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###### Department of the Interior

###### Bureau of Indian Affairs

          - [245A2100DD/AAKC001030/A0A501010.999900]

# AGENCY:

Bureau of Indian Affairs, Interior.

# ACTION:

Notice.

# SUMMARY:

This notice publishes the liquor ordinance of the Winnemucca Indian Colony. The liquor ordinance is to regulate and control the possession, sale, manufacture, and distribution of alcohol in conformity with the laws of the State of Nevada for the purpose of generating new Tribal revenues. Enactment of this ordinance will help provide a source of revenue to strengthen Tribal government, provide for the economic viability of Tribal enterprises, and improve delivery of Tribal government services.

# DATES:

This code shall become effective February 6, 2024.

# FOR FURTHER INFORMATION CONTACT:

Ms. Natalie Wabaunsee, Acting Tribal Government Officer, Western Regional Office, Bureau of Indian Affairs, 2600 N. Central Avenue, 4th Floor Mailroom, Phoenix, AZ 85001, Telephone: (602) 647-5271 or Oliver Whaley, Director, Office of Regulatory Affairs, (202) 738-6065. 

# SUPPLEMENTARY INFORMATION:

                    Pursuant to the Act of August 15, 1953, Pub. 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 Winnemucca Indian Colony Council duly adopted the Winnemucca Indian Colony Liquor Ordinance on March 14, 2023.                

                    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 the Winnemucca Indian Colony Council duly adopted by Resolution of the Colony Council of the                           ( print page 8239)                        Winnemucca Indian Colony of Nevada the Winnemucca Indian Colony Liquor Ordinance by Resolution No. 2023-03-013 dated March 14, 2023.                

Bryan Newland,

Assistant Secretary-Indian Affairs.

The Winnemucca Indian Colony Liquor Ordinance shall read as follows:

## General Provisions

*Section 26.001 Title.*                     This ordinance shall be known as the Winnemucca Indian Colony Liquor Ordinance.                

*Section 26.002 Authority.*                     This Ordinance is adopted by the Winnemucca Indian Colony Council pursuant to the provisions of 18 U.S.C.A. § 1161 and Article VI, Section 1(e), (g) (h), (i) and (j) of the Constitution of the Winnemucca Indian Colony.                

*Section 26.003 Policies.*

1. The introduction, possession and sale of liquor on Indian reservations have always been clearly recognized as matters of special concern to Indian tribes and to the United States Government. The control of liquor on reservations remains exclusively subject to their legislative enactments.

2. Federal law currently prohibits introduction of liquor into Indian country, 18 U.S.C.A. § 1155, leaving tribes the decision regarding when and to what extent liquor transactions shall be permitted. 18 U.S.C.A. § 1161

3. Present day circumstances make a complete ban on liquor within the Winnemucca Indian Colony ineffective and unrealistic. However, a need still exists for strict regulation and control over liquor transactions within the Winnemucca Indian Colony because of the many potential problems associated with the unregulated or inadequately regulated sale, possession and consumption of liquor. The Council finds that exclusive tribal control and regulation of liquor is necessary to achieve maximum economic benefit to the Colony to protect the health and welfare of Colony members, and to address specific tribal concerns relating to alcohol use on the Colony.

4. The enactment of a tribal ordinance governing liquor sales on the Colony will increase the ability of the tribal government to control Colony liquor distribution and possession, and at the same time will provide an important source of revenue for the continued operation of the tribal government and delivery of tribal governmental services.

5. In order to provide for increased tribal control over liquor distribution and possession on the Colony and to provide for an urgently needed additional revenue source, the Council of the Winnemucca Indian Colony hereby adopts this Liquor Ordinance.

## Winnemucca Indian Colony Liquor Commission

*Section 26.100 Establishment.*                     There is hereby established a Winnemucca Indian Colony Liquor Commission. The members of the Winnemucca Indian Colony Council shall serve as the Winnemucca Indian Colony Liquor Commission.                

*Section 26.101 Powers.*                     The Winnemucca Indian Colony Liquor Commission shall have the following powers:                

1. Administer this Ordinance by exercising general control, management and supervision of all liquor sales, places of sale and sales outlets, as well as exercising all powers necessary to accomplish the purposes of this Ordinance.

2. Adopt and enforce rules and regulations in furtherance of the purposes of this Ordinance and the performance of administrative functions.

