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Nisqually Tribal Code

March 2003 Edition

TITLE 29 - LIQUOR

Section 29.01 - General

Historical and Statutory Notes

29.01.02 Sovereign Immunity Preserved

Except for the limited waiver of sovereign immunity provided for in subsection 29.03.06, nothing in this Title is intended or shall be construed as a waiver of the sovereign immunity of the Nisqually Indian Tribe. The Board and its members and employees shall not be authorized, nor shall they attempt to waive the immunity of the Tribe.

29.01.03 Findings and Purpose

(a) The introduction, possession and sale of liquor within Indian country have, since treaty time, been clearly recognized as matters of special concern to Indian tribes and to the United States government. The control of liquor within Indian country remains exclusively subject to United States and tribal government authority.

(b) Beginning with the Treaty of Medicine Creek, 10 Stat. 1132, Art. 9, to which the ancestors of the Nisqually Indian Tribe were parties, the Federal government has respected this tribe's determinations regarding liquor-related transactions and activities on the Nisqually Indian Reservation. At treaty time, this tribe's ancestors desired to exclude "ardent spirits" from their Reservation. Federal law currently prohibits the introduction of liquor into Indian country (18 U. S. C. 1154), leaving to tribes a decision regarding when and to what extent liquor transactions shall be permitted (18 U. S. C. 1161).

(c) Present-day circumstances make a complete ban of liquor within the Nisqually Indian Reservation ineffective and unrealistic. At the same time, a need still exists for strict tribal regulation and control over liquor distribution.

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

(e) In order to provide for increased tribal control over liquor distribution and possession on the Reservation and to provide for an urgently needed additional revenue source, the Nisqually Community Council adopts this liquor ordinance pursuant to the powers vested in it by Article VI, Sec. 1( e), 1( i) and 1( h) of the Constitution and Bylaws of the Nisqually Indian Community of the Nisqually Reservation, Washington and the Act of August 15, 1953, 87
Stat. 588, 18 U. S. C., Sec. 1161.

Historical and Statutory Notes

29.01.04 Relation to Other Tribal Laws

All prior ordinances and resolutions of the Nisqually Indian Tribe regulating, authorizing, prohibiting or in any way dealing with the sale of liquor are hereby repealed and are of no further force and effect.

Historical and Statutory Notes

29.01.05 Definitions

As used in this Title, the following definitions shall apply unless the context clearly indicates otherwise:

(a) "Liquor" includes the four varieties of liquor hereinafter defined (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. 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 or other substance which contains more than one percent of alcohol by weight shall be conclusively deemed to be liquor within the meaning of this Title.

(b) "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.

(c) "Spirits" means any beverage which contains alcohol by distillation, including wines exceeding seventeen percent of alcohol by weight.

(d) "Wine" means any alcoholic 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 seventeen percent of alcohol by weight, including sweet wines fortified with wine spirits, such as port, sherry, muscatel and angelica, not exceeding seventeen percent of alcohol by weight.

(e) "Beer" means any 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 pure water containing not more than four percent of alcohol by weight and not less than one-half of one percent of alcohol by volume. For the purposes of this Title, any such beverage, including ale, stout and porter, containing more than four percent of alcohol by weight shall be referred to as "strong beer."

(f) "Sale" and "sell" include the exchange, barter, traffic, donation with or without consideration, in addition to the selling, 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; and also includes a sale or selling within an area of tribal jurisdiction to a foreign consignee or his agent.

(g) "Tribal Court" means, for purposes of this Title, the Nisqually Tribal Court, which is herewith granted jurisdiction to hear and determine all matters and disputes which may arise under this Title subject to the limitations set forth in subsection 29.01.02.

(h) "Restaurant" means any establishment provided with special space and accommodations where, in consideration of payment, food, without lodgings, is habitually furnished to the public.

(i) "Board" means the Nisqually Tribal Liquor Board.

(j) "Licensee" means the holder of a liquor license issued by the Board, and includes any employee or agent of the licensee.

(k) "Package" means any container or receptacle used for holding liquor.

(l) "Council" means the Nisqually Community Council.

