Ewiiaapaayp Band of Kumeyaay Indians Liquor Control Ordinance

Published date16 April 2019
Citation84 FR 15630
Record Number2019-07466
SectionNotices
CourtIndian Affairs Bureau,Interior Department
Federal Register, Volume 84 Issue 73 (Tuesday, April 16, 2019)
[Federal Register Volume 84, Number 73 (Tuesday, April 16, 2019)]
                [Notices]
                [Pages 15630-15633]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2019-07466]
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                DEPARTMENT OF THE INTERIOR
                Bureau of Indian Affairs
                [190A2100DD/AAKC001030/A0A501010.999900]
                Ewiiaapaayp Band of Kumeyaay Indians Liquor Control Ordinance
                AGENCY: Bureau of Indian Affairs, Interior.
                ACTION: Notice.
                -----------------------------------------------------------------------
                SUMMARY: This notice publishes the Liquor Control Ordinance of the
                Ewiiaapaayp Band of Kumeyaay Indians. The Liquor Control Ordinance
                regulates and controls the possession, sale, manufacture, and
                distribution of alcohol in conformity with the laws of the State of
                California.
                DATES: This ordinance shall take effect May 16, 2019.
                FOR FURTHER INFORMATION CONTACT: Mr. Harley Long, Tribal Government
                Officer, Pacific Regional Office, Bureau of Indian Affairs, 2800
                Cottage Way, Room W-2820, Sacramento, California 95825, Telephone:
                (916) 978-6000, Fax: (916) 978-6099.
                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 control ordinances for the purpose of regulating
                liquor transactions in Indian country. The Ewiiaapaayp Band of Kumeyaay
                Indians duly adopted Title 513, Ewiiaapaayp Band of Kumeyaay Indians
                [[Page 15631]]
                Liquor Control Ordinance on May 9, 2018.
                 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 Ewiiaapaayp Band of Kumeyaay Indians,
                California, duly adopted Title 513, Ewiiaapaayp Band of Kumeyaay
                Indians Liquor Control Ordinance, on May 9, 2018.
                 Dated: November 9, 2018.
                Tara Sweeney,
                Assistant Secretary--Indian Affairs.
                 The Ewiiaapaayp Band of Kumeyaay Indian's Title 513, Ewiiaapaayp
                Band of Kumeyaay Indians Liquor Control Ordinance shall read as
                follows:
                TITLE 513
                EWIIAAPAAYP Band of Kumeyaay Indians Liquor Control Ordinance
                Chapter One General Provisions
                Article 1. Authority
                 513.01.1 This Ordinance is enacted pursuant to the Act of August
                15, 1953 (Pub. L. 83-277, 67 Stat. 586, 18 U.S.C. 1161) and by powers
                vested in the General Council of the Ewiiaapaayp Band of Kumeyaay
                Indians (``General Council'') to develop, adopt and enforce ordinances
                as authorized under Article VI, Section 1 of the Constitution of the
                Ewiiaapaayp Band of Kumeyaay Indians approved on December 19, 1973 and
                amended on September 6, 2002.
                Article 2. Purpose
                 513.01.2 The purpose of this Ordinance is to regulate and control
                the possession, sale, manufacture, distribution and taxation of liquor
                within Tribal Trust Lands, in order to permit alcohol sales by tribally
                owned and operated enterprises and private lessees, and at tribally
                approved special events. Enactment of a liquor control ordinance will
                help provide a source of revenue to fund the continued operation of the
                tribal government, the delivery of governmental services, the economic
                viability of tribal enterprises, and to fund health, safety and general
                welfare programs and services provided to Tribal citizens and residents
                of and visitors to land within the Tribe's territorial jurisdiction.
                Article 3. Short Title
                 513.01.3 This Ordinance shall be known and cited as the ``Liquor
                Control Ordinance.''
                Article 4. Jurisdiction
                 513.01.4 This Ordinance shall apply to all Tribal Trust Lands now
                or in the future under the governmental authority of the Tribe.
                Article 5. Application of 18 U.S.C. 1161
                 513.01.5 (a) By adopting this Ordinance, the Tribe hereby regulates
                the sale, manufacturing, distribution, and consumption of liquor while
                ensuring that such activity conforms with all applicable laws of the
                State of California as required by 18 U.S.C. 1161 and the United
                States.
                 (b) (1) This Ordinance shall apply to the full extent of the
                sovereign jurisdiction of the Tribe.
                 (2) Compliance with this Subchapter is hereby made a condition of
                the use of any land or premises within the Tribe's Tribal Trust Lands.
