Jurisdiction refers to the power or authority of a court over a particular subject matter, territory and person. Jurisdiction is one of the most confusing aspects of tribal law. From a tribal perspective, tribal jurisdiction to issue and enforce protection orders is based upon inherent tribal sovereignty. Nevertheless, federal laws have placed some restrictions upon a tribe’s inherent sovereign powers to issue and enforce protection orders in matters involving non-members making a determination whether a tribe has the power to issue protection orders complex.
- Subject Matter JurisdictionSection 2265 (e) clarified tribal court jurisdiction to issue protection orders over members and non-members for matters arising in Indian country.
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.
In matters arising outside of Indian Country involving non-members, the federal restrictions on tribal civil jurisdiction may still apply. Two U.S. Supreme Court cases held that tribes have limited powers over matters involving non-members on non-Indian lands. Montana v. United States, 450 U.S. 544 (1981) and Strate v. A-1 Contractors, 5520 U.S. 438 (1997). resulted in a test to determine whether a tribal court has jurisdiction over non-members in civil matters. The Montana test requires the tribal court to find that: 1) the parties entered into a consensual relationship with the tribe or its members through commercial dealing, contracts, leases or “other arrangements” or 2) the conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. If neither of the two factors listed in the Montana test are present, the tribal courts may not exercise civil jurisdiction over non-members on non-Indian lands.
An example of language related to the Montana Test is taken from the Tulalip Tribal Code.
Tulalip Tribal Code
4.25.020 Legislative findings.
It is the intent of the Tulalip Board of Directors and the Tribal community that the official response to domestic violence and family violence shall be that the Tribes will not tolerate or excuse violent behavior under any circumstances. All people, whether they are elders, male, female, or children of our Tribes, or of the entire community residing on the Tulalip Reservation, are to be cherished and treated with respect. Domestic violence and family violence are not acceptable and are contrary to traditional Tulalip Tribal culture and values of honoring the family, and are contrary to the interest of our community and sense of well-being and growth. Domestic violence and family violence will not be tolerated.
The Tribes finds that domestic violence and family violence imperil the very subsistence of the Tribal community and the residents of the Reservation. The Tribes recognizes the Department of Justice findings that one in three Native women is sexually assaulted in her lifetime and that 70 percent of reported assaults are committed by non-Native men against Native women. A community response to domestic and family violence is necessary because domestic and family violence crimes and incidents impact the community as a whole. These crimes redirect Tribal resources – whether personnel, financial, public safety or other resources – elsewhere and require an immediate response. As a result of this impact on Tribal resources, the Tribes deems it necessary to address domestic violence and family violence to the fullest extent permitted by laws existing now or as may be adopted or amended in the future.
The Tribes further recognizes that there is a distinction between intimate partner domestic violence and family member violence. Domestic violence involves an intimate partner relationship and dynamics of power and control are overwhelmingly present in the action. Family violence is committed against all other family or household members. Both are reprehensible actions that require specialized recognition and enhanced provisions than what might be otherwise available to victims of crimes, or remedies available in civil actions. [Res. 2013-379].
- Jurisdiction Over the PartiesJurisdiction over the parties may require at least one party to have sufficient contacts with the tribal community so that an exercise of jurisdiction over the matter does not seem unfair. Tribal courts can generally exercise personal jurisdiction over any party that maintains sufficient “minimum contacts” with the reservation sufficient to comply with the due process clause of the Indian Civil Rights.] [See www.tribal-institute.org/lists/icra1968.htm]
- Notice to the Defendant and an Opportunity to be HeardTribal laws will vary regarding how notice must be provided to the defendant and the timeframe in which the defendant may respond to the allegations in the protection order. See 18 U.S.C. 2265(b). See also Enforcing Protection Orders/Full Faith and Credit
Tips for Drafting Protection OrdersThe protection order language should indicate that court has subject matter jurisdiction, jurisdiction over the parties and that the court has provided the Defendant with notice and an opportunity to be heard by the court in order to engage the full faith and credit provisions of VAWA. It can be helpful for tribal court orders to reference any relevant federal and tribal laws relied upon by the court. For example, a tribal court order may reference the court’s power to enforce domestic violence protection orders under 18 U.S.C. § 2265 (e) of VAWA 2013 in addition to referencing relevant tribal code provisions. Referencing applicable federal laws may help bolster a tribal court’s determination of jurisdiction if the matter undergoes federal appellate review
For example, the protection may include language such as:
- The court has subject matter jurisdiction under Tribal code [cite specific applicable tribal code provisions] and 25 USC 2265(e) based upon the following facts: __________________________________;
- The court has jurisdiction over the parties according to _____ of the tribal code and based upon the following facts:
- The Defendant has been served in accordance with _____ of the tribal code (or will be served according to _____ of the tribal code) and the court notes proof of service in the court file;
- According to _____ of the tribal code, the Defendant has/will be provided with an opportunity to be heard on this matter. A hearing is scheduled for _________. (or the Defendant was present at the regularly scheduled hearing on _______ date, or, the Defendant was not present despite being duly served with notice according to _____ of the tribal code as evidenced by the proof of service document in the court file.
The most prudent approach is for tribal courts to make specific findings in every civil protection order case as to:
- whether the Due Process requirements of the Indian Civil Rights Act regarding notice and opportunity to be heard have been complied with;
- whether the defendant is a citizen/member of the tribe, a non-Indian, or a citizen/member of another tribe;
- whether the incident giving rise to the civil litigation occurred on tribal land, on fee land, or on non-tribal rights-of-way; and
- whether the parties had entered into a consensual relationship with the tribe or its members through commercial dealing, leases, or “other arrangements,” or whether the conduct in question threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.
It can be helpful for tribal court orders to reference any relevant federal and tribal laws relied upon by the court. For example, a tribal court order may reference the court’s power to enforce domestic violence protection orders under 18 U.S.C. § 2265 (e) of VAWA 2013 in addition to referencing relevant tribal code provisions.
Referencing applicable federal laws may help bolster a tribal court’s determination of jurisdiction if the matter undergoes federal appellate review.