(m) "Reservation" means the Nisqually Indian Reservation.

(n) "Tribe" means the Nisqually Indian Tribe.

(o) "Business Committee" means the Nisqually Tribal Business Committee.

(p) "Nisqually Tribal Enterprise" means any business or activity managed or operated directly by the Tribe, acting through its Council, Business Committee or Board.

Historical and Statutory Notes

Section 29.02 - Regulation

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 2-1981.

29.02.02 Conformity with State Law

Tribally authorized liquor transactions shall comply with Washington State Liquor law standards to the extent required by 18 U. S. C., Section 1161.

Historical and Statutory Notes

29.02.03 Nisqually Tribal Liquor Board

The Business Committee of the Nisqually Indian Tribe is hereby constituted as the "Nisqually Tribal Liquor Board" and empowered to administer this Title, including general control, management, and supervision of all liquor sales, places of sale and sales outlets and to exercise all of the powers and accomplish all of the purposes thereof as herein set forth and may do the following acts and things for and on behalf of and in the name of the Nisqually Indian Tribe:

(a) To adopt and enforce rules and regulations for the purpose of carrying into effect the provisions of this Title and the performance of its functions;

(b) Collecting, auditing and issuing fees, licenses, taxes and permits;

(c) Purchasing, warehousing and selling of liquor in an original package;

(d) Executing all contracts, papers and documents in the name of the Nisqually Indian Tribe or the Nisqually Tribal Liquor Board;

(e) Providing housing for its activities and all necessary equipment and fixtures with which to do business;

(f) Hiring and firing of employees, fixing their duties and delegating to such specific powers and authorities;

(g) Paying all customs, duties, excises, charges and obligations whatsoever related to the business of the Board;

(h) Performing all matters and things incidental to and necessary to conduct its business and carry out its duties and functions.

Historical and Statutory Notes

Section 29.03 - Licensing

Historical and Statutory Notes

(b) The Board shall receive and process applications and shall be the official representative of the Tribe in matters relating to liquor licenses, taxes, fees or other matters arising under this Title.

(c) Each license must be approved by the Liquor Board prior to issuance.

Historical and Statutory Notes

29.03.03 Annual Fees

Every liquor license issued under this Title shall be subject to the payment of an annual fee in an amount determined by Tribal Council and shall be subject to all conditions and restrictions imposed by this Title or duly promulgated regulations in force from time to time.

Historical and Statutory Notes

29.03.04 Issuance

(a) Applications for liquor licenses shall be submitted in a form to be prescribed by the Board. The Board may, within its sole discretion, subject to the provisions of this Title and the provisions of the Indian Civil Rights Act (25 U. S. C. 1301 at seq.), issue, condition the issuance of , or refuse to issue a liquor license applied for by a member of the Nisqually Tribe or by a Nisqually Tribal Enterprise.

(b) For the purpose of considering any application for a license, the Board may cause an inspection of the premises to be made or by approval of detailed engineering or architectural plans for construction and may inquire into all matters in connection with the construction and operation of the premises and may require that a bond be posted in an amount
sufficient to assure that plans be followed.

(c) No liquor license shall be issued to:

(i) A person who is not a member of the Nisqually Indian Tribe;

(ii) A partnership or limited partnership, unless all of the partners thereof are qualified to obtain a license, as provided in this section;

(iii) A corporation organized under the laws of any state;

(iv) A person who has been convicted of a violation of any federal, tribal or state law concerning the manufacture, possession or sale of alcoholic liquor within the last preceding five years, or has forfeited his or her bond to appear in court within the last preceding five years to answer charges for any such violation when such conviction or bail forfeiture is a felony;

(v) A person who is not twenty-one (21) years of age.

(e) Every license shall be issued in the name of the applicant and no license shall be transferable, nor shall the holder thereof allow any other person to use the license.

(f) Before the Board shall issue a liquor license, notice of the application for the license shall be posted in public places on the Reservation and comments shall be received on the application for a period of twenty (20) days at the Board's office.

(g) Before the Board shall issue any license, it shall give due consideration to the location of the business to be conducted under such license with respect to existing or planned land uses in adjacent or proximately adjacent areas.

