This website provides guidance on tribally issued protection orders and enforcement of 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 tribal protection orders and enforcement of protection orders.
- Why are protection orders important?
Protection orders can be an important legal tool for victims of domestic violence. Protection orders may provide relief for the victim such as temporary custody, financial support, housing, child support, batterer’s intervention. Protection orders can also trigger alcohol or substance abuse counseling for the batterer. Protection orders may be known by a variety of names: injunctions, restraining orders, civil restraining order, or victim protection order just to name a few. A Protection order is a legal order issued by a court to protect a certain person from abuse. Protection orders can be issued in civil and/or criminal actions. Enforcement of violations of a protection order may also be civil and/or criminal in nature.
There are generally two types of protection orders available to victims of abuse.
- Ex parte orders: These are available in most jurisdictions in emergency situations. What constitutes an emergency situation is often defined by statute. Ex parte orders are issued without notice to the Defendant and before a full hearing on the matter. The alleged victim usually needs to demonstrate than an immediate danger or emergency exists. If an Ex Parte order is granted, it usually “expires” within a short period of time that should allow enough time for the alleged victim to petition for a permanent protection order. Generally, the court can extend the ex parte protection order beyond the expiration date depending on applicable tribal law. For example, tribal law may allow the tribal court to extend or continue the ex parte order if the defendant has not been served with a copy of the petition or application requesting an ex parte protection order.
- Permanent protection orders: This is the term used to denote protection orders that have been issued after providing the alleged perpetrator with notice that a protection order has been requested and after providing a meaningful opportunity to be heard on the matter. Despite the terminology, permanent protection orders may not be totally permanent and the length of time the permanent protection order will be in effect may vary and will depend on the terms set forth in the permanent protection order.
- Why is the language in the protection order important?
Not only will the language in the protection order set forth the length of time the order is in effect and the parameters of acceptable behaviors of the perpetrator and court commands to the perpetrator, the language in the protection order may engage section VAWA 2013 requiring that the protection order be given full faith and credit in all jurisdictions as the victim travels between jurisdictions. See Federal Full Faith and Credit.
The language of the protection order is also crucial for enforcement purposes. Clear and precise language is necessary since a violation of the protection order issued in favor of an Indian victim may be the basis for the criminal prosecution of Indian batterer or non-Indian batterer pursuant to section 904 of VAWA 2013. See Special Domestic Violence Criminal Jurisdiction. Additionally, the language in the Protection Order may trigger the federal firearms statutory prohibition against possessing ammunition or firearms during the period of a valid protection order. See Federal Firearms Prohibitions.
The tribal protection order may also direct law enforcement to enter the tribal protection order in a federal database, National Crime Information Center, or another database that feeds into the federal database for tribal protection order enforcement purposes. The federal database is a criminal records database allowing criminal justice agencies to enter or search for information about stolen property, missing or wanted persons, and domestic violence protection orders; to get criminal histories; and to access the National Sex Offender Registry. It is important that the tribal protection order list some of the respondent identifiers to be entered into the federal database such as the respondent/defendant sex, race, hair, height, weight, eyes and other distinguishing characteristics. In the past some tribes have experienced barriers in accessing the federal database to enter tribal protection orders. The U.S. Department of Justice (DOJ) launched the Tribal Access Program to assist tribes in acceding the national crime information system.
The U.S. Department of Justice (DOJ) launched the Tribal Access Program for National Crime Information (TAP) in August 2015 and has expanded yearly to provide Tribes access to the National Crime Information Center for federally authorized criminal and non-criminal purposes. TAP allows selected federally-recognized Tribes to more effectively serve and protect their nation’s citizens by ensuring the exchange of critical data across the Criminal Justice Information Services and national crime information systems.
There are currently over 90 Tribes with over 330 tribal government agencies participating in TAP. [See Tribal Access Program (TAP).
The protection order may also instruct law enforcement or other personnel to assist with certain provisions in the order.
- Are tribal code examples of drafting tribal protection orders available?
Yes. The following examples include tribal protection orders forms including ex parte and permanent protection order forms used by Native nations. These forms demonstrate the language necessary to trigger the Full Faith and Credit provisions of VAWA 2013 and may also include information relative to the tribal protection order information being entered into the National Crime Information Center.
Tulalip Tribes
Tulalip’s website offers forms for tribal temporary emergency protection orders as well as petition for a permanent protection order. Tulalip Domestic Violence Forms. Tulalip’s form sets forth critical information including: address of the tribal court, the time period the order is in effect, safety concerns and respondent identifiers for the federal database. The order clearly triggers the Federal Full Faith and Credit mandate in the findings indicating:
The court has jurisdiction over the parties, the minors, and the subject matter. The respondent will be served notice of his or her opportunity to be heard at the scheduled hearing. For good cause shown, the court finds that an emergency exists and that a Temporary Protection Order should be issued without notice to the respondent to avoid irreparable harm.
In the remedies section of the order, the court may prohibit a number of the respondent’s actions to include: communication or contact with the protected party/parties and remedies that address protection. Note that the temporary order provides the tribal judge with discretion to tailor specific remedies to meet the needs of the victim. The order provides directions relative to service of the tribal protection order and includes provisions that direct law enforcement to perform certain acts in compliance with the tribal protection order.
Also, Tulalip’s version of this form explicitly warns the defendant of the specific civil and criminal consequences of violating the order, including the important fact that a victim cannot give the defendant legal permission to violate the order. The language in the order states that “Only the court can change the order upon written application”. See Tulalip Domestic Violence Forms.
