[Federal Register Volume 62, Number 39 (Thursday, February 27, 1997)]
[Notices]
[Pages 8985-8989]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4944]


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DEPARTMENT OF THE INTERIOR

Sac and Fox Nation of Missouri Liquor and Beer Act

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 DM 8, and in accordance with the Act of August 
15, 1953, 67 Stat. 586, 18 U.S.C. Sec. 1161, as interpreted by the 
Supreme Court in Rice v. Rehner, 463 U.S. 713 (1983). I certify that 
the Sac and Fox Nation of Missouri Liquor and Beer Act was duly adopted 
by Resolution R-53-96 of the Sac and Fox Nation of Missouri Tribal 
Council on September 27, 1996. The ordinance provides for the 
regulation, sale, possession and use of alcoholic liquor and beer 
within the Tribe's jurisdiction.

DATES: This ordinance is effective as of February 27, 1997.

FOR FURTHER INFORMATION CONTACT: Jerry Cordova, Office of Tribal 
Services, 1849 C Street, N.W., MS 4603 MIB, Washington, D.C. 20240-
4001; telephone (202) 208-4401.

SUPPLEMENTARY INFORMATION: The Sac and Fox Nation of Missouri Liquor 
and Beer Ordinance shall read as follows:

Sac and Fox Liquor and Beer Act

Section 1. Title and Purpose

    This Title shall be known as the Sac and Fox Liquor and Beer Act 
(``Act''). This law is enacted to regulate the sale and distribution of 
liquor and beer products on all properties under the jurisdiction of 
the Sac and Fox Nation of Missouri, and to generate revenue to fund 
needed tribal programs and services.

Section 2. Authority

    This Act is enacted pursuant to Article V (f) and (i) of the 
Constitution of the Sac and Fox Nation of Missouri in Kansas and 
Nebraska and the Act of August 15, 1953 (Pub. L. 83-277, 67 Stat. 588, 
18 U.S.C. Sec. 1161).

Section 3. Definitions

    Unless otherwise required by the context, the following words and

[[Page 8986]]

phrases shall have the designated meanings:
    (a) ``Nation'' or ``Tribe'' shall mean the Sac and Fox Nation of 
Missouri in Kansas and Nebraska.
    (b) ``Tribal Council'' shall mean the Tribal Council of the Sac and 
Fox Nation of Missouri as constituted by Article IV of the Constitution 
of the Sac and Fox Nation of Missouri in Kansas and Nebraska.
    (c) ``Commission'' shall mean the Sac and Fox Liquor and Beer 
Control Commission established pursuant to Section 201 of this Act.
    (d) ``Sac and Fox Indian Country'' shall mean Indian Country as 
defined by 18 U.S.C. Sec. 1151 subject to the jurisdiction of the Sac 
and Fox Nation of Missouri, including but not limited to, any lands and 
waters held in trust by the Federal Government within the jurisdiction 
of the Sac and Fox Nation of Missouri.
    (e) ``Sale'' shall mean the transfer, exchange or barter, in any or 
by any means whatsoever, for a consideration, by any person, 
association, partnership, or corporation, of liquor or beer products.
    (f) ``Wholesale Price'' shall mean the established price for which 
liquor and beer products are sold to the Sac and Fox Nation of Missouri 
or any Operator by the manufacturer or distributor, exclusive of any 
discount or other reduction.
    (g) ``Alcohol'' is that substance known as ethyl alcohol, hydrated 
oxide of ethyl, or spirit of wine, which is produced by the 
fermentation or distillation of grain, starch, molasses or sugar, or 
other substances including all dilutions and mixtures of this 
substance.
    (h) ``Liquor'' shall mean the four varieties of liquor, commonly 
referred to as alcohol, spirits, wine, and beer in excess of 5% percent 
of alcohol, and all fermented, spirituous, vinous or malt liquor or any 
other intoxicating liquid, solid, semi-solid or other substance 
patented or not, containing alcohol, spirits, wine, or beer in excess 
of 5% percent of alcohol, and intended for oral consumption.
    (i) ``Beer'' shall mean any beverage obtained by the alcohol 
fermentation of an infusion or decoction of pure hops, or pure extract 
of hops, and malt and sugar in pure water containing not more than 5% 
percent of alcohol by weight.
    (j) ``Liquor Outlet'' shall mean a tribally licensed retail sale 
business selling liquor within the Sac and Fox Indian Country, 
including all related and associated facilities under the control of 
the Licensee. Moreover, where a Licensee's business is carried on as 
part of the operation of an entertainment or recreation facility, the 
``Liquor Outlet'' shall be deemed to include the entire entertainment 
or recreation facility and associated areas.
    (k) ``Beer Outlet'' shall mean a tribally licensed retail sale 
business selling beer within the Sac and Fox Indian Country, including 
all related and associated facilities under the control of the 
Licensee. Moreover, where a Licensee's business is carried on as part 
of the operation of an entertainment or recreation facility, the ``Beer 
Outlet'' shall be deemed to include the entire entertainment or 
recreation facility and associated areas.
    (l) ``Operator'' or ``Licensee'' shall mean any person twenty-one 
(21) years of age or older, properly licensed by the Nation to operate 
a liquor and/or beer outlet.

