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 does the term jurisdiction mean and why is it important?
Jurisdiction refers to the power or authority of a court over a particular subject matter, territory or person. Jurisdiction is important because orders issued without jurisdiction are void. Recall that subject matter jurisdiction is a requirement to trigger the federal full faith and credit provision requiring all jurisdictions to enforce VAWA compliant protection orders. See Federal Full Faith and Credit. Jurisdiction can be a confusing aspect of tribal law.
- What does the term subject matter jurisdiction mean when issuing a tribal protection order?
Subject matter jurisdiction is the authority of the court to hear a particular type of case. From a tribal perspective, tribal civil jurisdiction to issue and enforce protection orders is based upon inherent tribal sovereignty. However, federal caselaw and federal laws have placed some restrictions upon a tribe’s civil authority. Prior to 18 U.S.C. 2265 (e), set out below, the authority to issue and enforce civil protection orders involving non-members in Indian country required an analysis set forth in Montana v. United States, 450 U.S. 544 (1981). Montana held that tribes have limited regulatory authority over matters involving non-members on non-Indian lands in Indian country. The Montana test requires the tribal court to find either: 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 in Indian country. Ultimately, Strate v. A-1 Contractors, 520 U.S. 438 (1997) extended the Montana test to determine tribal civil jurisdiction over matters involving non-members on non-Indian lands within a tribe’s Indian country.
In 2013, Congress clarified a tribe’s civil authority (subject matter jurisdiction) in 18 U.S.C. 2265(e):
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.
Focusing on the phrase “arising anywhere in the Indian country”, note that the term “Indian country” is defined at 18 U.S. C. 1151. The text suggests that the tribe’s civil authority to issue/enforce protection orders involving non-members, which arose on a reservation no longer requires an analysis regarding the status of the land such as whether the land status is trust, restricted allotted or fee lands within the reservation The text is less clear for matters arising on non-reservation tribal land bases. For non-reservation tribes the term “Indian Country” may still address only trust, restricted allotted lands, right-of-ways, and dependent Indian communities as delineated by federal law. The text of 18 U.S.C. 2265(e) appears to overrule Montana in cases involving a tribe’s civil authority to issue and enforce protection orders in matters involving non-members arising in Indian country or the text may indicate that one of the two Montana requirements have been met in civil protection order cases that fall within the parameters of the statute.
The statute also contains the phrase “or otherwise within the authority of the Indian tribe” suggesting that tribes have full civil authority to issue and enforcement protection orders involving any person (including non-members) in matters arising outside of Indian country in accordance with tribal law. This interpretation is an unsettled question of law but a very important question for tribes to consider in the realm of subject matter jurisdiction to issue/enforce civil protection orders. This phrase would appear to be very favorable to non-reservation tribes and Alaska Native Villages. The text of 18 U.S.C. 2265(e) may overrule Montana in cases involving a tribe’s civil authority to issue and enforce protection orders in matters involving non-members arising outside of Indian country in accordance with tribal law or the statute may indicate that one of the two Montana requirements have been met in civil protection order cases that fall within the parameters of the statute.
Another important issue appears in Spurr v. Pope, 936 F.3d 478 (6th Cir. 2019) at footnote 2 addressing the origin of the tribe’s civil authority to issue and enforce civil protection orders set out in 18 U.S.C. 2265(e). Dicta in the footnote suggests the statutory tribal civil authority is an “express delegation of authority to the tribes”. Whether 18 USC 2265 (e) is a federal delegation of civil authority to the tribes or a reaffirmation of tribal inherent authority is an important distinction because a federal delegation of authority might also import federal case law and the U.S. Constitution into the tribal court’s analysis on relevant issues such as personal jurisdiction and due process. Note that this case may underscore the importance of drafting precise tribal codes and jurisdictional findings in protection orders to clarify 18 U.S.C. 2265 (e) affirms tribal inherent civil authority to issue and enforce tribal protection orders rather than a federal delegation of civil authority to the tribes.
Tribes may wish to review the issue involving a federal delegation or affirmation of inherent tribal authority and determine whether Montana may still apply to matters arising outside of Indian Country involving non-members as authorized by tribal law. For tribes that determine that Montana may still apply, an example of language addressing the Montana test is taken from the Tulalip Tribal Code. Again, this is an unsettled area of the law so tribes may elect to cover both strategies in favor of victim safety. The Tulalip Montana-relevant text is addressed in italics.
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].
- What does the term Jurisdiction Over the Parties mean?
