[Federal Register Volume 74, Number 146 (Friday, July 31, 2009)]
[Notices]
[Pages 38220-38227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18294]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Kaw Nation Alcohol Control Ordinance

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: This notice publishes the Kaw Nation Alcohol Control 
Ordinance. The Ordinance regulates and controls the possession, sale, 
and consumption of liquor within the tribal lands. The tribal lands are 
located in Indian country and this Ordinance allows for possession and 
sale of alcoholic beverages within their boundaries. This Ordinance 
will increase the ability of the tribal government to control the 
community's 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 
services.

DATES: Effective Date: This Ordinance is effective on July 31, 2009.

FOR FURTHER INFORMATION CONTACT: Sherry Lovin, Tribal Government 
Services Officer, Southern Plains Regional Office, WCD Office Complex, 
PO Box 368, Anadarko, OK 73005, Telephone: (405) 247-1534, Fax (405) 
247-9240; or Elizabeth Colliflower, Office of Indian Services, 1849 C 
Street, NW., Mail Stop 4513-MIB, Washington, DC 20240, Telephone: (202) 
513-7640.

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 Kaw Nation Executive Council 
adopted its Alcohol Control Ordinance by Resolution No. 07-62 on 
November 27, 2007. The purpose of this Ordinance is to govern the sale, 
possession, and distribution of alcohol within tribal lands of the 
Tribe.
    This notice is published in accordance with the authority delegated 
by the Secretary of the Interior to the Assistant Secretary--Indian 
Affairs. I certify that this Alcohol Control Ordinance of the Kaw 
Nation Executive Council was duly adopted by the Council on November 
27, 2007.

    Dated: July 23, 2009.
Larry Echo Hawk,
Assistant Secretary--Indian Affairs.
    The Kaw Nation Alcohol Control Ordinance reads as follows:

Kaw Nation Alcohol Control Ordinance

Article I. Introduction

Section 1.1. Title

    This Ordinance shall be known as the ``Kaw Nation Alcohol Control 
Ordinance.''

Section 1.2. Authority

    This Ordinance is enacted pursuant to the Act of August 15, 1953. 
Public Law 83-277, 67 Stat. 586, 18 U.S.C. 1161 and Article II, Sec.  4 
of the Constitution of the Kaw Nation.

Section 1.3. Purpose

    The purpose of this Ordinance is to regulate and control the 
manufacture, distribution, possession, and sale of Alcohol on Tribal 
lands of the Kaw Nation. The enactment of this Ordinance will enhance 
the ability of the Kaw Nation to control all such alcohol-related 
activities within the jurisdiction of the Tribe and will provide an 
important source of revenue for the continued operation and 
strengthening of the Kaw Nation and the delivery of important 
governmental services.

Section 1.4. Application of Federal Law

    Federal law forbids the introduction, possession and sale of liquor 
in Indian Country (18 U.S.C. 1154 and other statutes), except when in 
conformity both with the laws of the State and the Tribe (18 U.S.C. 
1161). As such, compliance with this Ordinance shall be in addition to, 
and not a substitute for, compliance with the laws of the State of 
Oklahoma.

Section 1.5. Administration of Ordinance

    The Executive Council, through its powers vested under Article II, 
Sec.  4 of the Constitution of the Kaw Nation and this Ordinance, 
delegates to the Alcohol Regulatory Authority the authority to exercise 
all of the powers and accomplish all of the purposes as set forth in 
this Ordinance, which may include, but are not limited to, the 
following actions:
    A. Adopt and enforce rules and regulations for the purpose of 
effectuating this Ordinance, which includes the setting of fees, fines 
and other penalties;
    B. Execute all necessary documents; and
    C. Perform all matters and actions incidental to and necessary to 
conduct its business and carry out its duties and functions under this 
Ordinance.

Section 1.6. Sovereign Immunity Preserved

    A. The Tribe is immune from suit in any jurisdiction except to the 
extent that the Executive Council of the Kaw Nation expressly and 
unequivocally waives such immunity by approval of such written 
resolution.
    B. Nothing in this Ordinance shall be construed as waiving the 
sovereign immunity of the Kaw Nation or the Alcohol Regulatory 
Authority as an agency of the Kaw Nation.

[[Page 38221]]

Section 1.7. Applicability

    This Ordinance shall apply to all commercial enterprises located 
within Tribal lands consistent with applicable Federal Liquor Laws.

Section 1.8. Computation of Time

    Unless otherwise provided in this Ordinance, in computing any 
period of time prescribed or allowed by this Ordinance, 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. For 
the purposes of this Ordinance, the term ``legal holiday'' shall mean 
all legal holidays under Tribal or Federal law. All documents mailed 
shall be deemed served at the time of mailing.

Section 1.9. Liberal Construction

    Provisions of this Ordinance shall be liberally construed to 
achieve the purposes set forth, whether clearly stated or apparent from 
the context of the language used herein.

Section 1.10. Collection of Applicable Fees, Taxes, or Fines

    The Alcohol Regulatory Authority shall have the authority to 
collect all applicable and lawful fees, taxes, and or fines from any 
person or Licensee as imposed by this Ordinance. The failure of any 
Licensee to deliver applicable taxes collected on the sale of Alcoholic 
Beverages shall subject the Licensee to penalties, including, but not 
limited to the revocation of said License.