Chapter One--Prohibition

Section 101. General Prohibition

    It shall be unlawful to buy, sell, give away, consume, furnish, or 
possess any liquor or beer or product containing alcohol for ingestion 
by human beings, or to appear or be found in a place where liquor or 
beer are sold and/or consumed except as allowed by the Sac and Fox 
Liquor and Beer Act and regulations promulgated thereunder.

Section 102. Possession for Personal Use

    Possession of liquor or beer for personal use by persons over the 
age of 21 years shall, unless otherwise prohibited by Federal or tribal 
law or regulation, be lawful within the Sac and Fox Indian Country, so 
long as such liquor or beer was lawfully purchased from an 
establishment duly licensed to sell such beverages, whether on or off 
the Sac and Fox Indian Country and consumed within a private residence 
or location, or at a location or facility specifically licensed for the 
public consumption of liquor or beer.

Chapter Two--Licensing

Section 201. Licensing of Liquor and Beer Outlets

    The Tribal Council shall be the Liquor and Beer Control Commission. 
The Commission is empowered to:
    (a) Administer this Act by exercising general control, management, 
and supervision of all liquor and beer sales, places of sale and sales 
outlets as well as exercising all powers necessary to accomplish the 
purposes of this Act.
    (b) Adopt and enforce rules and regulations in furtherance of the 
purpose of this Act and in the performance of its administrative 
functions.

Section 202. Application for Liquor and Beer Outlet Licenses

    (a) Application. Any person twenty-one (21) years of age and older, 
may apply to the Commission for a liquor and/or beer outlet license.
    (b) Licensing Requirements. The person applying for such permit 
must make a showing once a year, and must satisfy the Commission that:
    (1) he/she is a person of good moral character;
    (2) he/she has never been convicted of violating any of the laws 
prohibiting the traffic in any spirituous, vinous, fermented or malt 
liquors, or of any of the gambling laws of the Nation, state, or any 
other tribe or state of the United States, within three (3) years 
immediately preceding the date of his/her petition;
    (3) he/she has not violated the laws commonly called ``prohibition 
laws'';
    (4) he/she has not had any permit or license to sell non-
intoxicating liquors revoked by any governmental authority within the 
previous twelve (12) months.
    (c) Processing of Application. The Commission's Secretary shall 
receive and process applications and be the official representative of 
the Nation and Commission in matters relating to receipt of 
applications, liquor and beer excise tax collections and related 
matters. If the Commission or its authorized representative is 
satisfied that the applicant is suitable and a responsible person, the 
Commission or its authorized representative may issue a license for the 
sale of liquor and/or beer products.
    (d) Application Fee. Each application shall be accompanied by an 
application fee to be set by regulation of the Commission.
    (e) Discretionary Licensing. Nothing herein shall be deemed to 
create a duty or requirement to issue a license. Issuance of licenses 
is discretionary upon the Commission's determination of the best 
interests of the Sac and Fox Nation, and the license grants a 
privilege, but not a property right, to sell liquor and/or beer within 
the jurisdiction of the Sac and Fox Nation at the licensed outlet(s).

Section 203. Liquor and Beer Outlet Licenses

    (a) Upon approval of an application, the Commission shall issue the 
applicant a liquor and/or beer outlet license, valid for one year from 
the date of issuance, which shall entitle the Operator to establish and 
maintain only the type of outlet being permitted. This license shall 
not be transferrable. The Licensee must properly and publicly

[[Page 8987]]

display the license in the place of business. It shall be renewable at 
the discretion of the Commission by the submission of the Licensee of a 
subsequent application form and payment of application fee as provided 
in Section 202(d).

