WHERAS,  the Swinomish Indian Senate is the duly constituted governing body of the Swinomish Tribal Community, and 

WHERAS,  under the Constitution and By-laws of the Tribe the Swinomish Indian Senate is charged with the duty of protecting the health, security and general welfare of the Swinomish Tribal Community, and 

WHERAS,  by virtue of its status as an Indian Tribes, the Swinomish Tribal Community is authorized by Federal Law to possess unstamped cigarettes and other tobacco products on the Swinomish Indian Reservation and to regulate their sale and distribution, and 

WHEREAS,  the Swinomish Indian Senate deems it essential to the health, security and general welfare of the Swinomish Tribal Community to enact a Comprehensive Tobacco Ordinance regulating sale and distribution  of cigarettes and other tobacco products and levying an excise tax thereon, and

WHEREAS,  the Swinomish Indian Senate has heretofore enacted Ordinance No. 29, but now deems it beneficial to the community to change some sections of that ordinance and to increase the amount of the excise tax,

NOW THEREFORE  the Swinomish Indian Senate does hereby promulgate and enact the following amended Tobacco Tax Ordinance to supersede any previous Tobacco Ordinance, and be it enacted that: 

Section 1. Title:

This ordinance shall be known as the Swinomish Tribal Community Tobacco Ordinance. 

Section 2. Definitions: 

(1) “Tribe” sha1l mean the Swinomish Indian Tribal Community. 
(2) “Senate” shall mean the Swinomish Indian Senate. 
(3) "Manager" shall mean the Tribal Operations Manager of the Swinomish Tribal Community.
(4) "Tobacco products" shall mean cigarettes, cigars, smoking tobacco, snuff, chewing tobacco, and other kinds and forms of tabacco prepared in such manner as to be suitable for chewing or smoking. 
(5) “Retail Selling Price” shall mean the ordinary, customary or usual price paed by the customer for each tobacco product, less the tax levied by this ordinance. 
(6) “Wholesale distribution Price” shall mean the price paid for tobacco products by the Tribe or its agents together with all freight charges and other expenses incurred by the Tribe or its agents in their receipt and distribution of tobacco products to a tobacco outlet.
(7) "Tobacco Outlet" shall mean a licensed retail sa1es business selling tobacco products on the Swinomish Indian Reservation. 
(8) “Operator” shall mean an enrolled member of the Swinomish Tribal Community licensed by the Tribe to manage a tobacco outlet.
(9) "Agent" shall mean a person authorized by the manager to purchase tobacco products for distribution to a tobacco outlet.
(10) "Direct Purchase" shall mean the purchase of tobacco products from a source other than the Tribe, for resale in his or her tobacco outlet, by an operator who is authorized as an agent.
(11) "Distribution" shall mean the purchase of tobacco products by an operator for resale in his or her tobacco outlet either from the Tribe or by direct purchase.

Section 3. Establishment of Tobacco Outlets: 
 
The Senate shall establish as many tobacco outlets within the Swinomish Indian Reservation as the Senate in its sole descretion deems necessary to provide adaquate service to the consumers of cigarettes and tobacco products. 

Section 4. Nature of Outlets: 

Any tobacco outlet established hereunder shall be managed by an operator pursuant to a license granted by the Senate hereunder, and shall also be managed pursuant to a Federal Indian Trader’s License as provided in Section 7 hereof. 

Section 5. Application for Tobacco Outlet License: 

Any enrolled member of the Tribe may apply upon an application form provided by the manager for a tobacco outlet license.  The application shall state the name and address of the applicant and shall be signed by the applicant and shall be accompanied by nonrefundable application fee of $100.00. 

Section 6. Tobacco License: 

A tobacco outlet license shall be issued to the applicant for a period of one year if the Senate deems it beneficial to the Tribe. The license shall entitle the applicant to establish and operate a tobacco outlet at the location described in the application. The license shall be nontransferrable. Upon the request of the operator and the payment of a renewal fee of $100.00, the manager may renew the license for a period of one year if the manager finds that the operator has satisfactorily complied with the requirements of this ordinance.

Section 7. Traders License: 

No tobacco outlet license shall be issued to an applicant until the applicant has obtained a Federal Indian Trader's License from the Superintendent of the Everett Indian Agency.  Revocation of the Federal Indian Trader's License shall be grounds for revocation of the operator's tobacco outlet license. 

Section 8. Purchase by Tribe or its Agents:

The manager may act as the agent of the Tribe or may authorize any person or persons, including operators, to act as agents of the Tribe for the purchase of tobacco products for distribution to a tobacco outlet. All tobacco products purchased hereunder shall remain the property of the Tribe until sale to the ultimate consumer. Payment by an operator of the wholesale price either to the Tribe or by direct purchase from a source other than the Tribe pursuant to the Section 9. hereof, shall entitle the operator to custody of the tobacco products for resale to the ultimate consumer, at the operator's sole risk in the event of loss whatsoever.

Section 9. Distribution to Tobacco Outlets:

An operator shall purchase all tobacco products for resale in his or her tobacco outlet from the Tribe; provided, however, that an operator who is authorized by the manager as an agent pursuant to Section 8. hereof may make direct purchase of tobacco products from sources other than the Tribe for resale in his or her tobacco outlet. Such direct purchase of tobacco products by an operator who is authorized as an agernt shall not alter the Tribe's ownership of the tobacco products until the sale to the ultimate consumer pursuant to Section 8. hereof.