Article II. Declaration of Public Policy

Section 2.1. Matter of Special Interest

    The manufacture, distribution, possession, sale, and consumption of 
Alcoholic Beverages within the jurisdiction of the Kaw Nation are 
matters of significant concern and special interest to the Tribe. The 
Executive Council hereby declares that the policy of the Kaw Nation is 
to eliminate the problems associated with unlicensed, unregulated, and 
unlawful importation, distribution, manufacture, possession and sale of 
Alcoholic Beverages for commercial purposes and to promote temperance 
in the use and consumption of Alcoholic Beverages by increasing the 
Tribe's control over such activities on Tribal lands.

Section 2.2. Federal Law

    The introduction of Alcohol within the jurisdiction of the Tribe is 
currently prohibited by Federal law (18 U.S.C. 1154), except as 
provided for therein, and the Tribe is expressly delegated the right to 
determine when and under what conditions Alcohol, including Alcoholic 
Beverages, shall be permitted thereon (18 U.S.C. 1161).

Section 2.3. Need for Regulation

    The Tribe finds that the Federal Liquor Laws prohibiting the 
introduction, manufacture, distribution, possession, sale, and 
consumption of Alcoholic Beverages within the Tribal lands has proven 
ineffective and that the problems associated with same should be 
addressed by the laws of the Tribe, with all such business activities 
related thereto subject to the taxing and regulatory authority of the 
Alcohol Regulatory Authority.

Section 2.4. Geographic Locations

    The Tribe finds that the introduction, manufacture, distribution, 
possession, sale, and consumption of Alcohol, including Alcoholic 
Beverages, shall be regulated under this Ordinance only where such 
activity will be conducted within or upon Tribal lands.

Section 2.5. Definitions

    As used in this Ordinance, the following words shall have the 
following meanings unless the context clearly requires otherwise:
    A. ``Alcohol'' means the product of distillation of fermented 
liquid, whether or not rectified or diluted with water, including, but 
not limited to Alcoholic Beverages as defined herein, but does not mean 
ethyl or industrial alcohol, diluted or not, that has been denatured or 
otherwise rendered unfit for purposes of consumption by humans.
    B. ``Alcohol Regulatory Authority'' means the tribal entity 
authorized by the Executive Council to administer the Kaw Nation 
Alcohol Control Ordinance.
    C. ``Alcoholic Beverage(s)'' when used in this Ordinance means, and 
shall include any liquor, beer, spirits, or wine, by whatever name they 
may be called, and from whatever source and by whatever process they 
may be produced, and which contain a sufficient percent of alcohol by 
volume which, by law, makes said beverage subject to regulation as an 
intoxicating beverage under the laws of the State of Oklahoma. 
Alcoholic Beverages include all forms of ``low-point beer'' as defined 
under the laws of the State of Oklahoma.
    D. ``Applicant'' means any person who submits an application to the 
Alcohol Regulatory Authority for an Alcoholic Beverage License and who 
has not yet received such a License.
    E. ``Constitution'' means the Constitution of the Kaw Nation.
    F. ``Executive Council'' means the duly elected legislative body of 
the Kaw Nation authorized to act in and on all matters and subjects 
upon which the Tribe is empowered to act, now or in the future.
    G. ``Federal Liquor Laws'' means all laws of the United States of 
America that apply to or regulate in any way the introduction, 
manufacture, distribution, possession, or sale of any form of Alcohol, 
including, but not limited to 18 U.S.C. 1154 & 1161.
    H. ``Legal Age'' means twenty-one (21) years of age.
    I. ``License'' or ``Alcoholic Beverage License'' means a license 
issued by the Alcohol Regulatory Authority authorizing the 
introduction, manufacture, distribution, or sale of Alcoholic Beverages 
for commercial purposes under the provisions of this Ordinance.
    J. ``Licensee'' means a person or commercial enterprise that holds 
an Alcoholic Beverage License issued by the Alcohol Regulatory 
Authority and includes any employee or agent of the Licensee.
    K. ``Liquor store'' means any business, store, or commercial 
establishment at which Alcohol is sold and shall include any and all 
businesses engaged in the sale of Alcoholic Beverages, whether sold as 
packaged or by the drink.
    L. ``Manufacturer'' means any person engaged in the manufacture of 
Alcohol, including, but not limited to the manufacture of Alcoholic 
Beverages.
    M. ``Oklahoma Liquor License'' means any license or permit issued 
by the State of Oklahoma, including any agency, subdivision, or county 
thereof, regulating any form of Alcohol, including, but not limited to 
any form of Alcoholic Beverage. Any license or permit issued for the 
sale or distribution of ``low-point beer'', as defined under Oklahoma 
law, shall be considered an ``Oklahoma Liquor License'' under this 
Ordinance.
    N. ``Ordinance'' means this Kaw Nation Alcohol Control Ordinance, 
as hereafter amended.
    O. ``Package'' or ``packaged'' means the sale of any Alcoholic 
Beverage by delivery of same by a seller to a purchaser in any 
container, bag, or receptacle for consumption beyond the premises or 
location designated on the seller's License.
    P. ``Public place'' means and shall include any tribal, county, 
State, or Federal highways, roads, and rights-of-way; buildings and 
grounds used for school purposes; public dance halls and grounds 
adjacent thereto; public restaurants, buildings, meeting halls, hotels, 
theaters, retail stores, and