Section 204. Other Business by Operator

    An Operator may conduct another business simultaneously with 
managing a liquor and/or beer outlet; PROVIDED, if such other business 
is in any manner affiliated or related to the liquor and/or beer outlet 
it must be approved by majority vote of the Commission prior to 
initiation. Said other business may be conducted on the same premise as 
a liquor and/or beer outlet, but the Operator shall be required to 
maintain separate books of account for the other business.

Section 205. Revocation of Operator's License

    (a) Failure of an Operator to abide by the requirements of this Act 
and any additional regulations or requirements imposed by the 
Commission will constitute grounds for revocation of the Operator's 
license as well as enforcement of the penalties provided in Section 601 
of this Act.
    (b) Upon determining that any person licensed by the Sac and Fox 
Nation to sell liquor or beer is, for any reason, no longer qualified 
to hold such license or reasonably appears to have violated any terms 
of the license or tribal regulations, including failure to pay taxes 
when due and owing, or have been found by any forum of competent 
jurisdiction, including the Commission, to have violated the terms of a 
tribal or state license or of any provision of this Act, the 
Chairperson of the Commission shall immediately serve written notice 
upon the Licensee directing that he/she show cause within ten days why 
his or her license should not be revoked or restricted. The notice 
shall state the grounds relied upon for the proposed revocation or 
restriction.
    (c) If the Licensee fails to respond to the notice within ten (10) 
days of service, the Chairperson may issue an order revoking the 
license or placing such restrictions on the license as the Chairperson 
deems appropriate, effective immediately. The Licensee may, within the 
10 day period, file with the Office of the Chairperson a written 
response and request for hearing before the Commission.
    (d) At the hearing, the Licensee may present evidence and argument 
directed at the issue of whether or not the asserted grounds for the 
proposed revocation or restriction are in fact true, and whether such 
grounds justify the revocation or modifications of the license. The 
Nation may present other evidence as it deems appropriate.
    (e) The Commission after considering all of the evidence and 
arguments, shall issue a written decision either upholding the license, 
revoking the license or imposing some lessor penalty (such as a 
temporary suspension or a fine), and such decision shall be final and 
conclusive.
    (f) The Commission's final decision, upon posting a bond with the 
Court sufficient to cover the Commission's final hearing assessment or 
ruling, may be appealed by Licensee to the Sac and Fox Court. Any 
findings of fact of the Commission are conclusive upon the Court unless 
clearly contrary to law. The purposes of Court review are not to 
substitute the Court's finding of facts or opinion for the 
Commission's, but to guarantee due process of law. If the Court should 
rule for the appealing party, the Court may order a new hearing giving 
such guidance for the conduct of such as it deems necessary for a fair 
hearing. No damage or monies may be awarded against the Commission, its 
members, nor the Nation and its agents and employees in such an action.

Chapter Three--Liquor and Beer Sales and Transportation

Section 301. Sales by Liquor and Beer Wholesalers and Transport of 
Liquors and Beers Upon Sac and Fox Indian Country

    (a) Right of Commission to Scrutinize Suppliers. The Operator of 
any licensed outlet shall keep the Commission informed, in writing, of 
the identity of the suppliers and/or wholesalers who supply or are 
expected to supply liquor and/or beer stocks to the outlet(s). The 
Commission may, at its discretion, limit or prohibit the purchases of 
said stock from a supplier or wholesaler for the following reasons: 
non-payment of Tribal taxes; bad business practices; or sale of 
unhealthy supplies. A ten day notice of stopping purchases (``Stop 
Purchase Order'') will be given by the Commission whenever purchases 
from a supplier are to be discontinued unless there is a health 
emergency, in which case the Stop Purchase order may take effect 
immediately.
    (b) Freedom of Information from Suppliers. Operators shall in their 
purchase of stock and in their business relations with suppliers 
cooperate with and assist the free flow of information and data to the 
Commission from suppliers relating to the sales and business 
arrangements between the suppliers and Operators. The Commission may, 
at its discretion, require the receipts from the suppliers of all 
invoices, bills of lading, billings or other documentary receipts of 
sales to the Operators. All records shall be kept according to Section 
302(g) of this Act.