(h) Every licensee shall post and keep posted its license or licenses in a conspicuous place on the licensed premises.

29.03.05 Inspection

(a) All licensed premises used in the storage or sale of liquor or any premises or parts of premises used or in any way connected physically or otherwise with the licensed business, shall at all times be opened to inspection by any tribal inspector, tribal police officer or Board member.

(b) Every person, being on any such premises and having charge thereof, who refuses or fails to admit a tribal inspector, tribal police officer or Board member, demanding to enter therein in pursuance of this section in the execution of his duty, or who obstructs or attempts to obstruct the entry of such inspector or officer of the peace, or who refuses or neglects to
make any return required by this Title or the regulations passed pursuant thereto, shall thereby be deemed to have violated this Title.

29.03.06 Suspension and Cancellation

(a) The Board may, for violation of this Title, suspend or cancel any license; and all rights of the licensee to keep or sell liquor thereunder shall be suspended or terminated as the case may be. Prior to suspension or cancellation, the Board shall send notice of its intent to suspend or cancel the license to the licensee. The Board shall provide notice to the licensee at least ten (10) days prior to the suspension or cancellation. The licensee shall have the right, prior to the suspension or cancellation date, to apply to the Tribal Court for a hearing to determine whether the license was rightfully suspended or canceled. The sovereign immunity of the Nisqually Tribe is waived for this hearing; provided, however, that such waiver shall not be construed to allow an award of money damages against the Tribe nor any other relief other than a declaration of rights, nor shall it be construed to waive the sovereign immunity of the Tribe in any court but the Tribal Court.

(b) Upon suspension or cancellation of a license, the licensee shall forthwith deliver up the license to the Board. Where the license has been suspended only, the Board shall return the license to the licensee at the expiration or termination of the period of suspension with a memorandum of the suspension written or stamped upon the face thereof in red ink.


29.03.07 Expiration

Unless sooner cancel, every liquor license issued by the Board shall expire at midnight on the thirtieth day of January of the year following its issuance.

Historical and Statutory Notes

29.03.08 Liquor Purchase by Licensees

All licensees under this Title shall purchase their liquor for ultimate resale from the Nisqually Tribal Liquor Board.

Section 29.04 - Illegal Activities

(b) Proof of Unlawful Sale - Intent: In any proceeding under this Title, proof of one unlawful sale of liquor shall suffice to establish prima facie the intent or purpose of unlawfully keeping liquor for sale in violation of this Title.

(c) Use of Seal: No person other than an employee of the Nisqually Tribal Liquor Board shall keep or have in his or her possession any legal seal prescribed under this Title unless the same is attached to a package which has been purchased from a tribal liquor outlet, nor shall any person keep or have in his or her possession any design in imitation of any official
seal prescribed under this Title or calculated to deceive by its resemblance to any official seal, or any paper upon which such design is stamped, engraved, lithographed, printed or otherwise marked. Any person violating this provision shall be in violation of this Title.

(d) Illegal Sale of Liquor by Drink or Bottle: Any person who sells any liquor by the drink or by the bottle without a license to do so, shall be in violation of this Title.

(e) Illegal Transportation, Still or Sale Without Permit: Any person who shall sell or offer for sale or transport in any manner, any liquor in violation of this Title, or who shall operate or have in his or her possession without a permit, any mash capable of being distilled into liquor, shall be in violation of this Title.

(f) Illegal Purchase of Liquor: Any person within the boundaries of the Nisqually Indian Reservation who buys liquor from any person other than at a properly authorized tribal liquor outlet or tribal licensee shall be in violation of this Title.

(g) Illegal Possession of Liquor - Intent to Sell: Any person who keeps or possesses liquor on his or her person or in any place or on premises conducted or maintained by him or her as a principal agent with the intent to sell it contrary to the provisions of this Title, shall be in violation of this Title.

(h) Sales to Persons Apparently Intoxicated: Any person who sells liquor to a person apparently under the influence of liquor shall be in violation of this Title.

(i) Intoxication in a Public Place: Any person who is intoxicated who remains in any public place shall be in violation of this Title.

