064 and 97-211, Liquor Ordinance of the

Confederated Tribes of Siletz Indians, was duly adopted by the Siletz

Tribal Council on April 20, 1996 and February 16, 1997. The Ordinance

provides for the regulation of the activities of the manufacture,

distribution, sale, and consumption of liquor on reservation lands

subject to the jurisdiction of the Confederated Tribes of Siletz

Indians of Oregon.

DATES: This Ordinance is effective July 24, 1997.

FOR FURTHER INFORMATION CONTACT: Bettie Rushing, Office of Tribal

Services, 1849 C Street NW, MS 4641-MIB, Washington, D.C. 20240-4001;

telephone (202) 208-4400.

SUPPLEMENTARY INFORMATION: The Confederated Tribes of Siletz Indians of

Oregon's Resolutions numbered 96-110 and 97-064 read as follows.

Liquor Ordinance of the Confederated Tribes of Siletz Indians of

Oregon, Chapter 14, Part I

Introduction

Section 14.01 Title

This Ordinance shall be known as the ``Liquor Ordinance of the

Confederated Tribes of Siletz Indians'' (hereinafter ``Siletz Tribe'').

This ordinance may be referred to as the ``Siletz Liquor Control

Ordinance.''

Section 14.02 Purpose and Authority

The purpose of this ordinance is to regulate and control the

possession and sale of liquor within Siletz Indian country, as

specifically authorized and approved by the General Council referendum

under Article VII, Section 2 of the Siletz Tribal Constitution. The

authority for enactment of this Ordinance is as follows:

(a) The Act of August 15, 1953 (Public Law 83-277, 67 Stat. 586,

codified as 18 U.S.C. Sec. 1161) which provides a federal statutory

basis for the Siletz Tribe to regulate the activities of the

manufacture, distribution, sale and consumption of liquor on Indian

lands under the jurisdiction of the Confederated Tribes of Siletz

Indians of Oregon, so long as such ordinance is in conformance with the

laws of the State of Oregon; and

(b) Article IV, Section 1, of the Constitution of the Confederated

Tribes of Siletz Indians of Oregon, which vests the Tribal Council with

legislative and administrative authority, and otherwise empowers the

Tribal Council to act for the Confederated Tribes of Siletz Indians of

Oregon.

Part II

Definitions

Section 14.03

(a) As used in this Ordinance, the following words shall have the

following meanings unless the context clearly requires otherwise:

(1) 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.

(2) Alcoholic Beverage is synonymous with the term ``Liquor'' as

defined in paragraph 6 of this section.

(3) Bar means any establishment with special space and

accommodations for sale by the glass and for consumption on the

premises of liquor, as herein defined.

(4) 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 of cereal in pure water

containing not more than four percent of alcohol by volume.

(5) Committee for the purposes of this Ordinance shall mean the

Tribal Council of the Siletz Tribe.

[[Page 39856]]

(6) Liquor including 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.

(7) Liquor Store means any store at which liquor is sold, and for

the purposes of this Ordinance, includes a store at which only a

portion of which is devoted to the sale of liquor or beer.

(8) Malt Liquor means beer, ale, stout, and porter.

(9) Package means any container or receptacle used for holding

liquor.

(10) 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

establishments, public buildings, public meeting halls, lobbies, halls

and dining rooms of hotels, restaurants, theaters, 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 and character; and all other places of like or similar nature to

which the general public has 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.

(11) Reservation means the Siletz Tribe Reservation, which is held

in trust by the United States for the benefit of the Siletz Tribe or

held in trust for the benefit of an individual member of the Siletz

Tribe.

(12) 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.

(13) Spirits mean any beverage, which contains alcohol obtained by

distillation, including wines exceeding seventeen percent of alcohol by

weight.

(14) Tribe means the Confederated Tribes of Siletz Indians of

Oregon.

(15) 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.

(b) (1) To the extent that definitions are not inconsistent with

tribal or federal law, the terms used in this ordinance shall have the

same meaning as defined in Title 37, Oregon Revised Statutes, Chapter

471, and as defined in Oregon Administrative Rules, Chapter 845.

(2) References in Section 14.03 to federal and Oregon state law

shall be those laws and regulations in effect as of May 18, 1996.

Subsequent changes in those laws and regulations shall be considered

incorporated into this ordinance and effective unless the Siletz Tribal

Council or the General Council amends this Ordinance.

