This website is intended to serve as an online resource pertaining to drafting and enforcing tribal protection orders. 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.
1 Does Federal law mandate that states recognize and enforce qualifying Tribal protection orders?
Federal law, 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 the requirements of (b). (a 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 in jurisdictions outside the Tribal jurisdiction issuing the order according to the terms in the Tribal protection 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. This website utilizes the term “qualifying protection order” to denote protection orders that contain activating language for federal full faith and credit. To activate the Full Faith and Credit mandate of federal law, the protection order must meet part (b) below.
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.
2. What is a Tribe’s Authority to Issue a Civil Protection Order over any person?
To determine whether a Tribe has civil authority to issue a protection order involving Indians or non-members, known as subject matter jurisdiction, the first order is to review applicable Tribal law. Once it has been determined that Tribal law provides for a Tribe to issue a civil protection order involving any person, the federal law reinforces Tribal inherent authority to do so.
18 U.S.C. 2265(e) sets forth:
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.
3. What is the Definition of “Protection Order”?
Applicable Tribal law may provide for several types of protection orders that might include protection orders that address sexual assault, harassment, and/or stalking. To determine whether the Tribal protection order may activate the Federal Full Faith and Credit mandate, the Tribal protection order must fall within the very broad federal definition of a protection order as set forth the below.
18 U.S.C. 2266(5) states:
- 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.
4. Do all Protection Orders Qualify for Federal Full Faith and Credit?
Federal law sets forth the parameters that all protection orders must meet to activate the Federal Full Faith and Credit mandate. The protection order should contain substantially the same language set forth below.
18 U.S.C. 2265(b) states:
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.
Currently, where Tribal judges rely heavily on forms, it is important to review your Tribal protection order forms to ensure that the 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?)
5. Are Mutual Protection Orders entitled to Federal Full Faith and Credit?
Mutual Protection Orders (or reciprocal protection orders) occur when the court issues a protection order to protect both the petitioner and the defendant in a case. Typically, both parties have asserted the need for protection from each other. Federal law requires additional efforts before the Full Faith and Credit mandate is activated in mutual protection order cases.
18 U.S.C. 2265(c) requires:
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. The 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 mandate for mutual protection orders. If you are involved in a mutual protection order case, be aware that both requirements must be met in order for the defendant’s protection order to be entitled to Full Faith and Credit.
6. What are notification and registration requirements in Federal law?
18 U.S.C. 2265(d) Notification and Registration
- 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.
- No Prior Registration or Filing as Prerequisite for Enforcement – 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, tribal, or territorial jurisdiction.
- Limits on Internet Publication of Registration Information – A State, Indian tribe, or territory shall not make available publicly on the Internet any information regarding the registration, filing of a petition for, or issuance 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 of 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. The prohibition under this paragraph applies to all protection orders for the protection of a person residing within a State, territorial, or Tribal jurisdiction, whether or not the protection order was issued by that State, territory, or Tribe.