                 (3) Any individual, person or entity who resides, conducts
                business, engages in a business transaction, receives benefits from the
                Tribe, acts under tribal authority, or enters the Tribe's Tribal Lands
                shall be deemed to have consented to the following:
                 (i) To be bound by the terms of this Ordinance;
                 (ii) To the exercise of the jurisdiction of the Tribe's Tribal
                Court for legal actions arising pursuant to this Ordinance; and
                 (iii) To service of summons and process, and search and seizure, in
                conjunction with legal actions arising pursuant to this Ordinance.
                 (4) No portion of this Ordinance shall be construed as contrary to
                Federal law.
                Article 6. Declaration of Public Policy; Findings
                 513.01.6 The General Council enacts this Ordinance, based upon the
                following findings:
                 (a) The distribution, possession, consumption and sale of liquor on
                Tribal Trust Lands is a matter of special concern to the Tribe.
                 (b) The Tribe is the beneficial owner of Tribal Trust Lands, upon
                which the Tribe plans to construct and operate a gaming facility and
                related entertainment and lodging facilities.
                 (c) The Tribe's gaming facility will serve as an integral and
                indispensable part of the Tribe's economy, providing revenue to the
                Tribe's government and employment to tribal citizens and others in the
                local community.
                 (d) Federal law, as codified at 18 U.S.C. 1154 and 1161, currently
                prohibits the introduction of liquor into Indian country, except in
                accordance with State law and the duly enacted law of the Tribe.
                 (e) The Tribe recognizes the need for strict control and regulation
                of liquor transactions on Tribal Trust Lands because of potential
                problems associated with the unregulated or inadequate regulated sale,
                possession, distribution, and consumption of liquor.
                 (f) Regulating the possession, sale, distribution and manufacture
                of liquor within Tribal Trust Lands is also consistent with the Tribe's
                interest in ensuring the peace, safety, health, and general welfare of
                the Tribe and its citizens.
                 (g) Tribal control and regulation of liquor on Tribal Trust Lands
                is consistent with the Tribe's custom and tradition of controlling the
                possession and consumption of liquor on Tribal Trust Lands and at
                tribal events.
                 (h) The purchase, distribution, and sale of liquor on Tribal Trust
                Lands shall take place only at duly licensed (i) tribally owned
                enterprises, (ii) other enterprises operating pursuant to a lease or
                license with the Tribe, and (iii) tribally-sanctioned events.
                 (i) The sale or other commercial manufacture or distribution of
                liquor on Tribal Trust Lands, other than sales, manufacture, and
                distributions made in strict compliance with this Ordinance, is
                detrimental to the health, safety, and general welfare of the citizens
                of the Tribe, and is prohibited.
                Chapter Two Definitions
                Article 1. Definitions
                 513.02.1 All definitions of the Tribe's Tribal Code Title 001
                ``Tribal Code Definitions'' apply herein unless the terms are otherwise
                defined in this Ordinance. For purposes of this Ordinance, whenever any
                of the following words, terms or definitions is used herein, they shall
                have the meaning ascribed to them in this Subchapter:
                 As used in this Ordinance, the terms below are defined as follows:
                 (a) Alcohol means ethyl alcohol, hydrated oxide of ethyl, or spirit
                of wine, in any form, and regardless of source or the process used for
                its production.
                 (b) Alcoholic beverage means all alcohol, spirits, liquor, wine,
                beer and any liquid or solid containing alcohol, spirits, liquor, wine,
                or beer, and which contains one-half of one percent or more of alcohol
                by volume and that is fit for human consumption, either alone or when
                diluted, mixed, or combined with any other substance(s).
                 (c) Compact means the Tribal-State compact between the State and
                the Tribe that governs the conduct of class III gaming activities on
                that portion of the Tribal Trust Lands recognized as ``Indian lands''
                pursuant to the Indian Gaming Regulatory Act, 25 U.S.C. 2701, et seq.
                [[Page 15632]]
                 (d) Indian Country, consistent with the meaning given in 18 U.S.C.
                1151 means: (a) All land within the limits of the Ewiiaapaayp Indian
                Reservation under the jurisdiction of the United States government,
                notwithstanding the issuance of any patent, and, including rights of
                way running through the reservation; and (b) all Indian allotments or
                other lands held in trust for the Tribe or a member of the Tribe,
                including rights of way running through the same.
                 (e) License means, unless otherwise stated, a license issued by the
                Tribe in accordance with this Ordinance.
                 (f) Liquor means the four varieties of liquor (alcohol, spirits,
                wine, and beer), and all fermented, spirituous, vinous, or malt liquor,
                or combinations thereof, and mixed liquor, a part of which is
                fermented, spirituous, vinous or malt liquor, or otherwise
                intoxicating; and as such term.
