This website is intended to serve as an online resource pertaining to drafting and enforcing tribal protection orders. Note that each tribe is unique with respect to tribal constitutions and codes. The reader should consult the specific tribal constitution and tribal codes for additional requirements regarding drafting and enforcement of tribal protection orders.
- What is a protection order?
Protection orders may be known by a variety of names to include injunction, restraining order, civil restraining order or victim protection order just to name a few. A protection order is a legal document that is available to victims of domestic violence in most jurisdictions. A protection order is a legal order issued by a court to protect a certain person from abuse. Statutes may require a certain relationship between the petitioner and defendant that will vary from jurisdiction to jurisdiction. A protection order can be either civil or criminal and protection order remedies may vary from jurisdiction to jurisdiction depending upon the law of the issuing jurisdiction. Enforcement of violations of a protection order may also be civil and/or criminal in nature.
There are generally two types of civil protection orders available to victims of abuse. Ex parte orders are available in most jurisdictions in emergency situations. Ex parte orders are issued without a full hearing if the victim can demonstrate immediate danger. Permanent orders can be issued after the defendant has been provided with notice of the allegations in the petition/application for a protection order and an opportunity to be heard.
- Why are tribal protection orders needed?
- Domestic and sexual violence against American Indian and Alaska Native Women has reached epidemic proportions [Section 202 (a)(5)(A) of Tribal Law and Order Act]
- 34% of American Indian and Alaska Native Women will be raped in their lifetime [Section 202 (a)(5)(B) of Tribal Law and Order Act]
- 39% of Native American women will be victims of domestic violence [Section 202 (a)(5)(C) of Tribal Law and Order Act]
- Non-Indians commit 88% of all violent crime against Native Women [Patricia Tjaden & Nancy Thoenne, U.S. Dep’t of Justice, Prevalence, Incidence, and Consequences of Violence Against Women: Findings From the National Violence Against Women Survey 22 (2000).]
- What is the scope of tribal civilauthority to issue and enforceprotection orders?
Congress recently clarified in the Violence Against Women Act (VAWA) 2013 Reauthorization that tribal courts have full civil jurisdiction to issue and enforce protection orders involving any person if the protection order arose anywhere in the Indian country of the tribe issuing the protection order or if the order was issued within the authority of the Indian tribe. 18 U.S.C. 2265(e) (updated 2013) provides that:
For purposes of this section, a court of an Indian tribe shall have full civil jurisdiction to issue and enforce protection orders involving any person, including the authority to enforce any orders through civil contempt proceedings, to exclude violators from Indian land, and to use other appropriate mechanisms, in matters arising anywhere in the Indian country of the Indian tribe (as defined in section 1151) or otherwise within the authority of the Indian tribe.
The statute specifically mentions two illustrations of civil enforcement remedies available to enforce violations of protection orders by any person (including non-Indians). The statute also recognizes that there are “other appropriate mechanisms” potentially available to enforce violations of protection orders such as monetary penalties, community service, restitution, shaming, forfeiture, and posting of a Peace Bond. Tribes should refer to their tribal codes to determine which, if any, of these civil remedies may be available to enforce violations of protection orders. For additional information on the types of civil remedies tribes may consider when drafting tribal codes see Creative Civil Remedies Against Non-Indian Offenders in Indian Country in the 2008 Tulsa Law Review at Creative Civil Remedies against Non-Indian Offenders in Indian Country (utulsa.edu).
- What do the tribal provisions of VAWA 2013 mean for Alaska Tribes?
As originally enacted, VAWA 2013 contained Section 910 – Special Rule for the State of Alaska which provided that both Section 904 (Tribal Jurisdiction Over Crimes of Domestic Violence) and Section 905 (Tribal Protection Orders) “shall only apply to the Indian country (as defined in section 1151 of title 18, United States Code) of the Metlakatla Indian Community, Annette Island Reserve”. Section 910 – Special Rule for the State of Alaska was repealed in 2014 by Public Law 113–275. Unfortunately, however, the practical impact of the repeal is still limited.
The VAWA 2013 tribal provisions regarding civil protection orders (Section 905 of VAWA 2013, codified at 18 U.S.C. § 2265 (e)) are very important for Alaska tribes. Section 2265(e) says that tribes shall have “full civil jurisdiction to issue and enforce protection orders involving any person, including the authority to enforce any orders through civil contempt proceedings, to exclude violators from Indian land, and to use other appropriate mechanisms, in matters arising anywhere in the Indian country of the Indian tribe (as defined in section 18 U.S.C. §1151) or otherwise within the authority of the Indian tribe.” Note that this statute provides two civil jurisdictional anchors for tribes in matters (1) arising anywhere in the Indian country of the tribe or (2) otherwise within the authority of the Indian tribe. Due to the lack of Indian country in Alaska (see below), the second anchor may prove most useful for Alaska tribes with respect to the civil authority to issue and enforce protection orders.