3. Employ such persons as reasonably necessary to allow the Commission to perform its duties under this Ordinance.

4. Bring suit in the appropriate court to enforce the provisions of this Ordinance.

5. The Winnemucca Indian Colony Liquor Commission shall conduct business pursuant to this Ordinance at regular of special Council meetings and shall keep records of all proceedings of the Winnemucca Indian Colony Liquor Commission.

6. Any person Subject to the provisions of this Ordinance who is injured or aggrieved by any final regulations issued by the Winnemucca Indian Colony Liquor Commission may petition the Commission for a revision of the regulations.

7. The Winnemucca Indian Colony Council shall have the authority to establish by separate Ordinance the Winnemucca Indian Colony Liquor Agency. This agency, like Winnemucca Indian Colony Indian Tribal Enterprises, shall be constituted as a separate agency and department of the Winnemucca Indian Colony with its own charter. The purpose of the Winnemucca Indian Colony Liquor Agency shall be to purchase and sell liquor for the benefit of the Winnemucca Indian Colony.

8. The Winnemucca Indian Colony Council may form a corporation or a subordinate tribal entity, or a tribal enterprise, to operate off-sale or packaged sale of intoxicating beverages, under such license or licenses as may be required by law.

## Appeals

*Section 26.200 Sovereign Immunity Not Waived.*                     Nothing in this Liquor Ordinance is intended or shall be construed as a waiver of the sovereign immunity of the Winnemucca Indian Colony. The Winnemucca Indian Colony does not consent to be sued in any court with respect to this Ordinance. No employee or agent of the Winnemucca Indian Colony or of the Winnemucca Indian Colony Liquor Commission shall be authorized, nor shall he attempt to waive the sovereign immunity of the Tribe.                

*Section 26.201 The Challenges to the Validity of This Liquor Ordinance.*                     All challenges to the validity of this Liquor Ordinance either generally, or as applied to any person, shall be presented to the Winnemucca Indian Colony Council. The decision of the Council on the matter is final.                

*Section 26.202 No Other Actions Created.*                     No private right of action by any person or group of persons, either directly against any person subject to this Ordinance, or indirectly against any Winnemucca Indian Colony Official or body to compel the enforcement of the provisions of this Ordinance shall be deemed created by this Ordinance, or be within the subject matter jurisdiction of the Winnemucca Indian Colony Tribal Court or any other court. No injunction or restraining order shall issue from the Winnemucca Indian Colony Tribal Court or any other court to enforce the provision of this Ordinance.                

*Section 26.203 Severability.*                     If any provision of this Ordinance or its application to any person or circumstances is held invalid by a final judgment of a court of competent jurisdiction, the invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application and to this end the provisions of this Ordinance are severable.                

## Definitions

*Section 26.300 Definitions.*                     As used in this Ordinance, the following words shall have the following meanings unless the context clearly requires otherwise.                

*Section 26.301 “Alcohol” defined.*                     “Alcohol” is 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 and mixtures of this substance.                

*Section 26.302 “Beer” defined.*                     “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 or cereal                           ( print page 8240)                        in pure water containing not more than 4% of alcohol by volume. For the purpose of this title, any such beverage, including ale, stout and porter, containing more than 4% of alcohol by weight shall be referred to as “strong beer.”                

*Section 26.303 “Liquor” defined.*                     “Liquor” includes the four varieties of liquor herein defined (alcohol, spirits, wine, and beer) and all fermented spiritous, vinous, or malt liquor or combinations thereof, and mixed liquor, a part of which is fermented, spiritous, vinous, or malt liquor, or otherwise intoxicating; and every liquid or solid or semi-solid 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, semi-solid, solid substance, which contains more than 1% of alcohol by weight shall be conclusively deemed to be intoxicating.                

*Section 26.304 “Malt Liquor” defined.*                     “Malt Liquor” means beer, strong beer, ale, stout and porter.                

*Section 26.305 “Sale” and “Sell” defined.*                     “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.                

*Section 26.306 “Spirits” defined.*                     “Spirits” means any beverage which contains alcohol obtained by distillation, including wines exceeding 17% of alcohol by weight.                

*Section 26.307 “Wine” defined.*                     “Wine” means any alcohol beverage obtained by fermentation of fruits (grapes, berries, apples, etc.,) or other agricultural products containing sugar to which any saccharine substances may have been added before, during or after fermentation and containing not more than 17% of alcohol by weight, including sweet wines fortified with wine spirits such as port, sherry, muscatel and angelica not exceeding 17% of alcohol by weight.                