                 (g) Malt beverage or malt liquor means any beverage such as beer,
                ale, lager beer, stout, and porter obtained by the alcoholic
                fermentation of an infusion or decoction of pure hops, or pure extract
                of hops and pure barley malt or other wholesome grain or cereal in pure
                water containing not more than eight percent of alcohol by weight, and
                not less than one-half of one percent of alcohol by volume. For
                purposes this Subchapter, any such beverage containing more than eight
                percent of alcohol by weight shall be referred to as ``strong beer.''
                 (h) Manufacturer means a person engaged in the preparation and
                manufacturing of liquor for sale, in any form whatsoever.
                 (i) Person means any individual or entity, whether Indian or non-
                Indian, receiver, assignee, trustee in bankruptcy, trust, estate, firm,
                corporation, partnership, joint corporation, association, society, or
                any group of individuals acting as a unit, whether mutual, cooperative,
                fraternal, non-profit or otherwise, and any other Indian tribe, band or
                group. The term shall also include the businesses of the Tribe.
                 (j) Sale and sell means the transfer for consideration of any kind,
                including by exchange or barter.
                 (k) State means the State of California.
                 (l) Territory means the term defined in the Tribe's Tribal Code of
                Title 001 Sec. 001.02.66. and Title 100 Sec. 100.01.1.D. wherein
                ``Territory'' is defined by Article II--Territory of the Tribe's
                Constitution, as amended, such that the territorial jurisdiction of the
                Tribe, is defined as all land within the exterior boundaries of the
                Ewiiaapaayp Indian Reservation, all land within the limits of dependent
                Ewiiaapaayp Indian communities, all Ewiiaapaayp Indian allotments, all
                land owned in fee by the Tribe, and all other land held in trust for,
                owned in fee by, or leased by the United States to the Tribe.''
                 (m) Tribal retailer means a liquor retailer wholly owned by the
                Ewiiaapaayp Band of Kumeyaay Indians and located on its Tribal Trust
                Lands.
                 (n) Tribally-licensed retailer means a person who has a business
                license from the Tribe to sell liquor at retail from a business located
                in Indian Country.
                 (o) Tribe means the term defined in the Tribe's Tribal Code of
                Title 001 Sec. 001.01.1.51. wherein, Tribe means the ``Ewiiaapaayp
                Band of Kumeyaay Indians, formerly known as the Cuyapaipe Band of
                Mission Indians or the Cuyapaipe Community of the Diegueno Mission
                Indians of the Cuyapaipe Reservation, California, a federally
                recognized Indian Tribe organized under Sec. 16 of the Indian
                Reorganization Act, 25 U.S.C. 476, et seq., (48 Stat. 984) its
                enterprises, subdivisions, and departments, and its agents acting
                within the scope of their authority.''
                Chapter Three Liquor Sales, Possession, & Manufacture
                Article 1. Possession of Alcohol
                 513.03.1 The introduction and possession of alcoholic beverages
                shall be lawful within Tribal Trust Lands; provided that such
                introduction or possession is in conformity with the laws of the State.
                Article 2. Retail Sales of Alcohol
                 513.03.2 The sale of alcoholic beverages shall be lawful within
                Tribal Trust Lands; provided that such sales are in conformity with the
                laws of the State and are made pursuant to a license issued by the
                Tribe.
                Article 3. Manufacture of Alcohol
                 513.03.3 The manufacture of beer and wine shall be lawful within
                Tribal Trust Lands, provided that such manufacture is in conformity
                with the laws of the State and pursuant to a license issued by the
                Tribe.
                Article 4. Age Limits
                 500.03.4 The legal age for possession or consumption of alcohol
                within Tribal Trust Lands shall be the same as that of the State, which
                is currently 21 years. No person under the age of 21 years shall
                purchase, possess or consume any alcoholic beverage. If there is any
                conflict between State law and the terms of the Compact regarding the
                age limits for alcohol possession or consumption, the age limits in the
                Compact shall govern for purposes of this Ordinance.
                Chapter Four Licensing
                Article 1. Licensing
                 513.04.1 The Tribe's General Council shall have the power to
                establish procedures and standards for tribal licensing of liquor sales
                within Tribal Trust Lands, including the setting of a license fee
                schedule, and shall have the power to publish and enforce such
                standards; provided that no tribal license shall issue except upon
                showing of satisfactory proof that the applicant is duly licensed by
                the State. The fact that an applicant for a tribal license possesses a
                license issued by the State shall not provide the applicant with an
                entitlement to a tribal license. The General Council may in its
                discretion set standards which are more, but in no case less, stringent
                than those of the State.