[[Page 38222]]

business establishments generally open to the public and to which the 
public is allowed to have unrestricted access; and all other places to 
which the general public has unrestricted right of access and that are 
generally used by the public. For the purpose of this Ordinance, 
``public place'' shall also include any privately owned business 
property or establishment that is designed for or may be regularly used 
by more persons other than the owner of the same, but shall not include 
the private, family residence of any person.
    Q. ``Sale(s)'', ``sell'', or ``sold'' mean the exchange, barter, 
traffic, furnishing, or giving away for commercial purpose of any 
Alcoholic Beverage by any and all means, by whatever name commonly used 
to describe the same, by any commercial enterprise or person to another 
person.
    R. ``Tribal Court'' means the Courts of the Kaw Nation, as 
established under the Constitution of the Kaw Nation, Article V, Sec.  
1.
    S. ``Tribal land(s)'' shall mean and reference the geographic area 
that includes all land included within the definition of ``Indian 
country'' as established and described by Federal law and that is under 
the jurisdiction of the Kaw Nation, including, but not limited to all 
lands held in trust by the Federal government, located within the same, 
as are now in existence or may hereafter be added to.
    T. ``Tribal law'' means the Constitution of the Kaw Nation and all 
laws, ordinances, codes, resolutions, and regulations now and hereafter 
duly enacted by the Tribe.
    U. ``Tribe'' shall mean the Kaw Nation.

Article III. Sales of Alcoholic Beverages

Section 3.1. Prohibition of the Unlicensed Sale of Alcoholic Beverages

    This Ordinance prohibits the introduction, manufacture, 
distribution, or sale of Alcoholic Beverages for commercial purposes, 
other than where conducted by a Licensee in possession of a lawfully 
issued License in accordance with this Ordinance. The Federal Liquor 
Laws are intended to remain applicable to any act or transaction that 
is not authorized by this Ordinance, and violators shall be subject to 
all penalties and provisions of any and all Federal and or Tribal laws.

Section 3.2. License Required

    A. Any and all sales of Alcoholic Beverages conducted upon Tribal 
lands shall be permitted only where the seller: (i) Holds a current 
Alcoholic Beverage License, duly issued by the Alcohol Regulatory 
Authority; and (ii) prominently and conspicuously displays the License 
on the premises or location designated on the license.
    B. A Licensee has the right to engage only in those activities 
involving Alcoholic Beverage expressly authorized by such License in 
accordance with this Ordinance.

Section 3.3. Sales for Cash

    All sales of Alcoholic Beverages conducted by any person or 
commercial enterprise upon Tribal lands shall be conducted on a cash-
only basis, and no credit for said purchase and consumption of same 
shall be extended to any person, organization, or entity, except that 
this provision does not prohibit the payment of same by use of credit 
cards acceptable to the seller (including but not limited to VISA, 
MasterCard, or American Express).

Section 3.4. Personal Consumption

    All sales of Alcoholic Beverages shall be for the personal use and 
consumption of the purchaser and or his/her guest(s) of Legal Age. The 
re-sale of any Alcoholic Beverage purchased within or upon Tribal lands 
by any person or commercial enterprise not licensed as required by this 
Ordinance is prohibited.

Section 3.5. Tribal Enterprises

    No employee or operator of a commercial enterprise owned by the 
Tribe shall sell or permit any person to open or consume any Alcoholic 
Beverage on any premises or location, or any premises adjacent thereto, 
under his or her control, unless such activity is properly licensed as 
provided in this Ordinance.

Article IV. Licensing

Section 4.1. Eligibility

    Only Applicants operating upon Tribal lands shall be eligible to 
receive a License for the sale of any Alcoholic Beverage under this 
Ordinance.

Section 4.2. Application Process

    A. The Alcohol Regulatory Authority may cause a License to be 
issued to any Applicant as is it may deem appropriate, but not contrary 
to the best interests of the Tribe and its Tribal members. Any 
Applicant that desires to receive any Alcoholic Beverage License, and 
that meets the eligibility requirements pursuant to this Ordinance, 
must apply to the Alcohol Regulatory Authority for the desired class of 
License. Any such person as may be empowered to make such application, 
shall: (i) Fully and accurately complete the application provided by 
the Alcohol Regulatory Authority; (ii) pay the Alcohol Regulatory 
Authority such application fee as may be required; and (iii) submit 
such application to the Alcohol Regulatory Authority for consideration.
    B. All application fees paid to the Alcohol Regulatory Authority 
are nonrefundable upon submission of any such application. Each 
application shall require the payment of a separate application fee.

