Shawnee Tribe Liquor and Beer Act

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes the liquor control act of the Shawnee Tribe. The Shawnee Tribe Liquor and Beer Act (Act) regulates and controls the possession, sale, manufacture, and distribution of alcohol in conformity with the laws of the State of Oklahoma for the purpose of generating new Tribal revenues. Enactment of this Act 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 Act takes effect on September 16, 2019.

FOR FURTHER INFORMATION CONTACT:

Ms. Diane Jobe, Tribal Government Services Officer, Eastern Oklahoma Regional Office, Bureau of Indian Affairs, 3100 West Peak Boulevard, Muskogee, Oklahoma 74402, Telephone: (918) 781-4685, Fax: (918) 781-4649.

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 Shawnee Tribe Business Council duly adopted the Shawnee Tribe Liquor and Beer Act on August 9, 2019.

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 Shawnee Tribe Business Council duly adopted by Resolution the Shawnee Tribe Liquor and Beer Act by Resolution No. R-08-09-19-B dated August 9, 2019.

SECTION ONE. ENACTMENT. This shall be codified in the Shawnee Tribe Tax Code.

Section 7-101. Findings. The Business Council finds that:

A. It is the policy of the Tribe to raise revenues through the collection of taxes for the sale and distribution of liquor and beer products within Shawnee Indian Country.

B. The Tribe has a duty to provide for the health, safety, and welfare of its citizens.

C. As part of the Tribe's responsibility to its citizens, the Tribe must regulate and control the distribution, sale, and possession of alcoholic beverages on tribal lands located within Shawnee Indian Country.

D. Except as otherwise required by other applicable laws of the Shawnee Tribe or by any applicable Federal and State law, the provisions and requirements of this Chapter and any rules, regulations and licenses authorized hereunder shall apply to the sale and distribution of liquor and beer products on properties under the jurisdiction of the Tribe.

Section 7-102. Purpose. The purpose of this Act is to regulate the sale and distribution of liquor and beer products on properties under the jurisdiction of the Shawnee Tribe and to generate an additional revenue base.

Section 7-103. Short Title and Codification. This Act shall be known and may be cited as the Shawnee Tribe Liquor and Beer Act and shall be codified as Chapter Seven of “Revenue and Taxation,” of the Shawnee Tribe.

Section 7-104. Authority. This Act is enacted pursuant to Articles IV, VI and VII, of the Constitution of the Shawnee Tribe and the Congressional Act of August 15, 1953 (Pub. L. 83-277, 67 Stat. 586, 18 U.S.C. 1161).

Section 7-105. Definitions. For purposes of this Chapter, the following words and phrases shall have the meanings respectively ascribed to them in this Section, except where the context otherwise requires:

A. “Alcohol” means a 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, sugar, or other substances including all dilutions and mixtures of this substance.

B. “Beer” means any beverage of alcohol by volume and obtained by the alcoholic fermentation of an infusion or decoction of barley, or other grain, malt or similar products. “Beer” may or may not contain hops or other vegetable products. “Beer” includes, among other things, beer, ale, stout, lager beer, porter and other malt or brewed liquors, but does not include sake, known as Japanese rice wine.

C. “Beer Outlet” means retail sale business licensed by the Shawnee Tribe selling beer within the Shawnee Indian Country, including all related and associated facilities under the control of the Operator. Moreover, where an Operator's business is carried on as part of the operation of an entertainment or recreational facility, the “Beer Outlet” shall be deemed to include the entertainment or recreational facility and its associated areas.

D. “Commission” means the Tax Commission of the Shawnee Tribe.

E. “Liquor” means the four varieties of liquor commonly referred to as alcohol, spirits, wine and beer, and all fermented, spirituous, vinous or malt liquors or any other intoxicating liquid, solid, semi-solid or other substance patented or not, containing alcohol, spirits, wine or beer, and is intended for oral consumption.

F. “Liquor Outlet” means retail sale business licensed by the Shawnee Tribe selling liquor within the Shawnee Indian Country, including all related and associated facilities under the control of the Operator. Moreover, where an Operator's business is carried on as part of the operation of an entertainment or recreational facility, the “Liquor Outlet” shall be deemed to include the entertainment or recreational facility and its associated areas.