Section 10: Excise Tax Imposed:

There is levied and there shall be collected as hereinafter provided a tax upon the distribution of all tobacco products sold or distributed hereunder in the amount of 5.5 percent of the retail selling price thereof. The tax levied hereunder shall be added to the retail selling price products sold to the ultimate consumer. 

The Senate may establish a differant tax rate as it deems in the best interest of the Tribe. It shall be the policy of the Senate that the tax rate in the best interest of the Tribe at any time is a rate that provides sufficient revenue in light of the circumstances then in exhistence without placing the tobacco outlets established hereunder at a competitive disadvantage.

Section 11. Reports of Sales and Distribution Audits and Payment of Tax:

An operator shall submit to the manager bi-monthly reports of all re-tail sales of tobacco products from his or her tobacco outlet on forms approved by the manager.  An operator shall make bi-monthly payment to the manager of all taxes hereunder.  An operator who is authorized as an agent shall also make bi-monthly reports to the manager of all direct purchases of tobacco products from sources other than the Tribe, either by submitting copies of all invoices for such direct purchases or by otherwise reporting all such direct purchases on forms approved by the manager.

All sales and direct purchases occurring during the period from the first (1st) day through the fifteenth (15th) day of each month shall be reported, and all taxes thereon shall be paid, by not later than the twenty-fifth (25th) day of that month.  All sales and direct pur-chases occuring during the period from the sixteenth (16th) day through the last day of each month shall be reported, and all taxes thereon shall be paid, by not later than the tenth Cloth) day of the month immediately following.

An operator shall also make all records of the operation of his or her tobacco outlet available to the manager for audit at least four (4) times each year at reasonable times designated by the manager.

Section 12. Remuneration of Operators:

As remuneration for providing a location and managing a tobacco outlet, an operator shall be entitled to the gross revenue derived from sale of tobacco products in his or her tobacco outlet in excess of the wholesale distribution price and the excise tax levied hereunder.

Section 13. Restricted Sales to Minors: 

An operator may not sell any tobacco products to any person under the age of 18 years. 

Section 14. Other Business by Operator:  

An operator may conduct another business simultaneously with managing a tobacco outlet if such other business has not been forbidden by the Senate and if such other business is operated pursuant to all applicable ordinances and laws. The other business may be conducted on the same premises, and the operator shall not be required to maintain separate books of account for the other business. 

Section 15. Tribal Immunity - Liability - Credit: 

An operator shall not attempt or be authorized to waive the sovereign immunity of the Tribe from suit, nor shall an operator attempt or be authorized to create any liability on behalf of the Tribe or utilize Tribal credit.

Section 16. Operating Without License: 

No person shall operate a tobacco outlet on the Swinomish Indian Reservation without having in effect a valid tobacco outlet license issued pursuant hereto. 

Section 17.  Liability Insurance: 

An operator shall maintain liability insurance upon his or her premises in the sum of not less than $25,OOO.OO. An operator shall also insure that the Tribe is at all times named as the principal beneficiary on a valid and current fidelity bond in the amount of not less than $10,000.00 which gaurantees to reimburse the Tribe for losses caused by the dishonest or fraudulent conduct of the operator or the operator's employees. 

Section 18. Revocation of Tobacco Outlet License: 

Failure of an operator to abide by the requirements of this ordinance and any additional requirement imposed by the Senate will constitute grounds for revocation of the operator's tobacco outlet license as well as enforcement of the penalties provided in Section 19. below. 

Section 19. Violation -- Penalties: 

Any person violating the provisions of this ordinance shall be guilty of an offense and subject to a fine in Tribal court of not less than $5O.OO nor more than $250.00 and forfeiture of all remaining stock of tobacco products distributed hereunder and situated in his tobacco outlet.  The Tribal Law Enforcement officers shall be empowered to seize forfeited tobacco products. 

Section 20. Authorized Delegate of the Senate:

The manager shall be authorized as the delegate of the Senate to perform all acts herein assigned to the manager, and to perform any other act hereunder as directed by the Senate. The Senate may authorize any other person as its delegate to perform any act hereunder in the place of or in addition to the manager.

Section 21. Seperability:

If any provisions of this ordinance or its application to any person or circumstances is held invalid, the remainder of this ordinance, or the application of the provision to other persons or circumstances is not affected.

     THE FORGOING was duly enacted by the Swinomish Indian Senate in regular meeting this 3rd day of October, 1978, by a vote of  6 for, 0 against. 
  

Nancy Wilbur(signature) 
Secretary

  I, the undersigned Secretary of the Swinomish Indian Senate of the Swinomish Indian Tribal Community hereby certify that the Swinomish Indian Senate, composed of eleven members, of whom five constitute a quorum enacted the within and foregoing ordinance at a (illegible) meeting duly and regularly ca1led, held on the 14 day of April, 1972 , and that the forgoing Ordinance No. 29 was duly adopted at such a meeting by a vote of __6__ ayes, and __0__ nays, and __1__ abstention, and __3__absent.. 
  Dated this _13th_ day of October 1978. 

Nancy Wilbur (signature) 
Secretary