(j) Drinking in a Public Conveyance: Any person engaged wholly or in part in the business of carrying passengers for hire and every agent, servant or employee of such person who shall knowingly permit any person to drink any liquor in any public conveyance shall be in violation of this Title. Any person who shall drink any liquor in a public conveyance shall be
in violation of this Title.

(k) Furnishing Liquor to Minors: No person under the age of twenty-one (21) years shall consume, acquire, or have in his or her possession any alcoholic beverages except when such beverage is being used in connection with religious services or for medicinal purposes by a licensed physician's written direction. No person shall give or otherwise supply liquor to any person under the age of twenty-one (21) years to consume liquor on his or her premises or on any premises under his or her control, except as allowed in this section. Any person violating this section shall be in violation of this Title.

(l) Sales of Liquor to Minors: Any person who shall sell any liquor to any person under the age of twenty-one (21) years shall be in violation of this Title.

(m) Unlawful Transfer of Identification: Any person who transfers in any manner an identification of age to a minor for the purpose of permitting such minor to obtain liquor shall be in violation of this Title, provided that corroborative testimony of a witness other than the minor shall be a requirement for a judgment against the defendant.

(n) Possession of False or Altered Identification: Any person who attempts to purchase liquor through the use of false or altered identification which falsely purports to show the individual to be over the age of twenty-one (21) years shall be in violation of this Title.

(o) Identification - Proof of Minimum Age: Where there may be 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:

(i) Liquor Control Authority Card of Identification of any State;

(ii) Driver's license of any State or "Identi-Card", issued by any State Department of
Motor Vehicles;

(iii) United States Active Duty Military Identification;

(iv) Passport; and

(v) Nisqually Tribal Identification or Enrollment card.

(p) Defense to Action for Sale to Minors: It shall be a defense to a suit for serving liquor to a person under twenty-one (21) years of age if such person has presented a card of identification and;

(i) In addition to the presentation by the holder and verification by the licensee of such card of identification, the licensee shall require the person whose age may be in question to sign a card and place a date and number of his or her card of identification thereon. Such statement shall be upon a five-inch by eight-inch file card, which card shall be filed alphabetically by the licensee at or before the close of business on the day on which the statement is executed, in the file box containing a suitable alphabetical index and the card shall be subject to examination by any tribal police officer, employee of the Board or Board member at all times.

(ii) Such card in the possession of a licensee may be offered as a defense in any hearing held by the Tribal Court for serving liquor to the person who signed the card.

(q) Pharmaceutical Exceptions: Nothing in this Title shall apply to or prevent the sale, purchase or consumption of:

(i) Any pharmaceutical preparation containing liquor which is prepared by a druggist according to a formula of the pharmacopoeia of the United States, or the dispensatory of the United States; or

(ii) Any proprietary or patent medicine; or

(iii) Wood alcohol or denatured alcohol, except in the case of the sale, purchase or consumption of wood alcohol or denatured alcohol for beverage purposes either alone or combined with any other liquid or substance.

Historical and Statutory Notes

29.04.02 Contraband - Seizure - Forfeiture

(a) All liquor within the Nisqually Reservation held, owned or possessed by any person or licensee operating in violation of this Title is hereby declared to be contraband and subject to forfeiture to the Tribe. Upon presentation of a sworn affidavit, the Tribal Judge shall issue an order directing a Tribal Law Enforcement Officer to seize contraband liquor within this
Reservation and deliver it to the Board. A copy of the court order shall be delivered to the person from whom the property was seized or shall be posted at the place where the property was seized.

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

(c) Notice of the hearing of at least ten (10) days 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 other public places on the Reservation. 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.

(d) Judgment of Forfeiture - Disposition of Proceeds of Property: If, upon the hearing, the evidence warrants, or, if no person appears as claimant, the Tribal Court shall thereupon enter a judgment of forfeiture, and order such articles sold or destroyed forthwith.