Section 4.3. Term and Renewal of Licenses

    A. The term of all Licenses issued under this Ordinance shall be 
for a period not to exceed one (1) year from the original date of 
issuance and may be renewed thereafter on a year-to-year basis, in 
compliance with this Ordinance and any rules and/or regulations 
hereafter adopted by the Alcohol Regulatory Authority.
    B. Each License may be considered for renewal by the Alcohol 
Regulatory Authority annually upon the Licensee's submission of a new 
application and payment of all fees. Such renewal application shall be 
submitted to the Alcohol Regulatory Authority at least sixty (60) days 
and no more than ninety (90) days prior to the expiration of an 
existing License. If a License is not renewed prior to its expiration, 
the Licensee shall cease and desist all activity as permitted under the 
License, including the sale of any Alcoholic Beverages, until the 
renewal of such License is properly approved by the Alcohol Regulatory 
Authority.

Section 4.4. Classes of Licenses

    The Alcohol Regulatory Authority shall have the authority to issue 
the following classes of Alcoholic Beverage License:
    A. ``Retail On-Site General License'' authorizing the Licensee to 
sell Alcoholic Beverages at retail to be consumed by the buyer only on 
the premises or location designated in the License. This class of 
License includes, but is not limited to, hotels where Alcoholic 
Beverages may be sold for consumption on the premises and in the rooms 
of bona fide registered guests.
    B. ``Retail On-Site Beer and Wine License'' authorizing the 
Licensee to sell only beer and wine at retail to be consumed by the 
buyer only on the premises or location designated in the License. This 
class of License includes, but is not limited to, 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-Site General License'' authorizing the Licensee to 
sell

[[Page 38223]]

Alcoholic Beverages 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-Site Beer and Wine License'' authorizing the 
Licensee to sell only 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'' authorizing the Applicant to 
manufacture Alcoholic Beverages for the purpose of wholesale to 
retailers on or off Tribal lands, but not authorizing the sale of 
Alcoholic Beverages at retail.
    F. ``Temporary License'' authorizing the sale of Alcoholic 
Beverages on a temporary basis for a specific premises or location 
temporarily occupied by the Licensee for a picnic, social gathering, or 
similar occasion. A Temporary License is only valid for the limited 
time as designated on the License, which shall not exceed thirty (30) 
days, and may not be renewed upon expiration. A new application must be 
submitted for each such License.

Section 4.5. Application Form and Content

    An application for any License shall be made to the Alcohol 
Regulatory Authority and shall contain at least the following 
information:
    A. The name and address of the Applicant, including the names and 
addresses of all of the principal officers, directors, managers, and 
other employees with primary management responsibility related to the 
sale of Alcoholic Beverages;
    B. The specific area, location, and/or premise(s) for which the 
License is applied;
    C. The hours that the Applicant will sell the Alcoholic Beverages;
    D. For Temporary Licenses, the dates for which the License is 
sought to be in effect;
    E. The class of Alcoholic Beverage License applied for, as set 
forth in Section 4.4 herein;
    F. Whether the Applicant has an Oklahoma Liquor License;
    G. A sworn statement by the Applicant to the effect that none of 
the Applicant's officers, directors, managers, and or employees with 
primary management responsibility related to the sale of Alcoholic 
Beverages, have ever been convicted of a felony under the law of any 
jurisdiction, and have not violated and will not violate or cause or 
permit to be violated any of the provisions of this Ordinance; and
    H. The application shall be signed and verified by the Applicant 
under oath and notarized by a duly authorized representative.

Section 4.6. Public Hearing

    A. Upon receipt of an application for issuance or renewal of a 
License, and the payment of any fees required by the Alcohol Regulatory 
Authority, the Alcohol Regulatory Authority shall set the consideration 
of such application for a public hearing. Notice of the time and place 
of such hearing shall be mailed to the Applicant and provided to the 
public at least twenty (20) calendar days before the date of the 
hearing. Notice shall be mailed to the Applicant by prepaid U.S. mail 
at the address listed in the application. Notice shall be provided to 
the public by publication in a newspaper of general circulation within 
the jurisdiction of the Tribe. The notice published in the newspaper 
shall include: (i) The name of the Applicant; (ii) whether the hearing 
will consider a new License issuance or renewal of an existing License; 
(iii) the class of License applied for; and (iv) an address and general 
description of the area where the Alcoholic Beverages will be or have 
been sold.
    B. At such hearings, the Alcohol Regulatory Authority shall hear 
from any person who wishes to speak for or against the application, 
subject to the limitation in paragraph (C) of this section, and any 
other limitations herein.
    C. The Alcohol Regulatory Authority shall have the authority to 
place time limits on each speaker and limit or prohibit repetitive 
testimony.

Section 4.7. Action on the Application

    The Alcohol Regulatory Authority shall act on the matter within 
thirty (30) days of the conclusion of the public hearing. The Alcohol 
Regulatory Authority shall have the authority to deny, approve, or 
approve with conditions, the application, consistent with this 
Ordinance and the laws of the Tribe. Upon approval of an application, 
the Alcohol Regulatory Authority shall issue a License to the Applicant 
in a form to be approved from time to time by the Alcohol Regulatory 
Authority.