G. “Tribe” means the Shawnee Tribe as established under the Constitution of the Shawnee Tribe, and any agency, corporation, partnerships, component, or subdivisions of the Shawnee Tribe.

H. “Business Council” means the Shawnee Tribe Business Council as constituted by Article IV of the Constitution of the Shawnee Tribe.

I. “Operator” means a person twenty-one (21) years of age or older who is properly licensed by the Commission to operate a Liquor and/or Beer Outlet.

J. “Person” shall have the meaning defined in Chapter One, Section 1-03 of this Title.

K. “Sale” means any transfer, exchange, or barter, in any manner or by any means whatsoever, for a consideration and includes and means all sales made by any person, whether as principal, proprietor or as an agent, servant, or employee, association, partnership, or corporation of liquor or beer products.

L. “Wholesaler” means and includes any person doing any such acts or carrying on any such business or businesses that would require such person to obtain a Wholesaler's License or Licenses hereunder.

M. “Wholesale price” means the established price for which liquor or beer are sold to the Shawnee Tribe or any Operator by the manufacturer or distributor or other reduction.

Section 7-106. Severability. In the event that any provision or provisions of this Act are determined by a court of competent jurisdiction to be invalid for any reason, the remaining provisions of the Act shall be deemed severable from the provision or provisions determined to be invalid and shall remain in full force and effect as though the invalid provisions had never been part of the Act.

Subchapter 2. Prohibition and Conformity With the Laws of the State of Oklahoma

Section 7-201. General Prohibition. It shall be unlawful to buy, sell, give away, consume, furnish, or possess any liquor or beer product containing alcohol for ingestion by human beings or to appear or be found in a place where liquor or beer products are sold and/or consumed, except as allowed for under this Act and the regulations promulgated hereunder.

Section 7-202. Possession for Personal Use. Possession of liquor or beer products for personal use by persons over the age of twenty-one (21) years shall, unless otherwise prohibited by Federal, State or Shawnee Tribe Law or Regulation, be lawful within the Shawnee Indian Country, so long as said liquor or beer product was lawfully purchased from an establishment duly licensed to sell said beverages, whether on or off the Shawnee Indian Country and consumed within a private residence or at a location or facility licensed for the public consumption of liquor or beer.

Section 7-203. Conformity with the Laws of the State of Oklahoma. Federal law prohibits the introduction, possession and sale of liquor in Indian Country (18 U.S.C. 1154 and other statutes), except when the same is in conformity both with laws of the State of Oklahoma and the Tribe (18 U.S.C. 1161). As such, compliance with this Act shall be in addition to and not a substitute for compliance with the laws of the State of Oklahoma. Operators acting pursuant to this Act shall comply with the State of Oklahoma's liquor and beer laws to the extent required by 18 U.S.C. 1161. However, the Tribe shall have the fullest jurisdiction allowed under the Federal laws over the sale of liquor and beer products, and related products or activities within Shawnee Indian Country.

Subchapter 3. Licensing

Section 7-301. Licensing of Liquor and Beer Outlets. The Commission is empowered to do the following duties:

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

B. Adopt and enforce rules and regulations in furtherance of the purposes of this Act and in the performance of its administrative functions.

Section 7-302. Business Council Approval of Liquor and/or Beer Outlet Locations.

A. Business Council Approval of Location. The Business Council shall approve all Liquor and/or Beer Outlet locations on Shawnee Indian Country by way of Tribal Resolution prior to the Commission issuing Licenses to said outlet locations.

B. Business Council Location Review. The Business Council may refuse to approve a Liquor and/or Beer Outlet location on the Shawnee Indian Country, pursuant to Section 7-302 of this Act, if the Business Council has reasonable cause to believe that:

1. The proximity of the Liquor and/or Beer Outlet has a detrimental effect upon a religious, cultural, social or governmental institution established or recognized by the Shawnee Tribe; or

2. The Liquor and/or Beer Outlet is within 100 feet of a residential area; or

3. The Business Council determines it is not in the best interest of the Tribe's health, safety or welfare; or

4. There is any other reason as provided for and by Shawnee Tribe law, custom or regulation.

Section 7-303. Application for Liquor and/or Beer Outlet Licenses.