Historical and Statutory Notes

(b) Institution of Action: The Board shall institute and maintain an action in the Tribal Court in the name of the Tribe to abate and perpetually enjoin any nuisance declared under this Title. The plaintiff shall not be required to give bond in this action. Restraining orders, temporary injunctions and permanent injunctions may be granted in the cause and upon final judgment
against the defendant, the Court may also order the room, house, building, boat, vessel, vehicle, structure or place closed for a period of up to one (1) year or until the owner, lessee, tenant, or occupant thereof shall give bond of sufficient surety to be approved by the court in the penal sum of not less than One Thousand Dollars ($1,000.00), payable to the Tribe and conditioned that liquor will not be thereafter manufactured, kept, sold, given away, furnished, or otherwise disposed of thereof in violation of the provisions of this Title or any other applicable tribal law, and that he or she will pay all fines, costs and damages assessed against him or her for any violations of this Title or other tribal liquor laws. If any conditions
of the bond be violated, the whole amount may be recovered as a penalty for the use of the Tribe. Any action taken under this section shall be in addition to any other penalties provided in this Title.

(c) Abatement: In all cases where any person has been found by the Tribal Court to have violated this Title, applicable tribal regulations or tribal laws relating to the manufacture, importation, transportation, possession, distribution and sale of liquor, an action may be brought in Tribal Court by the Board to abate as a nuisance any activity involved in the
commission of the offense, and in any such action a certified copy of the record of such conviction shall be admissible in evidence and prima facie evidence that the room, house, building, boat, vessel, vehicle, structure or place against which such action is brought is a public nuisance.

Historical and Statutory Notes

Section 29.05 - Liquor Revenue

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 2-1981.


29.05.02 Liquor Sales Excise Tax
(a)

(i) There is hereby levied and shall be collected a tax upon each sale of liquor; except beer and wine, in whatever packages or container, in the amount of three (3) cents per fluid ounce or fraction thereof contained in such package or container.

(ii) There is hereby levied and shall be collected a tax upon each sale of beer and wine in the amount of five percent (5%) of the selling price.

(b) These excise taxes shall be added to the sale price of the liquor sold by the licensee and shall be paid to the Nisqually Tribal Liquor Board which shall collect the same and hold these taxes in trust until remitted to the Treasurer of the Nisqually Indian Tribe on the twenty-fifth (25th ) day of each month to be deposited in the Tribal Treasury. The taxes provided for herein shall be the only taxes applicable to activities of the Nisqually Liquor Board or licensees.

(c) All tax revenues transferred to the Tribal Treasurer for deposit in the Tribal funds shall be used for the benefit of the Reservation and the Tribal community. In appropriating from these revenues, the Council, acting through the Nisqually Business Committee, shall give priority to:

(i) Strengthening tribal government, which shall include, but not be limited to, strengthening Tribal Court and Law Enforcement systems and the system for administering and enforcing this Title.

(ii) Fire protection, roads and water and sewage services.

(iii) Health, education and other social services and land acquisition and development needs. The Council, acting through the Nisqually Business Committee, shall have the discretion to determine which of the above priorities shall receive an appropriation and the amount of the appropriation for a given priority.

(d) The Nisqually Liquor Board and all licensees shall keep such records required by the Tribal Treasurer to determine that amount of taxes owing and shall complete the tax returns in accordance with instructions from the Tribal Treasurer.

(e) Amendments to the amounts and types of taxes levied on the sale of liquor in this section may be made from time to time by the Nisqually Tribal Liquor Board.

Historical and Statutory Notes

Section 29.06 - Violations, Penalties, and Remedies

29.06.02 Jurisdiction and Other Relief

The Nisqually Tribal Court shall have jurisdiction over any case brought by the Nisqually Tribe for violations of this Title. The Tribal Court may, in addition to the above penalty, grant to the Tribe such other relief as is necessary and proper for the enforcement of this Title, including but not limited to injunctive relief against acts in violation of this Title.

Historical and Statutory Notes

Section 29.07 - Other

(b) If any application of this Title or any clause, part or section thereof, is adjudged invalid, such judgment shall not be deemed to render that provision inapplicable to other persons or circumstances.

Historical and Statutory Notes

29.07.02 Effective Date

This Title shall be and become effective upon the date that the Secretary of the Interior or his designee certifies this Title and publishes it in the Federal Register.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 2-1981. 14