Chapter 29-1 GENERAL PROVISIONS

CHAPTER 29-1
GENERAL PROVISIONS

29-1-1 Authority.

This code is enacted pursuant to the Act of August 15, 1953, 67 Stat. 586, codified at 18 U.S.C. §1161, by the authority of the Prairie Band Potawatomi Tribal Council under the Constitution of the Prairie Band Potawatomi Nation, Article V, Sections 1(g) and (i).

(Enacted by PBP TC No. 2014-262, October 8, 2014)

29-1-2 Purpose.

The purpose of this code is to provide civil laws for the tribal regulation and control of liquor within the Prairie Band Potawatomi Reservation. The enactment of this code governing liquor on the Reservation will increase the ability of the tribal government to control the sale, distribution and possession of liquor and will provide revenue for the continued operation and strengthening of the tribal government and the delivery of tribal government services for the regulation of liquor and the treatment and reduction of alcohol abuse and related social problems on the Reservation. The civil penalties, taxes and other liabilities imposed by this code are reasonably necessary and related to the expense of governmental administration necessary to maintain law and order and public health and safety on the Reservation. It is the legislative intent of the Tribal Council that all violations of this code, whether committed by tribal members, non-member Indians or non-Indians, be considered civil in nature rather than criminal.

(A) The introduction, possession, and sale of liquor on the Prairie Band Potawatomi Reservation are matters of special concern to the Prairie Band Potawatomi Nation.

(B) Federal law prohibits the introduction of liquor into Indian Country (18 U.S.C. §1154 and other statutes), except as provided therein, and expressly affirms and delegates to tribes the governmental authority to regulate and control liquor on Indian reservations. (18 U.S.C. §1161).

(C) The Tribal Council finds that a need exists for strict regulation and control over liquor transactions within the Reservation because of the many problems associated with the sale, possession, distribution, and consumption of liquor. The Tribal Council finds that tribal control and regulation of liquor is necessary to address serious social problems relating to alcohol use on the Reservation. This code is intended to protect the members of the Nation on the Reservation by prohibiting and regulating conduct that threatens and directly affects their health, safety and welfare. The Tribal Council further finds that:

(1) Alcohol abuse is a serious problem on the Reservation. Alcohol abuse leads to frequent early loss of life and morbidity among tribal members and other residents of the Reservation. For example, the accident death rates due to homicide, suicide, motor vehicle accidents and diseases related to alcohol abuse are several times higher among tribal members than among the general population of the United States, and a great number of the serious trauma cases treated by the Indian Health Service (IHS) on reservations are alcohol related. According to the IHS, the rates for the Nation’s adults with alcohol problems are four (4) times that of non-Reservation residents in northeast Kansas.

(2) Alcohol abuse causes and perpetuates dysfunctional families on the Reservation. The vast majority of child abuse, spousal abuse and elderly abuse that occurs on the Reservation is alcohol related.

(3) Fetal alcohol syndrome and fetal alcohol effect occur at alarming rates among children born within Indian tribes. Children born with prenatal alcohol damage have difficulty caring for themselves all of their lives. The Nation has a compelling interest in protecting children from fetal alcohol syndrome and fetal alcohol effect.

(4) Unemployment is high among tribal members on the Reservation and poverty is widespread. Many tribal members suffer serious economic deprivation due to alcohol abuse, ranging from unemployment to malnutrition.

(5) Alcohol abuse contributes to the vast majority of the crime which takes place within tribal territory and places heavy burdens on the tribal criminal justice system and the tribal courts.

(6) Alcohol abuse has a devastating impact on our families and the Reservation community, and the Tribal Council has a duty to combat alcohol abuse.

(7) Both the Nation and the federal government devote tremendous resources to prevent and treat problems of alcohol abuse on the Reservation, yet even the combined prevention and treatment programs sponsored by the Nation and the federal government are not sufficient to address the problems of alcohol abuse. Far more must be done.

(8) The Nation must exercise its regulatory authority to combat the problems of alcohol abuse on the Reservation through a comprehensive, consistent and clearly defined plan to minimize alcohol consumption on the Reservation and to discourage unsafe drinking practices. In addition, the Nation must raise additional revenue to combat the problems of alcohol abuse.