Section 4.8. Denial of License or Renewal

    An application for a new License or License renewal may be denied 
for one or more of the following reasons.
    A. The Applicant materially misrepresented facts contained in the 
application;
    B. The Applicant is currently not in compliance with this Ordinance 
or any other Tribal or Federal laws;
    C. Granting of the License, or renewal 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.
    E. A verdict or judgment has been entered against or a plea of nolo 
contendere has been entered by an Applicants' officer, director, 
manager, or any other employee with primary management responsibility 
related to the sale of Alcoholic Beverages, to any offense under 
Tribal, Federal, or State laws prohibiting or regulating the sale, use, 
possession or giving away of Alcoholic Beverages.

Section 4.9. Temporary Denial

    If the application is denied solely on the basis of Sec.  4.8(D), 
the Alcohol Regulatory Authority shall, within fourteen (14) days of 
such action, deliver in person or by mail a written notice of temporary 
denial to the Applicant. Such notice of temporary denial shall: (i) Set 
forth the reason(s) for denial; and (ii) state that the temporary 
denial will become a permanent denial if the reason(s) for denial are 
not corrected within fifteen (15) days following the mailing or 
personal delivery of such notice.

Section 4.10. Cure

    If an Applicant is denied a License, the Applicant may cure the 
deficiency and resubmit the application for consideration. Each re-
submission will be treated as a new application for License or renewal 
of a License, and the appropriate fee shall be due upon re-submission.

Section 4.11. Investigation.

    Upon receipt of an application for the issuance or renewal of a 
License, the Alcohol Regulatory Authority shall make a thorough 
investigation to determine whether the Applicant and the premises or 
location for which a License is applied for qualifies for a License, 
and whether the provisions of this Ordinance have been complied with. 
The Alcohol Regulatory Authority shall investigate all matters 
connected therewith which may affect the public health, welfare, and 
morals.

Section 4.12. Procedures for Appealing a Denial or Condition of 
Application

    Any Applicant for a License, or Licensee, who believes the denial 
of their License, request for renewal, or condition imposed on their 
License was wrongfully determined may appeal the decision to the 
Alcohol Regulatory Authority in accordance with Sec.  4.15 of

[[Page 38224]]

this Ordinance and with the Alcohol Regulatory Authority Rules and 
Regulations. The Alcohol Regulatory Authority's decision on the appeal 
shall be considered a final decision by the Kaw Nation and shall not be 
appealed to the Tribal Court.
    [As amended by Resolution 09-34 on March 20, 2009.]

Section 4.13. Revocation of License

    The Alcohol Regulatory Authority may initiate action to revoke a 
License whenever it is brought to the attention of the Alcohol 
Regulatory Authority that a Licensee:
    A. Has materially misrepresented facts contained in any License 
application;
    B. Is not in compliance with this Ordinance or any other Tribal or 
Federal laws material to the issue of Alcohol licensing;
    C. Failed to comply with any condition of a License, including 
failure to pay taxes on the sale of Alcoholic Beverages or failure to 
pay any fee required under this Ordinance;
    D. Has had a verdict, or judgment entered against, or has had a 
plea of nolo contendere entered by any of its officers, directors, 
managers or any employees with primary responsibility over the sale of 
Alcoholic Beverages, as to any offense under Tribal, Federal or State 
laws prohibiting or regulating the sale, use, or possession, of 
Alcoholic Beverages;
    E. Failed to take reasonable steps to correct objectionable 
conditions constituting a nuisance on the premises or location 
designated in the License, or any adjacent area under their control, 
within a reasonable time after receipt of a notice to make such 
corrections has been mailed or personally delivered by the Alcohol 
Regulatory Authority; or
    F. Has had their Oklahoma Liquor License suspended or revoked.

Section 4.14. Initiation of Revocation Proceedings

    Revocation proceedings may be initiated by either: (i) The Alcohol 
Regulatory Authority, on its own motion and through the adoption of an 
appropriate resolution meeting the requirements of this section; or 
(ii) by any person who files a complaint with the Alcohol Regulatory 
Authority. The complaint shall be in writing and signed by the maker. 
Both the complaint and resolution shall state facts showing that there 
are specific grounds under this Ordinance which would authorize the 
Alcohol Regulatory Authority to revoke the License(s). The Alcohol 
Regulatory Authority shall cause the consideration of such revocation 
to be set for a public hearing before the Alcohol Regulatory Authority 
on a date no later than thirty (30) days from the Alcohol Regulatory 
Authority's receipt of a complaint or adoption of a resolution. Notice 
of the time, date, and place of such hearing shall be provided to the 
Licensee and the public in the same manner as set forth in Sec.  4.6 
herein. The notice of such hearing shall state that the Licensee has 
the right to file a written response to the complaint or resolution 
with the Alcohol Regulatory Authority, verified under oath and signed 
by the Licensee, no later than ten (10) days prior to the hearing date.

Section 4.15. Revocation Hearing

    Any hearing held on any complaint shall be held under such rules 
and regulations as the Alcohol Regulatory Authority shall prescribe. 
Both the Licensee and the person filing the complaint shall have the 
right to present witnesses to testify and to present written documents 
in support of their positions to the Alcohol Regulatory Authority. The 
Alcohol Regulatory Authority shall render its decision within sixty 
(60) days after the date of the hearing. The decision of the Alcohol 
Regulatory Authority shall be considered a final decision by the Kaw 
Nation.
    [As amended by Resolution 09-34 on March 20, 2009.]

