Issuing and Enforcing Tribal Protection Orders
This webpage provides an overview of the federal definition of a protection order, discusses the national data supporting why protection orders are needed for Native victims, and emphasizes the importance of language needed to activate the federal mandate in the protection order to enforce the Tribal protection order as it is written. Tribal civil authority to issue and enforce protection orders involving any person and civil/criminal authority to enforce violations of the protection order occurring in Indian country.
When discussing the Violence Against Women Act (VAWA), this website will address the relevant sections of the 2013 VAWA Reauthorization (VAWA 2013) and the 2022 VAWA Reauthorization (VAWA 2022). Please note that Tribes may vary in implementation status.
On March 15, 2022, President Biden signed the Violence Against Women Act Reauthorization bill (VAWA 2022) as a part of the Omnibus funding bill (H.R. 2471). VAWA 2022 builds on VAWA 2013’s Tribal jurisdiction provision (covering domestic violence, dating violence, and protection order violations) by incorporating additional categories of criminal conduct that can be prosecuted by Tribes against non-Indians including sexual violence, stalking, sex trafficking, child violence, obstruction of justice, and assault against Tribal justice personnel. VAWA 2022 also creates a pilot program for Indian Tribes in Alaska to exercise Special Tribal Criminal Jurisdiction within Alaska Native villages; provides formal authorization for the Tribal Access Program (TAP); Additionally, VAWA 2022 established a Reimbursement Program that Tribal governments will be able to access to cover some costs related to the investigation, prosecution and incarceration of non-Indians, and reestablishes the U.S. Bureau of Prisons (BOP) Tribal Prisoner Program first authorized as a pilot in the 2010 Tribal Law and Order Act.
For additional information, please see the resource publication Tribal Criminal Jurisdiction over Non-Indians: Violence Against Women Act Reauthorization of 2022 and www.TribalVAWA.org.
1. What is a protection order?
A protection order is a legal document that is available to victims of certain crimes in most jurisdictions. A protection order is a legal order issued by a court to protect a named person. For example, many jurisdictions provide protection orders for victims of stalking, harassment, sexual assault, domestic violence and other types of violence. 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 for violations of a protection order may also be civil and/or criminal in nature and may vary from jurisdiction to jurisdiction depending upon the law of the enforcing jurisdiction.
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. The federal definition of a protection order for full faith and credit purposes is very expansive and can be found at 18 U.S.C. 2266(5):
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.
The protected party/parties should be named in the protection order. There are generally two terms that apply to civil protection orders depending on whether the order was issued before or after a full hearing.
- Ex parte orders are available in most jurisdictions in emergency situations. Ex parte (From One Party) 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. The time frame for the full hearing is usually set forth in the applicable statutes. The maximum length of time the order may be in effect is also set forth in applicable statutes, but the court will determine the exact length of the order equal to or less than the maximum length allowed by the statutes, based upon the evidence.
2. Why are Tribal protection orders needed?
Congress found, in Section 801 of Title VIII-Safety For Indian Women, that American Indians and Alaska Natives were:
- 2.5 times as likely to experience violent crimes
- At least 2 times more likely to experience rape or sexual assault
- More than 4 in 5 American Indian and Alaska Native women have experienced violence in their lifetime
- The vast majority of American Indian and Alaska Native victims of violence—96 percent of women victims and 89 percent of male victims—have experienced sexual violence by a non-Indian perpetrator at least once in their lifetime.
3. Is the language in a protection order important?
The language in the protection order is very important. Assuming the protection language meets certain requirements set out in 18 U.S.C. 2265(a) and (b), other jurisdictions are mandated to give federal full faith and credit to the protection order exactly as it is written. Further, the protection order language may be the basis for a criminal prosecution of Indians and/or non-Indians for a violation of the protection order. See Special Tribal Criminal Jurisdiction. Additionally, the language in the protection order may trigger the federal firearms statute against possessing ammunition or firearms during the period of a valid protection order. See 18 USC 922(g)(8) (Prohibits a person from possessing a firearm if subject to a qualifying protection order). See also 18 USC 922(g)(9) (Prohibits a person from possessing firearms who had been convicted in any court of a misdemeanor crime of domestic violence.)