(D) For the spiritual well-being of our children and families and for the survival and strengthening of our people, the Prairie Band Potawatomi Nation strives for the elimination of alcohol abuse and its associated problems from the Prairie Band Potawatomi Reservation. In furtherance of this purpose, the Tribal Council hereby declares that it is the policy of the Nation:

(1) To minimize alcohol consumption on the Reservation;

(2) To discourage unsafe drinking practices, including, but not limited to, driving while intoxicated, alcoholism or chronic intoxication, violence related to alcohol abuse, public intoxication and drinking during pregnancy;

(3) To minimize the adverse health effects of drinking alcohol through prevention, regulation and treatment;

(4) To protect unborn children, who are people in their own right, from prenatal alcohol damage;

(5) To control the supply and conditions of availability of liquor through regulation, education and taxation;

(6) To maximize education, prevention and treatment programs to fight alcohol abuse; and

(7) To cause those who sell, consume or promote alcohol on the Reservation to bear a greater proportion of the costs associated with alcohol use and abuse through civil penalties concerning and taxation of liquor and liquor dealers and dedicating the revenue derived for alcohol abuse education, enforcement, prevention, regulation and treatment;

(8) It is in the best interests of the Nation to enact a tribal code governing liquor sales on the Reservation which provides for exclusive purchase, distribution, and sale of liquor only on tribal lands within the exterior boundaries of the Reservation. Further, the Nation has determined and hereby requires that said purchase, distribution, and sale shall take place only at tribally owned gaming facility complexes and other tribally owned enterprises.

(Enacted by PBP TC No. 2014-262, October 8, 2014)

29-1-3 Definitions.

These words shall have the following meanings unless the context clearly requires otherwise:

(A) “Alcohol” means that substance known as ethyl alcohol, hydrated oxide of ethyl, alcohol, ethanol, or spirits of wine, from whatever source or by whatever process produced.

(B) “Bar” means any establishment with special space and accommodations for the sale of liquor by the glass and for consumption on the premises.

(C) “Beer” means any alcoholic beverage 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 water.

(D) “Liquor” includes all fermented, spirituous, vinous, or malt liquor or combinations thereof, and mixed liquor, a part of which is fermented, and every liquid or solid or semisolid or other substance, patented or not, containing distilled or rectified spirits, potable alcohol, beer, wine, brandy, whiskey, rum, gin aromatic bitters, and all drinks or drinkable liquids and all preparations or mixtures capable of human consumption and any liquid, semisolid, solid, or other substances, which contain alcohol.

(E) “Liquor store” means any store at which liquor is sold and, for the purpose of this code, including stores only a portion of which are devoted to sale of liquor.

(F) “Malt liquor” means beer, strong beer, ale, stout and porter.

(G) “Nation” means the Prairie Band Potawatomi Nation.

(H) “Package” means any container or receptacle used for holding liquor.

(I) “Person” means any natural person, firm, partnership, joint venture, association, corporation, municipal corporation, estate, trust, business receiver, or any group or combination acting as a unit and the plural as well as the singular in number.

(J) “Public place” includes state, county, tribal or federal highways or roads; buildings and grounds used for school purposes; public dance halls and grounds adjacent thereto; soft drink establishments, public buildings, public meeting halls, lobbies, halls and dining rooms of hotels, restaurants, theaters, gaming facilities, entertainment centers, stores, garages, and filling stations which are open to and/or are generally used by the public and to which the public is permitted to have unrestricted access; public conveyances of all kinds and character; and all other places of like or similar nature to which the general public has unrestricted right of access, and which are generally used by the public.

(K) “Reservation” means all territory within the exterior boundaries of the area recognized as the Prairie Band Potawatomi Nation’s Reservation and all other territory (1) which is or in the future may be located outside of said boundaries, and (2) to which it is possible to extend the Nation’s jurisdiction or authority, including, without limitation, territory within the exterior boundaries of Indian country of the Nation or of its members and all property held by the United States in trust for the Nation or for a member of the Nation.

(L) “Sale” and “sell” include exchange, barter and traffic, and also include the selling or supplying or distributing of liquor, by any means whatsoever, by any person to any person.

(M) “Spirits” means any beverage which contains alcohol obtained by distillation, including wines exceeding seventeen (17) percent of alcohol by weight.