## Licensing

*Section 26.400 Tribal License Required.*                     Any person desiring to sell liquor within the boundaries of the Winnemucca Indian Colony must first obtain a license from the Winnemucca Indian Colony Liquor Commission. Every license issued under this Ordinance shall be subject to all conditions and restrictions imposed by this Ordinance and by the regulations in force from time to time.                

*Section 26.401 Application for License.*                     Any person may apply for a Winnemucca Indian Colony Liquor License. Application shall be made on an approved form provided by the Winnemucca Indian Colony Liquor Commission. The application shall be filed with the Secretary of the Winnemucca Indian Colony Council. The application shall show the following:                

1. Proof satisfactory that the applicant is a person of good moral character and reputation.

2. Proof satisfactory that the applicant is financially responsible.

3. Proof satisfactory that the applicant is over 21 years of age.

4. The location and description of the premises where the sales will take place.

5. That the applicant agrees to accept and abide by the conditions of the Winnemucca Indian Colony Liquor License as set forth in Section 26.402 of this Ordinance and any other Ordinance or Resolution of the Winnemucca Indian Colony Council.

6. That a fee as set by resolution of the Winnemucca Indian Colony Council accompanies the application.

*Section 26.402 Conditions of Winnemucca Indian Colony Liquor License.*                     Any Winnemucca Indian Colony Liquor License issued under this Ordinance shall be subject to the following conditions:                

1. Licenses shall be issued for one calendar year or the portion remaining thereof at the time the license is issued, starting with 2023.

2. If the terms of the license or location of the business so require, the licensee shall at his own expense, engage some suitable person who qualifies as eligible for employment as a law enforcement officer to maintain law and order in and about the premises where alcohol is sold.

3. The licensee shall at all times maintain an orderly, clean and neat establishment both inside and outside the premise.

4. All acts and transactions relating to the operating standards of the establishment licensed under the authority of the Winnemucca Indian Colony Liquor License shall be in conformity with the operating laws of the State of Nevada to the extent required by 18 U.S.C.A. § 1161. More stringent standards of operation may be imposed upon 30 days-notice to licensees by duly enacted ordinances of the Council.

5. The licensed premises shall be subject to inspection during reasonable business hours by members of the Winnemucca Indian Colony Liquor Commission or authorized representatives in order to ensure that the licensee is complying with the terms of tribal ordinances and the conditions of the license.

*Section 26.403 Consideration of Application.*                     The Winnemucca Indian Colony Liquor Commission may, within its sole discretion, refuse to issue a license. The Commission may, within its sole discretion and subject to this Ordinance, issue a license. For purposes of considering an application, the Commission may cause an inspection of the premises to be made and may inquire into all matters in connection with the construction and operation of the premises. Before the Commission shall issue a license, it shall give due consideration to the location of the business to be conducted under such license.                

*Section 26.404 Posting.*                     Every licensee shall post and keep its license in a conspicuous place on the premises.                

*Section 26.405 Fees.*                     License applications must be accompanied by an annual fee paid in advance. The Winnemucca Indian Colony Liquor Commission shall promulgate regulations establishing the annual fee for a Winnemucca Indian Colony Liquor License.                

*Section 26.406 Expiration.*                     Unless sooner cancelled, every license shall expire at midnight on the 31st day of December of the year in which it was issued.                

*Section 26.407 Suspension and Cancellation.*                     The Winnemucca Indian Colony Liquor Commission may suspend or cancel any license for violation of this Ordinance. Upon suspension of cancellation, all rights of the licensee to keep or sell liquor thereunder shall be suspended or terminated as the case may be. At least ten days prior to the cancellation or suspension, the Commission shall provide notice to the licensee of its intent to cancel or suspend the license. The licensee shall have the right prior to the cancellation or suspension date, to apply to the Winnemucca Indian Colony Council for a hearing to determine whether the license was rightly suspended or cancelled. The decision of the Winnemucca Indian Colony Council on the matter shall be final. Upon suspension or cancellation of the license, the licensee shall forthwith deliver up the license to the Winnemucca Indian Colony Council. Where the license has been suspended only, the Council shall return the license to the licensee at the expiration or termination of the period of suspension.                          ( print page 8241)    

## Illegal Activities

*Section 26.500 Declaration.*                     No person shall engage in the manufacture or sale of liquor within the boundaries of the Winnemucca Indian Colony except in conformity with this Ordinance. No person shall engage in the sale or manufacture of liquor within the boundaries of the Winnemucca Indian Colony unless duly licensed by the Tribe.                