Section 4.16. Delivery of License

    Upon revocation of a License, the Licensee shall forthwith deliver 
their License to the Alcohol Regulatory Authority.

Section 4.17. Transferability of Licenses

    Alcoholic Beverage Licenses shall be issued to a specific Licensee 
for use at a single premises or location (business enterprise) and 
shall not be transferable for use by any other premises or location. 
Separate Licenses shall be required for each of the premises of any 
Licensee having more than one premises or location where the sale, 
distribution, or manufacture of Alcoholic Beverages may occur.

Section 4.18. Posting of License

    Every Licensee shall post and keep posted its License(s) in a 
prominent and conspicuous place(s) on the premises or location 
designated in the License. Any License posed on a premises or location 
not designated in such License shall not be considered valid and shall 
constitute a separate violation of this Ordinance.

Article V. Powers of Enforcement

Section 5.1. Alcohol Regulatory Authority

    In furtherance of this Ordinance, the Alcohol Regulatory Authority 
shall have exclusive authority to administer and implement this 
Ordinance and shall have the following powers and duties hereunder:
    A. To adopt and enforce rules and regulations governing the sale, 
manufacture, distribution, and possession of Alcoholic Beverages within 
the Tribal lands of the Kaw Nation;
    B. To employ such persons as may be reasonably necessary to perform 
all administrative and regulatory responsibilities of the Alcohol 
Regulatory Authority hereunder. All such employees shall be employees 
of the Tribe;
    C. To issue Licenses permitting the sale, manufacture, 
distribution, and possession of Alcoholic Beverages within the Tribal 
lands;
    D. To give reasonable notice and to hold hearings on violations of 
this Ordinance, and for consideration of the issuance or revocation of 
Licenses hereunder;
    E. To deny applications and renewals for Licenses and revoke issued 
Licenses as provided in this Ordinance;
    F. To bring such other actions as may be required to enforce this 
Ordinance;
    G. To prepare and deliver such reports as may be required by law or 
regulation; and
    H. To collect taxes, fees, and penalties as may be required, 
imposed, or allowed by law or regulation, and to keep accurate books, 
records, and accounts of the same.

Section 5.2. Right of Inspection

    Any premises or location of any commercial enterprise licensed to 
manufacture, distribute, or sell Alcoholic Beverages pursuant to this 
Ordinance shall be open for inspection by the Alcohol Regulatory 
Authority for the purpose of insuring the compliance or noncompliance 
of the Licensee with all provisions of this Ordinance and any 
applicable Tribal laws or regulations.

Section 5.3. Limitation on Powers

    In the exercise of its powers and duties under this Ordinance, 
agents, employees, or any other affiliated persons of the Alcohol 
Regulatory Authority shall not, whether individually or as a whole:
    A. Accept any gratuity, compensation, or other thing of value from 
any Alcoholic Beverage wholesaler, retailer, or distributor, or from 
any Applicant or Licensee; or

[[Page 38225]]

    B. Waive the sovereign immunity of the Kaw Nation, or of any 
agency, commission, or entity thereof without the express written 
consent by resolution of the Executive Council of the Kaw Nation.

Article VI. Taxes

Section 6.1. Excise Tax

    There is hereby levied and shall be collected a tax on each retail 
and or wholesale sale of Alcoholic Beverages on Tribal lands in the 
amount of one percent (1%) of the wholesale or retail sales price. All 
such taxes collected by a Licensee from the sale of such Alcoholic 
Beverages shall be paid to the Alcohol Regulatory Authority quarterly. 
The Alcohol Regulatory Authority shall deposit such funds into a 
separate account under exclusive authority of the Alcohol Regulatory 
Authority. This tax rate may be adjusted as requested by the Alcohol 
Regulatory Authority and approved by written resolution of the 
Executive Council.

Section 6.2. Taxes Due

    All taxes collected on the sale of Alcoholic Beverages under this 
Ordinance are due to the Alcohol Regulatory Authority from a Licensee 
on the 15th day of the month following the end of the calendar quarter 
for which taxes are due.

Section 6.3. Delinquent Taxes

    Past due taxes shall accrue interest at the rate of two percent 
(2%) per month until paid.

Section 6.4. Reports

    Along with the payment of taxes imposed hereby, the Licensee shall 
submit a quarterly report and accounting of all income from the sale, 
distribution, and or manufacture of Alcoholic Beverages within Tribal 
lands, and for all taxes collected under this Ordinance.

Section 6.5. Audit

    All Licensees are subject to the review or audit of their books and 
records relating to the sale of Alcoholic Beverages hereunder by the 
Alcohol Regulatory Authority. Such review or audit may be performed 
periodically by Alcohol Regulatory Authority's agents or employees at 
such times as in the opinion of the Alcohol Regulatory Authority such 
review or audit is appropriate to the proper enforcement of this 
Ordinance.

Article VII. Rules, Regulations, and Enforcement

Section 7.1. Manufacture, Sale, or Distribution Without License

    Any person who manufactures, distributes, sells, or offers for sale 
or distribution, any Alcoholic Beverage in violation of this Ordinance, 
or who operates any commercial enterprise on Tribal lands that has 
Alcoholic Beverages for sale or in their possession without a proper 
License properly posted, as required in Section 4.18, shall be in 
violation of this Ordinance.