(N) “Tribal Council” means the governing body of the Prairie Band of Potawatomi Nation.

(O) “Tribal Court” means the Prairie Band Potawatomi Tribal Court.

(P) “Wine” means any alcoholic beverage obtained by fermentation of the natural contents of fruits, vegetables, honey, milk or other products containing sugar, whether or not other ingredients are added during or after fermentation, and containing not more than seventeen (17) percent of alcohol by weight, including sweet wines fortified with wine spirits, such as port, sherry, muscatel and angelica, not exceeding seventeen (17) percent of alcohol by weight.

(Enacted by PBP TC No. 2014-262, October 8, 2014)

29-1-4 Rules, Regulations and Enforcement.

(A) It shall be a violation of this code for any person:

(1) To in any manner introduce, sell, offer for sale, distribute, transport, consume, use or possess liquor on the Reservation except as expressly permitted by this code;

(2) To buy liquor on the Reservation from any person other than a tribally licensed person;

(3) To engage wholly or in part in the business of carrying passengers for hire, and every agent, servant, or employee of such person, and to permit any person to drink liquor in any public conveyance or for any person to consume liquor in a public conveyance;

(4) Under the age of twenty-one (21) years to consume, acquire or have in possession any liquor. No person owning or controlling a premises shall permit any other person under the age of twenty-one (21) to consume liquor on such premises except as expressly exempted by this code;

(5) To sell or provide any liquor to any person under the age of twenty-one (21) years;

(6) To transfer in any manner an identification of age to a person under the age of twenty-one (21) years for the purpose of permitting such person to obtain liquor; provided, that there is corroborative testimony of a witness other than the underage person;

(7) To attempt to purchase liquor through the use of false or altered identification which falsely purports to show the individual as being over the age of twenty-one (21) years; or

(8) To possess, introduce or consume liquor at a place or premises that is or would be considered a public, common or other nuisance under any tribal, state or federal statutory or common law.

(B) Any person who promotes any activity or owns or controls land on which there is any activity that is a violation of this code shall be liable for and subject to the same penalties and proceedings as the person who directly commits the violation.

(C) Any person who commits a violation of this code shall be liable to pay the Nation up to $5,000 per violation as civil penalties.

(D) When requested by the provider of liquor, every person shall be required to present official documentation of the bearer’s age, signature and photograph. Official documentation includes one (1) of the following:

(1) Driver’s license or identification card;

(2) United States active duty military card; or

(3) Passport.

(E) Liquor which is possessed contrary to the terms of this code is declared to be contraband. Any tribal agent, employee or officer who is authorized by the Tribal Council to enforce this code shall seize all contraband and preserve it in accordance with the provisions established for the preservation of impounded property. Upon being found in violation of the code, the party shall forfeit all right, title and interest in the items seized which shall become the property of the Nation.

(Enacted by PBP TC No. 2014-262, October 8, 2014)

29-1-5 Abatement.

(A) Any room, house, building, vehicle, structure, land or other place where liquor is sold, manufactured, bartered, exchanged, given away, furnished, consumed or possessed or otherwise disposed of in violation of the provisions of this code or of any other tribal law, and all property kept in and used in maintaining such place, is hereby declared to be a nuisance.

(B) The Chairman of the Tribal Council or, if the Chairman fails or refuses to do so, by a majority vote, the Tribal Council may institute and maintain an action in the Tribal Court in the name of the Nation to abate and perpetually enjoin any nuisance declared under this chapter. In addition to other remedies at tribal law, depending upon the severity of past offenses, the risk of offenses in the future, the effect of the violator’s activity on public health, safety or welfare and any other appropriate criteria, the Tribal Court may order the room, house, building, vehicle, structure, land or place closed or it may require the owner, lessee, tenant, or occupant thereof to give bond payable to the Nation, of sufficient sum and conditioned that liquor will not be thereafter manufactured, kept, sold, bartered, exchanged, given away, furnished, possessed, consumed or otherwise disposed of in violation of the provisions of this code or of any other applicable tribal law and that such person will pay all penalties, fees, costs and damages assessed against him for any violation of this code or other tribal laws. If any conditions of the bond be violated, the bond may be applied to satisfy any amounts due to the Nation. No order or injunction closing any business for a violation of this code shall be issued without granting the opportunity to have a full evidentiary and adversary hearing.