*Section 26.501 Illegal Sale of Liquor by Drink or Bottle.*                     It shall be a violation of this Ordinance for any person to sell by the drink or bottle any liquor, except as otherwise provided in this Ordinance.                

*Section 26.502 Illegal Transportation, Still or Sale without Permit.*                     It shall be violation of this Ordinance for any person to sell or offer for sale or transport in any manner, any liquor in violation of this Ordinance or to operate or have in his possession without a permit any mash capable of being distilled into liquor.                

*Section 26.503 Illegal Purchase of Liquor.*                     It shall be a violation of this Ordinance for any person within the boundaries of the Winnemucca Indian Colony to buy liquor from any person other than at a store having a Winnemucca Indian Colony Liquor License.                

*Section 26.504 Illegal Possession of Liquor, Intent to Sell.*                     It shall be a violation of this Ordinance for any person to keep or possess liquor upon his person or in any place, or on premises conducted or maintained by him as a principal or agent, with the intent to sell it contrary to the provisions of this Ordinance.                

*Section 26.505 Sales to Persons Apparently Intoxicated.*                     It shall be a violation of this Ordinance for any person to sell liquor to a person apparently under the influence of liquor.                

*Section 26.506 Sale to Minors.*                     It shall be unlawful:                

1. For a licensee or any other person to sell, deliver, give or otherwise furnish liquor to any person under the age of 21 years, or leave or deposit any such liquor in any place with the intent that the same shall be procured by any person under the age of 21 years, or for a person under the age of 21 years to buy, receive, have in his possession, or consume liquor. It shall be the responsibility of the licensee or his employee and of anyone acting in his behalf to ascertain that the purchaser of any liquor, either by the drink or by the bottle, or any other container is 21 years of age or older.

2. For a licensee to employ a person under the age of 21 years to manufacture, sell or dispose of liquor.

3. For a licensee to employ a person under the age of 21 years in any capacity connected with the handling of liquor.

4. For a person under 21 years of age to offer or present to a licensee, employee or other person a fraudulent or false certificate of birth or other written evidence of age which is not actually his own, or to otherwise misrepresent his age for the purpose of inducing a licensee or employee to give, sell, serve or furnish liquor contrary to law.

5. To influence or attempt to influence the sale, giving or serving of liquor to any person under 21 years of age by misrepresenting the age of such person or to order, request, receive or procure liquor from any licensee, employee or other person for the purpose of selling, giving, or serving it to a person under 21 years of age.

6. For any person under the age of 21 years to buy, sell, give, possess, deliver, serve, or to be employed for any of the foregoing or to consume any liquor within the exterior boundaries of the Winnemucca Indian Colony.

*Section 26.507 Identification—Proof of Minimum Age.*                     Where there may be a question of a person's right to purchase liquor by reason of his or her age, such person shall be required to present any one of the following officially issued cards of identification which shows correct age and bears his or her signature and photograph:                

(1) Liquor Control Authority Card of Identification.

(2) Driver's License of any State.

(3) United States Active Duty Military Identification.

(4) Passport.

(5) Tribal Identification or Enrollment Card.

*Section 26.508 Defense to Action for Sale to Minors.*                     It shall be a defense to a suit for serving liquor to a person under 21 years of age if such a person has presented a card of identification as set forth in Section 26.507 and the licensee of his employee took reasonable care to verify the card of identification.                

*Section 26.509 Certain Illegal Activity.*                     The following are prohibitions against certain conduct by individuals who consume alcohol:                

1. It shall be unlawful to use or consume any alcoholic beverages in a motor vehicle while such vehicle is being driven.

2. It shall be unlawful to possess any open bottle, can, package, or container of alcoholic beverage in the passenger compartment of a motor vehicle when such vehicle is being driven.

3. It shall be unlawful for any person actually under the influence of alcoholic beverages to possess, use or consume alcoholic beverages.

4. It shall be unlawful for any person to furnish any alcoholic beverage to any person under the age of twenty-one (21) or to leave or to deposit any alcoholic beverages with the intent that the alcoholic beverages shall be procured by any person under the age of twenty-one (21) years.

5. Any Indian who violates any of the provisions of this ordinance shall be deemed guilty of an offense and upon conviction thereof shall be punished by a fine of not more than $50 or by imprisonment of not more than ten (10) days or both such fine and imprisonment: Provided, however, that any person under the age of eighteen (18) years may, in the discretion of the judge, be treated as a juvenile and have the charge(s) disposed of pursuant to applicable juvenile law and procedures.