Section 302. Sales by Retail Operators

    (a) Commission Regulations. The Commission shall adopt regulations 
which shall supplement these laws and facilitate their enforcement. 
These regulations shall include prohibitions on sales to minors, where 
liquor and/or beer may be consumed, persons not allowed to purchase 
liquor and/or beer, hours and days when outlets may be open for 
business, and other appropriate matters and controls.
    (b) Sales to Minors. No person shall give, sell, or otherwise 
supply liquor and/or beer to any person under twenty-one (21) years of 
age either for his or her own use or for the use of his or her parents 
or for the use of any other person.
    (c) Consumption of Liquor and/or Beer upon Licensed Premises. No 
Operator shall permit any person to open or consume liquor or beer on 
his or her premises or any premises adjacent thereto and in his or her 
control until the Commission allows the consumption of liquor and/or 
beer and identifies where liquor and/or beer may be consumed on Sac and 
Fox Indian Country.
    (d) Conduct on Licensed Premises.
    (1) No Operator shall be disorderly, boisterous, or intoxicated on 
the licensed premises or on any public premises adjacent thereto which 
are under his or her control, nor shall he or she permit any 
disorderly, boisterous, or intoxicated person to be thereon; nor shall 
he or she use or allow the use of profane or vulgar language thereon.
    (2) No Operator shall permit suggestive, lewd, or obscene conduct 
or acts on his or her premises. For the purpose of this section, 
suggestive, lewd or obscene acts or conduct shall be those acts or 
conduct identified as such by the laws of the Nation and/or of the 
State of Kansas.
    (e) Employment of Minors. No person under the age of twenty-one 
(21) years of age shall be employed in any service in connection with 
the sale or handling of liquor, either on a paid or voluntary basis.
    (f) Operator's Premises Open to Commission Inspection. The premises 
of all Operators, including vehicles used in connection with liquor 
and/or beer sales, shall be open during business hours and at all other 
reasonable times

[[Page 8988]]

to inspection by the Commission or its designated representatives.
    (g) Operator's Records. The originals or copies of all sales slips, 
invoices, and other memoranda covering all purchases of liquor and/or 
beer by Operators shall be kept on file in the retail premises of the 
Operator purchasing the sale for at least five (5) years after each 
purchase, and shall be filed separately and kept apart from all other 
records, and as nearly as possible, shall be filed in consecutive order 
and each month's records kept separate so as to render the same readily 
available for inspection and checking. All canceled checks, bank 
statements and books of accounting covering or involving the purchase 
of liquor and/or beer, and all memoranda, if any, showing payment of 
money for liquor and/or beer other than by check, shall be likewise 
preserved for availability for inspection and checking.
    (h) Records Confidential. All records of the Commission showing the 
purchase of liquor by any individual or group shall be confidential and 
shall not be inspected except by members of the Commission or its 
authorized representatives.
    (i) Conformity with State Law. Operators shall comply with the 
State of Kansas liquor and beer laws to the extent required by 18 
U.S.C. Sec. 1161. However, the Nation shall have the fullest 
jurisdiction allowed under Federal law over the sale of liquor and beer 
products, and related products or activities, within the boundaries of 
Sac and Fox Indian Country.

Section 303. Transportation through the Reservation not Affected

    Nothing herein shall pertain to the otherwise lawful transportation 
of liquor or beer through the Sac and Fox Indian Country by persons 
remaining upon public highways and where such beverages are not 
delivered or sold or offered for sale to anyone within the Sac and Fox 
Indian Country.

Chapter Four--Taxation and Audits

Section 401. Excise Tax Imposed upon Distribution of Liquor

    (a) General Taxing Authority. The Commission shall have authority, 
as provided by Tribal law, to assess and collect tax on sales of liquor 
and beer products to the consumer or purchaser. The tax shall be 
collected and paid to the Commission upon all liquor and beer products 
sold within the jurisdiction of the Nation. The Tribal Council may 
establish differing tax rates for any given class of merchandise, which 
shall be paid prior to the time of retail sale and delivery thereof.
    (b) Added to Retail Price. An excise tax, to be set by the Tribal 
Council, on the wholesale price shall be added to the retail selling 
price of liquor and beer products sold to the ultimate consumer or 
purchaser. All taxes paid pursuant to this Act shall be conclusively 
presumed to be direct taxes on the retail consumer precollected for the 
purposes of convenience and facility only.
    (c) Within 72 hours after receipt of any liquor or beer by any 
wholesaler or retailer subject to this Act, a tribal tax stamp shall be 
securely affixed thereto denoting the tribal tax thereon. Retailers or 
sellers of liquor and/or beer within the Nation's jurisdiction may buy 
and sell or have in their possession only liquor and/or beer which have 
the tribal tax stamp affixed to each package.