(C) In all cases where any person has been found in violation of this code, an action may be brought to abate as a nuisance any real estate or other property involved in the violation of the code and violation of this code shall be prima facie evidence that the room, house, building, vehicle, structure, land or place against which such action is brought is a public nuisance.

(Enacted by PBP TC No. 2014-262, October 8, 2014)

29-1-6 Power of Enforcement.

(A) In furtherance of this code, the Tribal Council shall have the following powers and duties:

(1) To publish and enforce rules and regulations governing liquor on the Reservation;

(2) To employ managers, accountants, security personnel, inspectors and such other persons as shall be reasonably necessary to allow the Tribal Council to perform its functions;

(3) To issue licenses permitting the sale, manufacture or distribution of liquor on the Reservation;

(4) To bring proceedings in the Tribal Court or other appropriate forum to enforce this code as necessary;

(5) To seek penalties, taxes, damages, fees and other appropriate remedies, orders and injunctions for the violation of this code;

(6) To make such reports as may be required; and

(7) To collect taxes and fees levied or set by the Tribal Council and to keep accurate records, books and accounts.

(B) In the exercise of its powers and duties under this code, the Tribal Council and its individual members shall not:

(1) Accept any gratuity, compensation or other thing of value from any liquor wholesaler, retailer, or distributor or from any licensee;

(2) Waive the immunity of the Nation from suit without the express written consent and resolution of the Tribal Council.

(C) Inspection Rights. All premises on which liquor is sold, consumed, possessed or distributed shall be open for inspection by the Nation at all reasonable times for the purposes of ascertaining whether the rules and regulations of the Tribal Council and this code are being complied with.

(D) Hearings and Appeals. Violations of this code shall be deemed a civil offense against the Nation. Civil actions by the Nation against violators may proceed in hearings initiated and held by the Nation’s Tax Commissioner or other hearing officer designated by Tribal Council. Any such civil proceeding shall comply with all due process requirements of the Indian Civil Rights Act. The Tax Commissioner or the designee may impose penalties, damages, costs, taxes and attorneys’ fees and take any other actions reasonably necessary to carry out this code. Liabilities imposed under this code shall be a lien upon the violator’s property located on the reservation until paid and may be enforced and executed upon through the Tribal Court. Orders issued hereunder may be appealed to Tribal Court and considered under the arbitrary and capricious standard of review.

(Enacted by PBP TC No. 2014-262, October 8, 2014)

29-1-7 Sales of Liquor.

(A) License Required. Sales of liquor on the Reservation may only be made at businesses which hold a Prairie Band Potawatomi liquor license.

(B) Sales for Cash. All liquor sales on the Reservation shall be on a cash-only basis and no credit shall be extended to any person, organization, or entity, except that the provision does not prevent the payment for purchases with use of credit cards such as Visa, MasterCard, American Express, etc.

(C) Sale for Personal Consumption. All sales shall be for the personal use and consumption of the purchaser. Resale of any liquor on the Reservation is prohibited. Any person who is not licensed pursuant to this code who purchases liquor on the Reservation and sells it, whether in the original container or not, shall violate this code.

(Enacted by PBP TC No. 2014-262, October 8, 2014)

29-1-8 Licensing.

(A) Procedure. In order to control the consumption of liquor and the proliferation of establishments on the Reservation which sell or serve liquor by the bottle or by the drink, all persons or entities which desire to sell liquor on the Reservation must apply to the Nation for a license.

(B) Application. Any person or entity applying for a license to sell or serve liquor on the Reservation must fill in the application provided for this purpose by the Nation and pay such application fee as may be set from time to time by the Tribal Council for this purpose. Said application must be filled out completely in order to be considered.

(C) Issuance of License. The Tribal Council may issue a license if it believes that such issuance is in the best interests of the Nation. This code permits tribally licensed liquor sales and consumption at gaming facility complexes and other tribally owned enterprises on the Reservation. Issuance of a license for any other purposes will not be considered to be in the best interests of the Nation.

(D) Period of License. Each license may be issued for a period not to exceed two (2) years from the date of issuance.