Section 7.2. Unlawful Purchase

    Any person who purchases any Alcoholic Beverage on Tribal lands 
from a person or commercial enterprise that does not have a License to 
manufacture, distribute, or sell Alcoholic Beverages properly posted 
shall be in violation of this Ordinance.

Section 7.3. Intent To Sell

    Any person who keeps, or possesses, or causes another to keep or 
possess, upon his person or any premises within his control, any 
Alcoholic Beverage, with the intent to sell or to distribute the same 
contrary to the provisions of this Ordinance, shall be in violation of 
this Ordinance.

Section 7.4. Sale to Intoxicated Person

    Any person who knowingly sells or serves an Alcoholic Beverage to a 
person who is visibly intoxicated shall be in violation of this 
Ordinance.

Section 7.5. Public Conveyance

    Any person engaged in the business of carrying passengers for hire, 
and every agent, servant, or employee of such person, who shall 
knowingly permit any person to consume any Alcoholic Beverage in any 
such public conveyance shall be in violation of this Ordinance.

Section 7.6. Age of Consumption

    No person under the age of twenty-one (21) years may possess or 
consume any Alcoholic Beverage on Tribal lands, and any such possession 
or consumption shall be in violation of this Ordinance.

Section 7.7. Serving Underage Person

    No person shall sell or serve any Alcoholic Beverage to a person 
under the age of twenty-one (21) or permit any such person to possess 
or consume any Alcoholic Beverages on the premises or on any premises 
under their control. Any Licensee violating this section shall be 
guilty of a separate violation of this Ordinance for each and every 
Alcoholic Beverage sold or served and or consumed by such an underage 
person.

Section 7.8. False Identification

    Any person who purchases or who attempts to purchase any Alcoholic 
Beverage through the use of false, or altered identification that 
falsely purports to show such person to be over the age of twenty-one 
(21) years shall be in violation of this Ordinance.

Section 7.9. Documentation of Age

    Any seller or server of any Alcoholic Beverage shall be required to 
request proper and satisfactory documentation of age of any person who 
appears to be thirty-five (35) years of age or younger. When requested 
by a seller or server of Alcoholic Beverages, every person shall be 
required to present proper and satisfactory documentation of the 
bearer's age, signature, and photograph prior to the purchase or 
delivery of any Alcoholic Beverage. For purposes of this Ordinance, 
proper and satisfactory documentation shall include one or more of the 
following:
    A. Drivers License or personal identification card issued by any 
State department of motor vehicles or tribal or Federal government 
agency;
    B. United States active duty military credentials; or
    C. Passport.
    Any seller, server, or person attempting to purchase an Alcoholic 
Beverage, who does not comply with the requirements of this section 
shall be in violation of this Ordinance and subject to civil penalties, 
as determined by the Alcohol Regulatory Authority.

Section 7.10. General Penalties

    Any person or commercial enterprise determined by the Alcohol 
Regulatory Authority to be in violation of this Ordinance, including 
any lawful regulation promulgated pursuant thereto, shall be subject to 
a civil penalty of not more than Five Hundred Dollars ($500.00) for 
each such violation, except as provided herein. The Alcohol Regulatory 
Authority may adopt by resolution a separate written schedule for fines 
for each type of violation, taking into account the seriousness and 
threat the violation may pose to the general public health and welfare. 
Such schedule may also provide, in the case of repeated violations, for 
imposition of monetary penalties greater than the Five Hundred Dollars 
($500.00) per violation limitation set forth above. The civil penalties 
provided for herein shall be in addition to any criminal penalties that 
may be imposed under any other Tribal, Federal, or State laws.

[[Page 38226]]

Section 7.11. Initiation of Action

    Any violation of this Ordinance shall constitute a public nuisance. 
The Alcohol Regulatory Authority may initiate and maintain an action in 
Tribal Court or any court of competent jurisdiction to abate and 
permanently enjoin any nuisance declared under this Ordinance. Any 
action taken under this section shall be in addition to any other civil 
penalties provided for in this Ordinance. The Alcohol Regulatory 
Authority shall not be required to post any form of bond in such 
action.