While the form for a permanent tribal protection order is not available online, a review of the petition indicates the Tulalip Tribal Court is triggering the Full Faith and Credit mandate the Federal Full Faith and Credit at the temporary hearing and engaging in many other critical aspects of drafting tribal protection orders to protect victims.
Kalispel Tribe of Indians
The Kalispel tribal protection order form contains important information including: the address of the tribal court including a telephone number, timeframe order is in effect. The form lists safety concerns and respondent identifiers for the state database entry. The form clearly triggers the Federal Full Faith and Credit mandate in the findings indicating:
The court has jurisdiction over the parties, the minors, and the subject matter. The respondent will be served notice of his or her opportunity to be heard at the scheduled hearing. For good cause shown, the court finds that an emergency exists and that a Temporary Protection Order should be issued without notice to the respondent to avoid irreparable harm.
The tribal protection order form includes information concerning the relationship between the parties that may be important in triggering the federal firearms prohibition. See Federal Firearms Prohibition. The remedies section of the form provides for protection of minors, protection for pets and for weapons surrender. The warnings provisions for the respondent include notice that violation of the tribal protection order provisions may be a criminal offense in both the tribal and federal courts. Similar to Tulalip, the form explicitly warns the defendant of the specific civil and criminal consequences of violating the order, including the important fact that a victim cannot give the defendant legal permission to violate the order. The form also includes language that warns of the possible crime of custodial interference for violation the custody or visitation provisions set out in the order.
The form provides information on service, entering the tribal protection order in the state data system and provides law enforcement instructions to carry out provisions in the order.
Confederate Tribes of the Umatilla Indian ReservationWhile not currently posted online, the Umatilla have a very user friendly list of resources and documents relating to Protection Orders.
Forms You Need is a helpful flyer that sets out the process and forms that people, alleged victims and alleged perpetrators alike, will need during the protection order process in the Umatilla jurisdiction. Not every jurisdiction will have this type of explanation readily available. However, the Court, victims service providers, legal services and/or social workers in your jurisdiction will likely have a similar help guide if you have more questions after viewing this site. Even if you understand the process, it is important to note that deadlines and content required in these forms can vary drastically depending on the jurisdiction. So, it’s important to look for rules that are particular to your jurisdiction.
Temporary Domestic Abuse Order is an Ex Parte protection order that can be filed by a victim. If granted, this order lasts for up to 30 days. Umatilla also requires this particular order to be filed, regardless of the victims wishes, by a government official whenever a person is taken into custody for a domestic violence crime. Tulalip’s version is substantially similar. However, their Temporary Protection Order form explicitly requires the court to make a ruling regarding internet abuse, surveillance, social media, etc. Also, Tulalip’s version of this form explicitly warns the defendant of the specific civil and criminal consequences of violating the order, including the important fact that a victim cannot give the defendant legal permission to violate the order.
Petition for Domestic Abuse Order should be filed by a victim that is seeking a permanent protection order. Essentially, this form alerts the court that a victim is seeking a protection order for more than 30 days (or less depending on how long the Ex Parte, or temporary, protection order lasts in your jurisdiction). Once this form is received, the court will set a hearing and notify the alleged perpetrator.
Notice of Domestic Abuse Protection Order Hearing is a notice to the alleged perpetrator of the allegations against them and contains the hearing date and instruction on how to file a response. To protect the alleged victim, Umatilla requires the police to serve this notice. Some jurisdictions allow for a service by mail or 3rd party.
Police Proof of Service – In Person gets filed by the police, who are responsible for serving the alleged perpetrator with notice of the hearing. Tulalip, who also allows service via law enforcement, uses this Return of Service Protection Order form that notifies the Court (and victim) that notice was not given because the opposing party (alleged perpetrator) could not be found.
Answer to Domestic Abuse Protection Order will be filed by the alleged perpetrator, or their representative. It’s a response to the allegations in the original petition and an opportunity to get any of the alleged perpetrators complaints against the alleged victim to the court before the hearing. This also alerts the court as to which terms in the initial petition the alleged perpetrator is willing to comply with (for example, whether they agree to leave the home or reservation until the hearing) which can be useful evidence for gaining an Ex Parte protection order if the alleged victim was not able to prove an “emergency situation” before filing a petition for a permanent protection order.
Domestic Abuse Order After Hearing is issued by the Court at the conclusion of the hearing, before the parties leave the building. This form is the actual permanent protection order and lays out every enforceable protection for the victim, it also contains an expiration date. It sets out the terms of the protection order: who it protects, prohibited conduct for the defendant, terms for child custody, child visitation protocols, etc. See Order of Protection for Tulalip’s version.
LEDS Information For Protection Orders is particular to the Umatilla, it is the protocol that the Court (or Umatilla official) must follow once the protection order has been issued. The protocol results in the protection order being filed with Umatilla and state law enforcement so the victim will be protected by the order even off-reservation. This is an important feature of the Umatilla protection orders because it avoids the common problem of a victim being unable to stop a perpetrator because the non-tribal law enforcement isn’t aware of the order, are suspicious of its authenticity, or simply are under orders to only enforce state certified protection orders. Tulalip uses a similar Law Enforcement Information Sheet form that is for specifically for local law enforcement, so they have notice of the protection order and can better enforce it.