Unfortunately, the VAWA 2013 tribal provisions regarding the exercise of Special Domestic Violence Criminal Jurisdiction (codified at 25 U.S.C. §1304) are likely currently only relevant for the Metlakatla Indian Community. Section 1304 requires that the criminal conduct must occur in the Indian country of the participating tribe. 25 U.S.C. §1304(c)(1). Indian country is defined in 18 U.S.C. §1151 to include: (a) all lands within the limits of any Indian reservation (the Metlakatla Indian Community is the only Indian Reserve in Alaska); (b) a dependent Indian community; or (c) Indian allotments to which the Indian title has not been extinguished. Note that the 1998 Supreme Court decision in Alaska v. Native Village of Venetie held that most tribal lands in Alaska are not considered “Indian country” for jurisdictional purposes making the criminal jurisdictional analysis problematic for most Alaska Native Villages.
- What is the scope of tribal criminalauthority to prosecute non-Indians for acts of domestic violence and protection order violations?
In addition to clarifying tribal civil jurisdiction to issue and enforce protection orders in cases involving all persons, VAWA 2013 also recognizes tribal inherent criminal jurisdiction over non-Indians who commit certain acts of domestic violence, dating violence and protection order violations for those tribes meeting the requirements of VAWA 2013. For more information see Special Domestic Violence Criminal Jurisdiction.
- Is the language in a protection order important?
The language in the protection order is very important. Assuming the protection order meets certain requirements set out in the Violence Against Women Act 2013 (VAWA 2013), specific language present in the protection order may mandate whether other jurisdictions are required by federal law (VAWA 2013) to give full faith and credit to the protection order. Further, the language regarding any violation of the protection order may be the basis for a criminal prosecution of Indians and/or non-Indians (VAWA 2013). Additionally, the language in the protection order may trigger the federal firearms statutory prohibition [provide link to new firearms page] against possessing ammunition or firearms during the period of a valid protection order.
- Are states required to recognize and enforce tribal protection orders?
Yes. The Violence Against Women Act (VAWA 2013) requires all tribes, territories, and states to recognize and enforce protection orders from any other jurisdiction. 18 U.S.C. 2265(a) provides as follows:
Any protection order that is consistent with subsection (b) of this section by the court of one State, Indian tribe or territory (the issuing State, Indian tribe, or territory) shall be accorded full faith and credit by the court of another State, Indian tribe, or territory (the enforcing State, Indian tribe, or territory) and enforced by the court and law enforcement personnel of the other State, Indian tribal government or Territory as if it were the order of the enforcing State, Indian tribe, or territory.
In order to be provided full faith and credit (See Federal Laws: Full Faith and Credit), the protection order should meet the definition of a protection order found at 18 U.S.C. 2266(5): and meet specific VAWA requirements in 18 U.S.C. 2265(b) .
18 U.S.C. 2265(5) sets forth:
Protection order .— The term “protection order” includes— (A) any injunction, restraining order, or any other order issued by a civil or criminal court for the purpose of preventing violent or threatening acts or harassment against, sexual violence, or contact or communication with or physical proximity to, another person, including any temporary or final order issued by a civil or criminal court whether obtained by filing an independent action or as a pendente lite order in another proceeding so long as any civil or criminal order was issued in response to a complaint, petition, or motion filed by or on behalf of a person seeking protection; and (B) any support, child custody or visitation provisions, orders, remedies or relief issued as part of a protection order, restraining order, or injunction pursuant to State, tribal, territorial, or local law authorizing the issuance of protection orders, restraining orders, or injunctions for the protection of victims of domestic violence, sexual assault, dating violence, or stalking.
18 U.S.C. 2266(b) sets forth:
(b) Protection Order. — A protection order issued by a State, tribal, or territorial court is consistent with this subsection if—
- such court has jurisdiction over the parties and matter under the law of such State, Indian tribe, or territory; and
- reasonable notice and opportunity to be heard is given to the person against whom the order is sought sufficient to protect that person’s right to due process. In the case of ex parte orders, notice and opportunity to be heard must be provided within the time required by State, tribal, or territorial law, and in any event within a reasonable time after the order is issued, sufficient to protect the respondent’s due process rights.
Take note that if the case involves cross or counter petitions for a protection order, 18 U.S.C. 2266(c) adds additional Full Faith and Credit requirements:
Cross or Counter Petition.—A protection order issued by a State, tribal, or territorial court against one who has petitioned, filed a complaint, or otherwise filed a written pleading for protection against abuse by a spouse or intimate partner is not entitled to full faith and credit if—
(1) no cross or counter petition, complaint, or other written pleading was filed seeking such a protection order; or
(2) a cross or counter petition has been filed and the court did not make specific findings that each party was entitled to such an order.
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