Tribal law will determine the issue of jurisdiction over the parties. However, tribes can generally exercise personal jurisdiction over any party that consents to the jurisdiction of the tribal court, waives an objection to jurisdiction over the parties, is domiciled in Indian country, has committed a tort in the tribe’s jurisdiction or maintains sufficient “minimum contacts” with the Indian country sufficient to comply with the due process clause of the Indian Civil Rights. See Indian Civil Rights Act. The Indian Civil Rights act extends many civil rights protections to individuals under tribal court authority while providing tribes with the authority to interpret what the provisions mean under tribal law and provides a sole remedy for those seeking to prove a violation is through a writ of habeas corpus. See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). For reference, federal and state courts have determined issues relevant to jurisdiction over the parties. See Personal Jurisdiction. Note that jurisdiction over the parties is a requirement to trigger the federal full faith and credit of protection orders. See Federal Full Faith and Credit.
- What does due process mean?
Tribal law will determine the parameters of due process. Generally, the term due process includes providing the defendant with notice of the allegations lodged against them and a meaningful opportunity to be heard on the matter. The requirement of due process is applicable to tribes via the Indian Civil Rights Act. The Indian Civil Rights Act extends many civil rights protections to individuals drawn from the U.S. Constitution while recognizing and reaffirming tribal inherent authority to interpret what the provisions mean under tribal law. See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). For reference, federal and state courts have determined issues related to due process. See Procedural Due Process: Civil. Note that concepts utilized in the federal and state system may not be identical to those concepts in tribal systems. Recall that providing a defendant due process is required to trigger the federal full faith and credit of protection orders. See Federal Full Faith and Credit.
- What are some tips for drafting protection order jurisdiction and due process language?
Protection order language should indicate that court has subject matter jurisdiction, jurisdiction over the parties and the tribal court has provided the Defendant with notice and an opportunity to be heard in order to engage the full faith and credit provisions of 18 U.S.C. (a) and (b). It can be helpful for tribal court orders to make those findings in the protection order language and cite to relevant tribal law and then reference any relevant federal law relevant to the tribal court’s findings.
For example, a tribal court order may reference the tribal court’s laws regarding the authority to issue or enforce a protection order then cite to of VAWA 2013 to reinforce the tribe’s findings on subject matter jurisdiction, jurisdiction over the parties and duce process. Referencing applicable federal laws may help fortify a tribal court’s determination of jurisdiction for due process if the matter undergoes federal appellate review.
For example, to issue a tribal protection order the language may include:
- The tribal court has subject matter jurisdiction under Tribal code [cite specific applicable tribal code provisions] and 25 USC 2265(e) based upon the following facts: (list the facts/evidence supporting the tribal court’s finding of subject matter jurisdiction);
- This matter arose in Indian Country as defined in 18 U.S.C. §1151 (list facts that support the finding such as within the exterior boundaries of the ___ reservation set by the Treaty of ___or on trust or restricted lands of the _____ tribe; or this matter is within the authority of the ___ tribe pursuant to (cite to the tribal code authorizing the tribe to issue a civil protection order in the case).
- The tribal court also notes that the tribe’s inherent civil authority to issue and enforce protection orders in matters involving all persons is affirmed in 18 U.S.C. §2265(e).
- The court has jurisdiction over the parties according to _____ of the tribal code and based upon the following facts: (list the facts/evidence that support the tribal court’s findings of jurisdiction over the parties)
- The Defendant has been served in accordance with _____ of the tribal code (cite specific applicable 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.
If the tribe determines that Montana might still apply to tribal civil jurisdiction to issue and enforce protection order cases involving non-members the tribe should consider making specific findings in every civil protection order case as to:
- Whether the defendant is a citizen/member of the tribe, a non-Indian, or a citizen/member of another tribe;
- 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. (Be sure to state the facts that support the tribal court’s findings on this issue).
 Elliot v. Pierson, 26 U.S. 328, 340 (1828) (the U.S. Supreme Court states that if a court is without authority its judges and orders are a nullity).
 Definition of subject matter jurisdiction taken from Subject Matter Jurisdiction legal definition of Subject Matter Jurisdiction (thefreedictionary.com).
 It is also an open question of law whether 18 U.S.C. 2265(e) was a federal delegation of authority to the tribes or a reaffirmation of tribal inherent authority. See a troubling footnote in Spurr v. Pope, 936 F.3d 478, fn 2 (6th Cir. 2019) holding that the authority is an “express delegation of authority to the tribes”. The distinction is important as a federal delegation of authority might also import federal case law and the U.S. Constitution into the analysis.
 Footnote 2 in Spurr sets forth “This express delegation of authority to tribes obviates Spurr’s suggestion that a tribe also must meet of the two Montana exceptions. See 450 U.S. at 564, 101 S.Ct. 1245; City. of Oneida v. Oneida Indian Nation, 470 U.S. 226, 237, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985) (“[F]ederal common law is used … when Congress has not `spoken to a particular issue.'” (quotation omitted)); Thlopthlocco Tribal Town v. Stidham, 762 F.3d 1226, 1234 (10th Cir. 2014) (describing Montana as “federal common law”).”