A. Application. Any person twenty-one (21) years of age or older may apply to the Commission for a Liquor and/or Beer Outlet License.

B. Licensing Requirements. The person applying for said License 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 laws prohibiting the traffic in any spirituous, vinous, fermented or malt liquors, or of the gaming laws of the Tribe, State of Oklahoma, any other Tribe or any State of the United States;

3. He/she has never violated the laws commonly called the “Prohibition laws,” as defined hereunder or under any subsequent regulations; and,

4. He/she has not had any permit or License to sell alcohol, beer or liquor as provided for in § 7-105 hereof revoked by any governmental authority within the previous one (1) year.

C. Processing Application. The Commission shall receive and process applications and be the official representative of the Tribe in all matters related to the receipt of applications, liquor and beer excise tax collections and any other related matters. If the Commission or its authorized representative is satisfied that the applicant is suitable and a responsible person, the Commission or his/her 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 regulations of the Commission.

E. Discretionary Licensing. Nothing herein shall be deemed to create a duty or requirement to issue a License. Issuance of a License is discretionary based upon the Commission's determination of the best interests of the Tribe. A License is a privilege, and not a property right, to sell liquor and/or beer products within the jurisdiction of the Shawnee Tribe at licensed locations, but not operate to confer on, vest in, or license any title, interest or estate in Shawnee Tribe real property.

F. Temporary or Emergency Licensing. An applicant for a Liquor and/or Beer Outlet License may apply for a ninety (90) day temporary or emergency License upon showing of good cause for such issuance pending determination upon the regular License application. Such applicant must show they have a valid similar license from another licensing jurisdiction and meet such other written conditions of the Commission as to ensure the health and safety of the public.

Section 7-304. Liquor and/or Beer Outlet Licenses. Upon approval of an application, the Commission shall issue the applicant a liquor and/or beer License (“License”) which shall be valid for one (1) year from the date of issuance. The License shall entitle the Operator to establish and maintain only the type of outlet permitted on the License. This License shall not be transferable. The Operator must properly and publicly display the License in its place of business. The License shall be renewable at the discretion of the Commission; provided that the Operator submits an application form and application fee as provided for in Section 7-303. D. of this Act. Provided, a temporary or emergency License shall be valid for not more than ninety (90) days and may not be extended.

Section 7-305. 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 and is not regulated by another entity of the Tribe it must be approved by the Commission prior to the initiation. Said other business may be conducted on same premise as a Liquor and/or Beer Outlet, but the Operator shall be required to maintain separate account books for the other business.

Section 7-306. 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 shall constitute grounds for revocation of the Operator's License as well as enforcement of the penalties provided for in Section 7-701 of this Act.

B. Upon determining that any person licensed by the Tribe to sell liquor and/or beer is for any reason no longer qualified to hold such License or reasonably appears to have violated any terms of this License or Shawnee Tribe 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 the Tribe's or the State of Oklahoma's license or of any provision of this Act, the Commission shall immediately serve written notice upon the Operator that he/she must show cause within ten (10) calendar days as to why his/her License should not be revoked or restricted. The notice shall state the grounds relied upon for the proposed revocation or restriction. Provided, the Commission may immediately, without notice, temporarily revoke or restrict a License if the Commission reasonably believes the public health, safety or welfare is threatened.

C. If the Operator fails to respond to the notice within ten (10) calendar days of service, the Commission may issue an Order revoking the License as the Commission deems appropriate, effective immediately. The Operator may within the ten (10) calendar day period file with the Commission a written response and request for hearing before the Commission.

D. At the hearing, the Operator 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 Tribe may present 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 lesser penalty (such as temporary suspension or fine), and such decision shall be final and conclusive with regard to the Commission. The Commission's fine may be in an amount not to exceed Five-Thousand Dollars ($5,000) per incident and/or violation. Provided, each day of continuing violation after notice to cease by the Commission may be considered a separate violation.