Section 14.04 Conformity to State Law

(a) Statement of Objection. The Confederated Tribes of Siletz

Indians of Oregon does not agree with the alleged authority of the

United States or the State of Oregon to interfere with the Siletz

Tribe's sovereign authority to regulate the control of liquor within

Siletz Indian country. Nothing in this Ordinance shall be interpreted

as a waiver of the Siletz Tribe's right and power to challenge such

authority in judicial forums of competent jurisdiction, or by use of

the political process. The Ordinance shall conform with the laws of the

State of Oregon as required by 18 U.S.C. Sec. 1161, and Rice v. Rehner,

463 U.S. 713 (1983).

(b) Conformity to State Law. The Confederated Tribes of Siletz

Indians of Oregon agrees to perform in the sale and possession of

liquor in the same manner as any other Oregon business entity for the

purpose of liquor licensing and regulations, including but not limited

to licensing, compliance with the regulations of the Oregon Liquor

Control Commission (OLCC), maintenance of liquor liability insurance,

and other applicable subjects as the State may address by statute or

regulation from time to time. The Tribal Council may enter into an

intergovernmental agreement with the State of Oregon to address the

details of compliance with state law and regulation under this

Ordinance, provided, that any such intergovernmental agreement shall

not conflict with or supersede the terms of this Ordinance, and shall

not have force of law, unless and until this Ordinance has been validly

amended pursuant to STC Sec. 14.39 and such amendment has been approved

by the appropriate officials of the United States Department of the

Interior, as required by federal law.

(c) Jurisdiction/Dispute Resolution. Jurisdiction for enforcement

of the provisions of this Ordinance by the State of Oregon shall be as

set forth in an appropriate intergovernmental agreement between the

Siletz Tribe and the State of Oregon. No consent to jurisdiction in the

courts of the State of Oregon and no consent to a limited waiver of the

Siletz Tribe's sovereign immunity shall be implied or inferred except

through negotiation and express consent to jurisdiction and limited

waiver of sovereign immunity in a valid intergovernmental agreement.

Such agreement shall not supersede or conflict with any of the terms of

this Ordinance, and shall not have force of law, unless and until this

Ordinance has been validly amended pursuant to STC Sec. 14.39 and such

amendment has been approved by the appropriate officials of the United

States Department of the Interior, as required by federal law.

(d) Future Changes in the Law. Amendment or modification of

regulation by the Siletz Tribe of the sale and possession of liquor

shall not be effective until this Ordinance has been validly amended

pursuant to STC Sec. 14.39 and such amendment has been approved by the

appropriate officials of the United States Department of the Interior,

as required by federal law.

Part III

Powers of Enforcement

Section 14.05

(a) Powers. The Committee, in furtherance of the Ordinance, shall

have the following powers and duties, or may delegate such duties by

resolution:

(1) To publish and enforce the rules and regulations governing the

sale, manufacture, and distribution of alcoholic beverages on the

Reservation;

(2) 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;

(3) To issue licenses permitting the sale or manufacture or

distribution of liquor on the Reservation;

(4) To hold hearings on violations of this Ordinance or for the

issuance or revocation of licenses hereunder;

[[Page 39857]]

(5) To bring suit in the appropriate court to enforce this

Ordinance as necessary;

(6) To determine and seek damages for violation of this Ordinance;

(7) To make such reports as may be required;

(8) To collect taxes and fees levied or set by the Committee, and

to keep accurate records, books and accounts; and

(9) To exercise such other powers as are necessary and appropriate

to fulfill the purposes of this Ordinance.

(b) The Committee shall have the authority to authorize the sale of

liquor only on those areas of the Siletz Tribe's reservation that have

been specifically approved by the Siletz General Council, by

referendum, and under such conditions as may be included in said

referendum.

Section 14.06 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.

Section 14.07 Inspection Rights

The premises on which liquor is sold or distributed shall be open

for inspection by the Committee at all reasonable time for the purposes

of ascertaining whether the rules and regulations of this Ordinance are

being complied with.

Part IV

Sales of Liquor

Section 14.08 Licenses Required

No sales of alcoholic beverages shall be made, except at a

tribally-licensed or tribally-owned business operated on Reservation

land within the exterior boundaries of the Siletz Tribe.

Section 14.09 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.

Section 14.10 Sale for Personal Consumption

All sales shall be for the personal use and consumption of the

purchaser. Resale of any alcoholic beverage purchases 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 Siletz

Tribe as set forth herein.

Part V

Licensing

Section 14.11 Requirements for Application for Tribal Liquor License

No individual 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 Oregon.

(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 a license 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. The notice shall state the date, time, and place when the

application shall be considered by the Committee pursuant to Section

14.12 of this Ordinance.

Section 14.12 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/her 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 applicant. After the hearing, the Committee, by secret ballot,

shall determine whether to grant or deny the application based on:

(a) Whether the requirements of Section 14.11 have been met; and

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

granting the license is in the best interest of the Siletz Tribe.

In the event that the applicant is a member of the Tribal Council,

or a member of the immediate family of a Tribal Council member, such

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

as a Committee member.

Section 14.13 Temporary Permits

The Committee or its designee may grant a temporary permit for the

sale of intoxicating beverages for a period not to exceed three (3)

days to any persons applying for the same in connection with a tribal

or community activity, provided that the conditions prescribed in

Section 14.14 of this Ordinance shall be observed by the permittee.

Each permit issued shall specify the types of intoxicating beverages to

be sold. Further, a fee, as set by the Committee, will be assessed on

temporary permits.

