The Violence Against Women Act (VAWA 2013) requires all tribes, territories, and states to recognize and enforce protection orders from any other jurisdiction. VAWA was updated in 2000, 2005, and 2013. This page provides current federal law pertaining to tribal protection orders and full faith and credit.
Tribal Court Authority
18 U.S.C. 2265(e) (updated 2013)
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.
Definition of “Protection order”
18 U.S.C. 2266(5)
- The term “protection order” includes any injunction or other order issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communication with or physical proximity to, another person, including any temporary or final order issued by a civil and criminal court whether obtained by filing and independent action or as a pendent elite 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
- 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.
Full Faith and Credit Requirement
18 U.S.C. 2265(a)
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.
What Protection Orders Qualify for Full Faith and Credit?
18 U.S.C. 2265(b)
A protection order issued by a State or 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 defendant’s due process rights.
In this day and age where judges rely heavily on forms, it is important to review your protection order forms to ensure that the VAWA Full Faith and Credit Language is specifically set out in your protection order form. A quick review of your protection order form would include asking whether the form contains this language:
- This court has jurisdiction over the parties and matter under the law of the Indian tribe (consider inserting the name of your tribe for the words “Indian tribe” and insert the tribal code statute number that allows the tribal court to issue protection orders)
- reasonable notice and opportunity to be heard has been 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 tribal law. (consider inserting the tribal code statute number that sets forth the notice requirements related to a protection order being issued by the tribal court. For example, how many days does a defendant have to appear to contest a protection order?)
Mutual Orders Not Enforceable
18 U.S.C. 2265(c)
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:
- no cross or counter petition, complaint, or other written pleading was filed seeking such a protection order; or
- 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.
Consider adding this language to your protection order form. Be aware that mutual protection orders may still be an issue in some courts. This would be the case where a defendant files for a protection order against the petitioner who has a filing for a protection order pending before the court. he court must require the defendant to make a written filing requesting a protection order AND the court must make specific findings about the defendant’s need for a protection order to comply with the full faith and credit mandates for mutual protection orders. If you are involved in a mutual protection order case, be aware that both of these requirements must be met in order for the defendant’s protection order to be entitled to full faith and credit.
No Registration Requirement
18 U.S.C. 2265(d)(2)
Any protection order that is otherwise consistent with this section shall be accorded full faith and credit, notwithstanding failure to comply with any requirement that the order be registered or filed in the enforcing State or tribal jurisdiction.
Notice to Defendant
18 U.S.C. 2265(d)
- Notification — A State, Indian tribe or territory according full faith and credit to an order by a court of another State, Indian tribe or territory shall not notify or require notification of the party against whom a protection order has been issued that the protection order has been registered or filed in that enforcing State tribal or territorial jurisdiction unless requested to do so by the party protected under such order.
- Limits on Internet Publication or Registration Information — A State, Indian tribe, or territory shall not make available publicly on the Internet any information regarding the registration or filing of a protection order, restraining order, or injunction in either the issuing or enforcing State, tribal or territorial jurisdiction, if such publication would be likely to publicly reveal the identity or location or the party protected under such order. A State, Indian tribe, or territory may share court-generated and law enforcement-generated information contained in secure, governmental registries for protection order enforcement purposes.