F. The Commission's final decision may be appealed by the Operator to the Shawnee Tribal Court, or appropriate CFR Court, upon posting a bond with the Court Clerk in the amount of the Commission's final hearing assessment or ruling, in compliance with such rules and procedure as generally applicable to court proceedings. Provided, any findings of fact of the Commission are conclusive upon the Court unless clearly contrary to law. The purposes of the 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 sustain, reverse or order a new hearing giving such guidance for the conduct of such as it deems necessary for a fair hearing. No damages or monies may be awarded against the Commission, the Commission or its staff, nor the Tribe, and its agents, officers and employees in such an action.

Section 7-307. Discretionary Review. The Commission may refuse to grant a License for the sale of liquor and/or beer products, if the Commission has reasonable cause to believe that the License required by this Act has been obtained by fraud or misrepresentation. The Commission upon proof that said License was so obtained shall upon hearing revoke the same, and all funds paid therefore shall be forfeited.

Subchapter 4. Liquor and Beer Sales and Transportation

Section 7-401. Sales by Liquor and Beer Wholesalers and Transport of Liquor and Beer Upon Shawnee 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 products to the outlet(s). The Commission may, at its discretion, limit or prohibit the purchase of said products from a supplier or Wholesaler for the following reasons: Non-payment of Shawnee Tribe taxes, bad business practices, or sale of unhealthy supplies. A ten (10) calendar day notice of stopping purchases (“Stop Purchase Order”) shall be given by the Commission whenever purchases from a supplier or Wholesaler 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/Wholesalers. Operators shall in their purchase of stock and in their business relations with suppliers and Wholesalers cooperate with and assist in the free flow of information and data to the Commission from suppliers and Wholesalers relating to the sales and business arrangements between suppliers and Operators. The Commission may, at his/her discretion, require the receipts from the suppliers of all invoices, bills of lading, billings or documentary receipts of sales to the Operators. All records shall be kept according to Section 7-402. G. of this Act.

Section 7-402. Sales by Retail Operators; Wholesalers/Operators Records.

A. Commission Regulations. The Commission shall adopt regulations that shall supplement this Act 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 any other appropriate matters and controls.

B. Sales to Minors. No person shall give, sell or otherwise supply any liquor and/or beer to any person under the age of twenty-one (21) years of age either for his or her own use 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 and/or beer on his/her premises and in his/her control unless the Commission allows the consumption of liquor and/or beer and identifies where liquor and/or beer may be consumed on Shawnee Indian Country.

D. Conduct on Licensed Premises.

1. No Operator shall be disorderly, boisterous or intoxicated on the licensed premises or any public premises adjacent thereto which are under his/her control, nor shall he/she permit disorderly, boisterous or intoxicated person to be thereon; nor shall he/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/her premises. For the purpose of this Section, suggestive, lewd or obscene conduct or acts shall be those conduct or acts identified as such by Federal, State of Oklahoma and/or the laws of the Tribe.

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 or beer, 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 reasonable times to inspection by the Commission.

G. Wholesaler's/Operator's Records. The originals or copies of all sales slips, invoices and other memoranda covering all purchases of liquor and/or beer by the Operator or Wholesaler shall be kept on file in the retail premises of the Operator or Wholesaler purchasing the sales 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 cancelled checks, bank statements, and books of accounting, covering and 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 and/or beer by any individual or group shall be confidential and shall not be inspected except by the Commission or the Commission's representative, or the Tribe's Attorney or Attorney General, or upon order of the Shawnee Tribal Court, or appropriate CFR Court.

Section 7-403. Transportation Through Shawnee Indian Country Not Affected. Nothing herein shall pertain to the otherwise lawful transportation of liquor and/or beer through the Shawnee Indian Country by persons remaining upon public roads and highways and where such beverages are not delivered, sold or offered for sale to anyone within the Shawnee Indian Country.

Subchapter 5. Taxation and Audits

Section 7-501. Excise Tax Imposed Upon Distribution of Liquor and/or Beer and Use of Such Tax.