Section 402. Audits and Inspection

    (a) All of the books and other business records of the outlet shall 
be available for inspection and audit by the Commission or its 
authorized representative during business hours and at all other 
reasonable times.
    (b) Bond for Excise Tax. The excise tax together with reports on 
forms to be supplied by the Commission, shall be remitted to the 
Commission on a monthly basis unless otherwise specified in writing by 
the Commission. The Operator shall furnish a satisfactory bond to the 
Commission in an amount to be specified by the Commission guaranteeing 
his or her payment of excise taxes.

Chapter Five--Liability, Insurance and Sovereign Immunity

Section 501. Liability for Bills

    The Nation and the Commission shall have no legal responsibility 
for any unpaid bills owed by a liquor and/or beer outlet to a wholesale 
supplier or any other person.

Section 502. Tribal Liability and Credit

    (a) Unless explicitly authorized by tribal statute, Operators are 
forbidden to represent or give the impression to any supplier or person 
with whom he or she does business that he or she is an official 
representative of the Nation or the Commission authorized to pledge 
tribal credit or financial responsibility for any of the expenses of 
his or her business operation. The Operator shall hold the Nation and 
the Commission harmless from all claims and liability of whatever 
nature. The Commission shall revoke an Operator's outlet license(s) if 
said outlet(s) is not operated in a businesslike manner or if it does 
not remain financially solvent or does not pay its operating expenses 
and bills before they become delinquent.
    (b) Insurance. The Operator shall maintain at his or her expense 
adequate insurance covering liability, fire, theft, vandalism, and 
other insurable risks. The Commission may establish as a condition of 
any license, the required insurance limits and any additional coverage 
deemed advisable, proof of which shall be filed with the Commission.

Section 503. Sovereign Immunity Preserved

    Nothing in this statute shall be construed as a waiver or 
limitation of the sovereign immunity of the Sac and Fox Indian Nation 
or its agencies, nor their officers or employees.

Chapter Six--Violations-Penalties

Section 601. Violations-Penalties

    (a) Any person who violates this Act or elicits, encourages, 
directs or causes to be violated these laws shall be guilty of an 
offense and subject to a fine. Failure to have a current, valid or 
proper license shall not constitute a defense to an alleged violation 
of the licensing laws or regulations. The Sac and Fox Nation Court 
system will have jurisdiction over the proceeding.
    1. Any person convicted of committing any violation of this Act 
shall be subject to punishment of up to one year imprisonment and/or a 
fine not to exceed Five Thousand Dollars ($5,000.00).
    2. Additionally, any person upon committing any violation of any 
provision of this Act may be subject to a civil action for trespass, 
and upon having been determined by the Court to have committed the 
violation, shall be found to have trespassed upon the lands of the Sac 
and Fox Nation, and shall be assessed such damages as the Court deems 
appropriate in the circumstances.
    3. Any person suspected of having violated any provision of this 
Act shall, in addition to any other penalty imposed hereunder, be 
required to surrender any liquor or beer in such person's possession to 
the officer making the arrest or complaint. The surrendered beverages, 
if previously unopened, shall only be returned upon a finding by the 
Court after trial that the individual committed no violation of this 
Act.
    4. Any Operator who violates the provisions set forth herein shall 
forfeit all of the remaining stock in the outlet(s). The Commission 
shall be empowered to seize forfeited products.
    5. Any stock, goods or other items subject to this Act that have 
not been registered, licensed, or taxes paid shall be contraband and 
subject to immediate

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confiscation by the Commission or its employees or agents, PROVIDED, 
that within 15 days of the seizure the Commission shall cause to be 
filed an action against such property alleging the reason for the 
seizure or confiscation, and upon proof, the Court shall order the 
property forfeited and vested in the Sac and Fox Nation of Missouri.

Chapter Seven--Miscellaneous Provisions

Section 701. Severability

    If any provision of this Act in its application to any person or 
circumstance is held invalid, the remainder of the Act and its 
application to other persons or circumstances is not affected.

Section 702. Effective Date

     This Act shall become effective upon publication of the Secretary 
of the Interior's certification notice in the Federal Register.

    Dated: February 20, 1997.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 97-4944 Filed 2-26-97; 8:45 am]
BILLING CODE 4310-22-P