Section 14.14 Conditions of the Tribal License

Any tribal license issued under this Ordinance 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 2 years;

(b) The licensee shall at all times maintain an orderly, clean, and

neat establishment, both inside and outside the licensed premises;

(c) The licensed premises shall be subject to patrol by the tribal

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

authorized under applicable law;

(d) The licensed premises shall be open to inspection by duly

authorized tribal officials at all times during the regular business

hours;

(e) 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 Oregon, 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

Oregon.

(f) 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

Siletz Tribe, and

[[Page 39858]]

including special days of observance as designated by the Committee.

(g) All acts and transactions under authority of the tribal liquor

licenses shall be in conformity with the laws of the State of Oregon,

as required by federal law, and shall be in accordance with this

Ordinance and any tribal license issued pursuant to this Ordinance.

(h) No person under the age permitted under the laws of the State

of Oregon shall be sold, served, delivered, given, or allowed to

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

(i) There shall be no discrimination in the operations under the

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

Section 14.15 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.

Section 14.16 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.

Part VI

Rules, Regulations and Enforcement

Section 14.17 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/her possession with

intent to sell or distribute without a permit, shall be guilty of a

violation of this Ordinance.

Section 14.18 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.

Section 14.19 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.

Section 14.20 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 of such

person who shall knowingly permit any person to drink any liquor in any

public conveyance shall be guilty of a violation of this Ordinance. Any

person who shall drink any liquor in a public conveyance shall be

guilty of a violation of this Ordinance.

Section 14.21 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/her possession any alcoholic beverage. No person shall permit

any other person under the age of 21 to consume liquor on his/her

premises or any premises under his/her control except in those

situations set out in this Section. Any persons violating this Section

shall be guilty of a separate violation of this Ordinance for each and

every drink so consumed.

Section 14.22 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.

Section 14.23 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.

Section 14.24 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.

Section 14.25 Violation of This Ordinance

Any person guilty of a violation of this Ordinance shall be liable

to pay the Siletz Tribe a penalty not to exceed $500 per violation as

civil damages to defray the Siletz Tribe's cost of enforcement of this

Ordinance. In addition to any penalties so imposed, a license issued

hereunder may be suspended or canceled 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.

Section 14.26 Acceptable Identification

Where there may be a question of a person's right to purchase

liquor by reason of his/her age, such person shall be required to

present any one of the following issued cards of identification which

shows his/her correct age and bears his/her 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 Identification;

(3) Passport.

Section 14.27 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.

Section 14.28 Disposition of Seized Contraband

Any officer seizing contraband shall preserve the contraband in

accordance with applicable law. Upon being found in violation of this

Ordinance by the Committee, the party shall forfeit all right, title

and interest in the items seized which shall become the property of the

Siletz Tribe.

Part VII

Taxes

Section 14.29 Sales Tax

The Committee shall have the authority, by regulation, to levy and

collect a sales tax on each sale of alcoholic beverages on the

Reservation. The amount of such tax shall be set by regulation, shall

include credit card payments, and shall include all retail sales of

liquor on the Reservation.

Section 14.30 Payment of Taxes to Tribe

All taxes from the sale of alcoholic beverages on the Reservation

shall be paid over to the agency of the Siletz Tribe.

Section 14.31 Taxes Due

All taxes for the sale of alcoholic beverages on the Reservation

are due

[[Page 39859]]

within thirty (30) days of the end of the calendar quarter for which

the taxes are due.

Section 14.32 Reports

Along with payment of the taxes imposed herein, the taxpayers 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.

Section 14.33 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 Siletz 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.

Part VIII

Profits

Section 14.34 Disposition of Proceeds

The gross proceeds collected by the Committee from licensing and

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 of the Committee and its

activities.

(b) The remainder shall be turned over to the account of the Siletz

Tribe.

Part IX

Severability and Miscellaneous

Section 14.35 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.

Section 14.36 Prior Enactments

All prior enactments of the Tribal Council which are inconsistent

with the provisions of this Ordinance are hereby rescinded.

Section 14.37 Conformance With Oregon Laws

All acts and transactions under this ordinance shall be in

conformity with the laws of the State of Oregon as that term is used in

18 U.S.C. 1161.

Section 14.38 Effective Date

This Ordinance shall be effective on July 24, 1997.

Part X

Amendment

Section 14.39

This Ordinance may only be amended or repealed by a majority vote

of the Tribal Council. The authorized areas of the Siletz Tribe's

Reservation where alcohol may be sold may only be amended or repealed

by the General Council.

Part XI

Sovereign Immunity

Section 14.40

Nothing contained in this Ordinance is intended to, nor does in any

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

immunity from unconsented suit.

Dated: July 15, 1997.

Ada E. Deer,

Assistant Secretary, Indian Affairs.

[FR Doc. 97-19410 Filed 7-23-97; 8:45 am]

BILLING CODE 4310-02-P