## Penalties

*Section 26.600 Civil Fine.*                     Any person or entity selling, bartering or manufacturing liquor without a tribal license or otherwise violating this Ordinance shall be subject to a civil fine of not more than $500.00 for each violation. The Winnemucca Indian Colony Council may adopt by resolution a schedule of lesser fines for each type of violation taking into account its seriousness and the threat it may pose to the general health and welfare of tribal members.                

*Section 26.601 Criminal Penalties.*                     Any person or entity subject to criminal prosecution by the Winnemucca Indian Colony who sells, barters or manufactures liquor without a Winnemucca Indian Colony Liquor License shall be subject to a fine of not more than $500.00 and/or six months imprisonment for each separate violation at the discretion of the Tribal Court and pursuant to all appropriate provisions of the Law and Order Code of the Winnemucca Indian Colony. The penalties provided herein shall be in addition to any criminal penalties which may be imposed by the provisions of the Winnemucca Indian Colony Law and Order Code.                

1. In no event shall the same person or entity be subject to both civil and criminal sanctions simultaneously.

                    2. The Federal Indian liquor laws remain applicable to any act or transaction which is not authorized by this Ordinance and violators of this Ordinance may be subject to federal                           ( print page 8242)                        prosecution as well as legal action in accordance with Tribal Law.                

*Section 26.602 Illegal Items Declared Contraband.*                     All liquor within the Colony held, owned or possessed by any person or liquor outlet operating in violation of this Ordinance is hereby declared to be contraband and subject to forfeiture to the Tribe. Upon application of the Tribe, the Tribal Court Judge shall issue an order directing the appropriate law enforcement office to seize contraband liquor within the Winnemucca Indian Colony and deliver it to the Winnemucca Indian Colony Council. A copy of the Court Order shall be delivered to the person from whom the property was seized.                

1. Within two weeks following the seizure of the contraband, a hearing shall be held in Tribal Court at which time the owner or operator of the contraband shall be given an opportunity to present evidence in defense of his or her activities.

2. Adequate notice of the hearing shall be given to the person from whom the property was seized, if known. If the person is unknown, notice of the hearing shall be posted at the place where the contraband was seized and at some other public place. The notice shall describe the property seized and the time, place and cause of seizure, and give the name and place of residence, if known, of the person from whom the property was seized.

3. If, upon the hearing, the evidence warrants or no person appears as the claimant, the Tribal Court shall thereupon enter a judgment of forfeiture and order such articles turned over to the Winnemucca Indian Colony Council for disposition.

*Section 26.603 Injunctive Relief.*                     The Tribal Court may, in addition to other penalties set forth in this Ordinance, grant such other relief as is necessary and proper to enforce this Ordinance including but not limited to injunctive relief against acts in violation of this Ordinance.                

*Section 26.604 Exclusion.*                     Any person not a member of the Winnemucca Indian Colony who shall be found in violation of this Ordinance shall be subject to exclusion from the Winnemucca Indian Colony at the discretion of the Tribal Council.                

## Miscellaneous Provisions

*Section 26.700 Jurisdiction.*                     The jurisdiction of this ordinance shall extend to all activities conducted within the exterior boundaries of the Winnemucca Indian Colony except activities conducted on rights of way through the Winnemucca Indian Colony. Nothing in this Ordinance shall be construed to require or authorize the criminal trial and punishment by the Winnemucca Indian Colony Tribal Court of any non-Indian except to the extent allowed by any applicable present or future act of Congress or any applicable decision of a United States Federal Court.                

*Section 26.701 Taxation.*                     The Winnemucca Indian Colony Council shall have the authority, through separate ordinance, to levy and collect a tax on each retail sale of liquor within the exterior boundaries of the Winnemucca Indian Colony. Any tax imposed by the Council shall apply to all retail sales of liquor on the Colony.                

*Section 26.702 Application of 18 U.S.C.A. § 1161.*                     All liquor transactions within the Winnemucca Indian Colony shall conform to this Ordinance and to the laws of the State of Nevada to the extent required by 18 U.S.C.A. § 1161.                

*Section 26.703 Amendments.*                     All provisions of this Ordinance are subject to proper revision, repeal or amendment in accordance with the Constitution and By-Laws of the Winnemucca Indian Colony.                

*Section 26.704 Effective Date.*                     This Ordinance shall be effective on such date as the Secretary of the Interior certifies this Ordinance and publishes the same in the                     **Federal Register**                    .                

[FR Doc. 2024-02351 Filed 2-5-24; 8:45 am]

BILLING CODE 4337-15-P