                Chapter Five Enforcement
                Article 1. Enforcement
                 513.05.1 The General Council shall have the power to develop,
                enact, promulgate, and enforce regulations as necessary for the
                enforcement of this Ordinance and to protect the public health,
                welfare, and safety of the Tribe, provided that all such regulations
                shall conform to and not be in conflict with any applicable tribal,
                Federal, or State law. Regulations enacted pursuant to this Ordinance
                may include provisions for suspension or revocation of tribal liquor
                licenses, reasonable search and seizure provisions, and civil penalties
                for violations of this Ordinance to the full extent permitted by
                Federal law and consistent with due process.
                 Tribal law enforcement personnel and security personnel duly
                authorized by the General Council shall have the authority to enforce
                this Ordinance by confiscating any liquor sold, possessed, distributed,
                manufactured, or introduced within Tribal Trust Lands in violation of
                this Ordinance or of any regulations duly adopted pursuant to this
                Ordinance.
                 The General Council shall have the exclusive jurisdiction to hold
                hearings on violations of this Ordinance and any procedures or
                regulations adopted pursuant to this Ordinance; to promulgate
                appropriate procedures governing such hearings; to determine and
                enforce penalties or damages for violations of this Ordinance; and to
                delegate to a subordinate hearing officer or panel the authority to
                take any or all of the foregoing actions on its behalf.
                [[Page 15633]]
                Chapter Six Taxes
                Article 1. Taxation
                 513.06.1 The Tribe expressly reserves its inherent sovereign right
                to regulate the use and sale of liquor through the imposition of tribal
                taxes thereon. The General Council hereby authorizes and expressly
                reserves its authority to impose a tribal Liquor Tax on sales of all
                alcoholic beverages, including packaged and retail sales of liquor,
                wine, and beer, at a rate determined to be fair and equitable by the
                General Council through independent action. The Tribe retains the right
                to impose such taxes by appropriate ordinance to the full extent
                permitted by Federal law.
                Chapter Seven Administration
                Article 1. License Required of Tribal Retailers and Tribally-Licensed
                Retailers
                 513.07.1 Every person engaging in the business of selling,
                manufacturing, or distributing liquor within the Tribe's Tribal Trust
                Lands, including but not limited to a brewery, shall secure a business
                license from the Tribe in the manner provided for by Title 513
                (``Business License Standards Code'') and otherwise comply with all
                provisions of Title 513.
                Article 2. Prohibitions
                 513.07.2 (a) The manufacture, purchase, sale, and dealing in liquor
                within Tribe's Tribal Trust Lands by any person, party, firm, or
                corporation except pursuant to the control, licensing, and regulation
                of the General Council, is hereby declared unlawful. Without limitation
                as to any other penalties and fines that may apply, any violation of
                this subsection is an infraction punishable by a fine of up to five
                hundred dollars ($500.00).
                 (b) Every person engaging in the business of manufacturing,
                distributing or selling liquor within the Tribe's Tribal Trust Lands
                shall comply with the applicable provisions of the Tribe's Law and
                Order Code.
                Article 3. Nondiscrimination
                 513.07.3 No provision of this Ordinance shall be construed as
                imposing a regulation or tax that discriminates on the basis of whether
                a retail liquor establishment is owned, managed or operated by a member
                of the Tribe.
                Chapter Eight Miscellaneous Provisions
                Article 1. Sovereign Immunity Preserved
                 513.08.1 Nothing contained in this Ordinance is intended to, nor
                does in any way, limit, alter, restrict, or waive the sovereign
                immunity of the Tribe or any of its agencies, agents or officials from
                unconsented suit or action of any kind.
                Article 2. Conformance With Applicable Laws
                 513.08.2 All acts and transactions under this Ordinance shall be in
                conformity with the Compact and laws of the State to the extent
                required by 18 U.S.C. 1161 and with all Federal laws regarding alcohol
                in Indian Country.
                Article 3. Effective Date
                 513.08.3 This Ordinance shall be effective as of the date on which
                the Secretary of the Interior certifies this Ordinance and publishes
                the same in the Federal Register.
                Article 4. Repeal of Prior Acts
                 513.08.4 All prior enactments of the Tribal Council, including
                tribal resolutions, policies, regulations, or ordinances pertaining to
                the subject matter set forth in this Ordinance are hereby rescinded.
                Article 5. Amendments
                 513.08.5 This Ordinance may only be amended pursuant to an
                amendment duly enacted by the General Council and certification by the
                Secretary of the Interior and publication in the Federal Register, if
                required.
                Article 6. Severability and Savings Clause
                 513.08.6 If any part or provision of this Ordinance is held
                invalid, void, or unenforceable by a court of competent jurisdiction,
                such adjudication shall not be held to render such provisions
                inapplicable to other persons or circumstances. Further, the remainder
                of the Ordinance shall not be affected and shall continue to remain in
                full force and effect.
                [FR Doc. 2019-07466 Filed 4-15-19; 8:45 am]
                 BILLING CODE 4337-15-P
                

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