(E) Renewal of License. A licensee may renew its license if the licensee has complied in full with this code; provided, however, that the Tribal Council may refuse to renew a license if it finds that doing so would not be in the best interests of the health and safety of the Nation.

(F) Revocation of License. The Tribal Council may suspend or revoke a license due to one or more violations of this code upon notice and hearing at which the licensee is given an opportunity to respond to any charges against it and to demonstrate why the license should not be suspended or revoked.

(G) Hearings. Within fifteen (15) days after a licensee is mailed written notice of a proposed suspension or revocation of the license, of the imposition of penalties or of other adverse action proposed by the Tribal Council under this code, licensee may deliver to the Tribal Council a written request for hearing on whether the proposed action should be taken. A hearing on the issues shall be held before a person or persons appointed by the Tribal Council and a written decision will be issued. Such decisions will be considered final unless an appeal is filed with the Tribal Court within fifteen (15) days of the date of mailing the decision to the licensee. The Tribal Court will then conduct a hearing and will issue an order using an arbitrary and capricious standard of review. All proceedings conducted under this and any other sections of this code shall be in accord with due process of law.

(H) Nontransferability of Licenses. Licenses issued by the Tribal Council shall not be transferable and may only be utilized by the person or entity in whose name it was issued.

(Enacted by PBP TC No. 2014-262, October 8, 2014)

29-1-9 Taxes.

(A) Sales Tax. The Tribal Council shall have the authority, as may subsequently be specified under tribal law, to levy and to collect a tax on each retail sale of liquor on the Reservation based upon a percent of the retail sales price. All taxes from the sale of liquor on the Reservation shall be paid over to the General Treasury of the Nation.

(B) Taxes Due. All taxes for the sale of liquor on the Reservation are due on the fifteenth day of the month following the end of the calendar quarter for which the taxes are due or on such other dates as specified by tribal regulation.

(D) Reports. Along with payment of the taxes imposed herein, the taxpayer shall submit a quarterly accounting of all income from the sale or distribution of liquor, as well as for the taxes collected.

(E) Audit. As a condition of obtaining a license, the licensee must agree to the review or audit of its books and records relating to the sale of liquor on the Reservation. Said review or audit may be done periodically by the Nation or through its agents or employees whenever, in the opinion of the Tribal Council, such a review or audit is necessary to verify the accuracy of reports.

(Enacted by PBP TC No. 2014-262, October 8, 2014)

29-1-10 Revenue.

Revenue collected under this code, from whatever source, shall be expended for administrative costs incurred in the enforcement of this code. Excess funds shall be subject to appropriation by the Tribal Council for governmental social services, including education, prevention and treatment programs to fight alcohol abuse on the Reservation.

(Enacted by PBP TC No. 2014-262, October 8, 2014)

29-1-11 Exceptions.

(A) The introduction, distribution, transport, consumption, sale, offer for sale, use, consumption and possession of liquor is permitted:

(1) For consumption at a gaming facility complex or other tribally owned enterprise;

(2) For scientific research or manufacturing products other than liquor;

(3) For medical use under the direction of a physician, medical or dental clinic, or hospital;

(4) For preparations not fit for human consumption such as cleaning compounds and toilet products, and for flavoring extracts; or

(5) For sacramental use such as wines delivered to priests, rabbis, and ministers.

(B) The introduction, distribution, transport, consumption, use and possession of liquor for personal consumption by a person legally present on private, noncommercial property are permitted, subject to applicable tribal law.

(Enacted by PBP TC No. 2014-262, October 8, 2014)

29-1-12 Severability and Effective Date.

(A) If any provision or application of this code is determined by review to be invalid, such determination shall not be held to render ineffectual the remaining portions of this code or to render such provisions inapplicable to other persons or circumstances.

(B) The Secretary of the Interior certified this code and published in the Federal Register on April 28, 2010.

(Enacted by PBP TC No. 2014-262, October 8, 2014)

29-1-13 Amendment and Construction.

(A) This code may only be amended by a vote of the Tribal Council or as otherwise allowed by tribal law.

(B) Nothing in this code shall be construed to diminish or impair in any way the rights or sovereign powers of the Nation or tribal government.

(Enacted by PBP TC No. 2014-262, October 8, 2014)