A. General Taxation Authority. The Commission shall have the authority to assess and collect tax on the sale of liquor and/or beer products to the purchaser or consumer. This tax shall be collected and paid to the Commission upon all liquor and/or beer products sold within the jurisdiction of the Tribe. The Business Council shall establish such a rate by resolution and may establish differing 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 Business Council on the wholesale price shall be added to the retail selling price of liquor and/or beer products to be 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 pre-collected for the purpose of convenience and facility.

C. Tax Stamp. Within seventy-two (72) hours after receipt of any liquor and/or beer products by any Wholesaler or retailer subject to this Act, a Shawnee Tribe tax stamp shall be securely affixed thereto denoting the Shawnee Tribe tax thereon. Retailers or sellers of liquor and/or beer products within the Tribe's jurisdiction may buy and sell or have in their possession only liquor and/or beer products which have the Shawnee Tribe tax stamp affixed to each package.

D. Use of Tax Revenue. The excise tax imposed and levied hereunder shall be earmarked for expenditures as specified in Chapter One of this Title.

Section 7-502. Audits and Inspections.

A. Inspections. All of the books and other business records of the Liquor and/or Beer Outlet shall be available for inspection and audit by the Commission or its authorized representative during normal business hours and at all other reasonable times, as may be requested by the Commission.

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.

Subchapter 6. Liability, Insurance and Sovereign Immunity

Section 7-601. Liability for Bills. The Shawnee Tribe and the Commission shall have no legal responsibility for any unpaid bills owed by a Liquor and/or Beer Outlet to a Wholesaler, supplier, or any other person.

Section 7-602. Shawnee Tribe Liability and Credit.

A. Liability. Unless explicitly authorized by Shawnee Tribe statute or regulation, 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 Tribe, Commissioner or the Commission authorized to pledge Shawnee Tribe credit or financial responsibility for any of the expenses of his or her business operation. The Operator shall hold the Tribe 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 own 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 7-603. Sovereign Immunity. Nothing in this Act shall be construed as a waiver or a limitation of the sovereign immunity of the Shawnee Tribe or its agencies, nor their officers or employees. To the fullest extent possible, the Shawnee Tribe expressly retains its sovereign immunity for the purposes of enactment of this Act.

Subchapter 7. Enforcement

Section 7-701. Violations and Penalties. Any person who violates this Act or elicits, encourages, directs, or causes to be violated this Act, or Acts in support of this Act, or regulations of the Commission shall be guilty of an offense and subject to fine. Failure to have a current, valid or proper License shall not constitute a defense to an alleged violation of the licensing laws and/or regulations.

A. Criminal Penalties. Any Indian person convicted of committing any violation of this Act shall be subject to punishment of up to one (1) year imprisonment and/or a fine not to exceed Five Thousand Dollars ($5,000). The judicial system of the Shawnee Tribe shall have jurisdiction over said proceeding(s).

B. Civil Liability. Additionally, any person upon committing any violation of any provision of this Act may be subject to civil action for trespass and upon having been determined by the Shawnee Tribal Court, or appropriate CFR Court, to have committed said violation, shall be found to have trespassed upon the lands of the Tribe and shall be assessed such damages as the Court deems appropriate in the circumstances. The Court also has jurisdiction to enforce any fine, penalty, suspension, revocation or other enforcement action of the Commission. Any Commission action that was not timely appealed is conclusively deemed valid.

C. Any person suspected or having violated any provision of this Act shall, in addition to any other penalty imposed hereunder, be required to surrender any liquor and/or beer products in the person's possession to the officer making the complaint. The surrendered beverages, if previously unopened, shall only be returned upon a finding by the Shawnee Tribal Court, or appropriate CFR Court, after trial or proper judicial proceeding, that the individual committed no violation of this Act.

D. 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.

E. 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 confiscation by the Commission or his/her employees or agents; provided that within fifteen (15) calendar 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 Shawnee Tribal Court, or appropriate CFR Court, shall order the property forfeited and vested with the Tribe.

SECTION TWO. EFFECTIVE DATE. This Act shall become effective on the date upon which, after having been certified by the Secretary of the Interior, it is published in the Federal Register.