4. Does federal law mandate that states recognize and enforce qualifying Tribal protection orders?
Yes, 18 U.S.C. 2265(a) and (b) requires all Tribes, territories, and states to recognize and enforce protection orders from any other jurisdiction that meet VAWA requirements of (b). (qualifying protection order)
This is known as giving full faith and credit to the Tribal protection order provisions. Full faith and credit means the Tribal protection order will be enforced, according to the terms in the Tribal protection order and in jurisdictions outside the Tribal jurisdiction that is issuing the order. Full faith and credit means that a victim maintains protection regardless of where they are located. This principle of law focuses on providing a consistent level of safety and legal recourse for victims with a qualifying protection order across all jurisdictions where they might move or travel. To activate the full faith and credit mandate of federal law, the protection order must meet part (b) below. Alaska’s authority to issue and enforce protection orders is also addressed.
18 U.S.C. 2265(a) sets forth:
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.
18 U.S.C. 2265(b) sets forth:
(b) Protection Order. — A protection order issued by a State, Tribal, or territorial court is consistent with this subsection if—
(1) such court has jurisdiction over the parties and matter under the law of such State, Indian Tribe, or territory; and
(2) 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. 2265(c) adds additional Full Faith and Credit requirements. For more information see Full Faith and Credit.
5. What is the scope of Tribal civil authority to issue and enforce protection orders?
“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.” 18 U.S.C. 2265(e)
Congress clarified 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. Note that this statute provides two potential civil jurisdictional anchors: (1) the matter must arise in Indian country or (2) otherwise be within the authority of the Indian Tribe. For a discussion of the phrase “otherwise within the authority of the Indian Tribe” please see “Tips for Drafting Jurisdiction and Due Process Provisions”.
The federal statute specifically mentions two illustrations of civil enforcement remedies available to enforce 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 that may include 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 civilly 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 (utulsa.edu) in the 2008 Tulsa Law Review.
6. What is the scope of Tribal criminal authority to issue and enforce protection orders and violations of protection orders?
If Tribal law permits, Tribal prosecutors may seek no contact orders in criminal cases that can be drafted to fit within the federal definition of protection orders at 18 U.S.C. 2265(c). Further, if those criminal no contact orders meet the federal definition of a protection order and the requirements of full faith and credit at 18 U.S.C. 2265(a) and (b), then the criminal no contact order is enforceable as a protection order in federal, state and/or Tribal jurisdictions.
Violations of Tribal criminal no contact orders in Indian country by Indians may constitute a criminal act according to the Tribal code. Any violations of the criminal no contact order (that meet the federal definition of a protection order and meet the full faith and credit requirements) may give rise to a criminal act in whatever jurisdiction the violation takes place. It is important to note that criminal no contact orders that may qualify as a protection order usually expire at some point in the criminal process such as an acquittal, adjudication, plea agreement, or upon expiration of an appeal time, if applicable. Tribal law will govern the expiration and terms of the order as set forth by the Tribal judge.
For Indians violating protection orders in Indian country, Tribes have full criminal authority over those violations committed in Indian country. U.S. v. Lara, 541 U.S. 193 (2004). Further, VAWA 2022 recognizes Tribal inherent criminal jurisdiction over non-Indians who commit violations of a protection order against an Indian victim for those Tribes that meet the statutory requirements. For more information see Special Tribal Criminal Jurisdiction.
7. Do Alaska Tribes have civil and criminal authority to issue and enforce Protection Orders?
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”. However, Section 910 – Special Rule for the State of Alaska was repealed in 2014 by Public Law 113–275.
Congress specifically addressed this question in the context of Alaska in VAWA 2022 and expressly recognized and affirmed “the inherent authority of any Indian Tribe occupying a Village in [Alaska] to exercise criminal and civil jurisdiction over all Indians present in the Village” subject to Indian Civil Rights Act (ICRA). See Pub. Law No. 117-103 (codified at 25 USC 1305 (a)). Congress likewise provided that Alaska Native Tribes have full civil jurisdiction over the issuance and enforcement of protection orders involving any person within the Village or otherwise under the authority of the Tribe. See 25 USC 1305 (b). See also DOJ: Concurrent Tribal Authority Under PL 83-280 in Alaska (Oct. 2023) and see DOI, Office of Solicitor: Partial Withdrawal of Solicitor’s Opinion on Governmental Jurisdiction of Alaska Native Villages Over Land and Nonmembers.