Section 7.12. Contraband; Seizure; Forfeiture

    A. All Alcoholic Beverages held, owned, or possessed within Tribal 
lands by any person, commercial enterprise, or Licensee operating in 
violation of this Ordinance are hereby declared to be contraband and 
subject to seizure and forfeiture to the Tribe.
    B. Seizure of contraband as defined in this Ordinance shall be done 
by the Alcohol Regulatory Authority, with the assistance of law 
enforcement upon request, and all such contraband seized shall be 
inventoried and maintained by the Alcohol Regulatory Authority pending 
a final order of the Alcohol Regulatory Authority. The owner of the 
contraband seized may alternatively request that the contraband seized 
be sold and the proceeds received there from be maintained by law 
enforcement pending a final order of the Alcohol Regulatory Authority. 
The proceeds from such a sale are subject to forfeiture in lieu of the 
seized contraband.
    C. Within ten (10) days following the seizure of such contraband, a 
hearing shall be held by the Alcohol Regulatory Authority, 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.
    D. Notice of the hearing of at least five (5) days shall be given 
to the person from whom the property was seized and the owner, if 
known. If the owner is unknown, notice of the hearing shall be posted 
at the place where the contraband was seized and at other public places 
on Tribal lands. The notice shall describe the property seized, and the 
time, place, and cause of seizure, and list the name and place of 
residence, if known, of the person from whom the property was seized. 
If upon the hearing, the evidence warrants, or, if no person appears as 
a claimant, the Alcohol Regulatory Authority shall thereupon enter a 
judgment of forfeiture, and all such contraband shall become the 
property of the Kaw Nation. If upon the hearing the evidence does not 
warrant forfeiture, the seized property shall be immediately returned 
to the owner. The decision of forfeiture may be appealed in accordance 
with the procedures as set forth in Sec.  4.15 and the appeal decision 
of the Alcohol Regulatory Authority shall be considered a final 
decision by the Kaw Nation. Further such seizures as described in this 
section shall not exceed an amount of $5,000.00 as set forth in 25 
U.S.C. 1302(7).
    [As amended by Resolution 09-34 on March 20, 2009.]

Article VIII. Nuisance and Abatement

Section 8.1. Nuisance

    Any room, house, building, vehicle, structure, premises, or other 
location where Alcoholic Beverages are sold, manufactured, distributed, 
bartered, exchanged, given away, furnished, or otherwise possessed or 
disposed of in violation of this Ordinance, or of any other Tribal, 
Federal, or State laws related to the transportation, possession, 
distribution or sale of Alcoholic Beverages, and including all property 
kept therein, or thereon, and used in, or in connection with such 
violation is hereby declared to be a nuisance upon any second or 
subsequent violation of the same.

Section 8.2. Action To Abate Nuisance

    Upon a determination by the Alcohol Regulatory Authority that any 
such place or activity is a nuisance under any provision of this 
Ordinance, the Tribe or the Alcohol Regulatory Authority may bring a 
civil action in the Tribal Court to abate and to perpetually enjoin any 
such activity declared to be a nuisance. Such injunctive relief may 
include a closure of any business or other use of the property for up 
to one (1) year from the date of the such injunctive relief, or until 
the owner, lessee or tenant shall: (i) Give bond of no less than 
Twenty-Five Thousand dollars ($25,000) to be held by the Alcohol 
Regulatory Authority and be conditioned that any further violation of 
this Ordinance or other Tribal laws will result in the forfeiture of 
such bond; and (ii) pay of all fines, costs and assessments against 
him/her/it. If any condition of the bond is violated, the bond shall be 
forfeit and the proceeds recoverable by the Alcohol Regulatory 
Authority through an order of the Tribal Court. Any action taken under 
this section shall be in addition to any other civil penalties provided 
for in this Ordinance.

Article IX. Revenue and Reporting

Section 9.1. Use and Appropriation of Revenue Received

    All fees, taxes, payments, fines, costs, assessments, and any other 
revenues collected by the Alcohol Regulatory Authority under this 
Ordinance, from whatever sources, shall be expended first for the 
administrative costs incurred in the administration and enforcement of 
this Ordinance. Any excess funds shall be subject to and available for 
appropriation by the Alcohol Regulatory Authority to the Tribe for 
essential governmental and social services related to drug and alcohol 
education, counseling, treatment, and law enforcement.

Section 9.2. Audit

    The Alcohol Regulatory Authority and its handling of all funds 
collected under this Ordinance is subject to review and audit by the 
Tribe as part of the annual financial audit of the Alcohol Regulatory 
Authority.

Section 9.3. Reports

    The Alcohol Regulatory Authority shall submit to the Executive 
Council a quarterly report and accounting of all fees, taxes, payments, 
fines, costs, assessments, and all other revenues collected and 
expended pursuant to this Ordinance.

Article X. Miscellaneous

Section 10.1. Severability

    If any provision or application of this Ordinance is found invalid 
and or unenforceable by a court of competent jurisdiction, such 
determination shall not be held to render ineffectual any of the 
remaining provisions or applications of this Ordinance not specifically 
identified thereby, or to render such provision to be inapplicable to 
other persons or circumstances.

Section 10.2. Construction

    Nothing in this Ordinance shall be construed to diminish or impair 
in any way the rights or sovereign powers of the Kaw Nation.

Section 10.3. Effective Date

    This Ordinance shall be effective upon: (i) Adoption by written 
resolution of the Executive Council; (ii) certification by the 
Secretary of the Interior; and (iii) publication in the Federal 
Register. This Ordinance shall be recorded in the office of the Clerk 
of the Tribal Court upon publication in the Federal Register.

[[Page 38227]]

Section 10.4. Prior Law Repealed

    Any and all prior enactments of the Kaw Nation that are 
inconsistent with the provisions of this Ordinance are hereby 
rescinded.

Section 10.5. Amendment

    This Ordinance may only be amended by written resolution approved 
by the Executive Council.

[FR Doc. E9-18294 Filed 7-30-09; 8:45 am]
BILLING CODE 4310-4J-P