TRIBAL PROTECTION ORDERS
Tribal protection orders are important in providing protection to victims of crime on reservations. If drafted properly the tribal protection order can be accorded full faith and credit by the court of another State, Indian tribe, or territory. Historically, our tribal communities were able to provide safety and accountability using our traditional ways of knowing using natural law and kinship ties. Today our tribal courts provide safety for victims and accountability of offenders with tribal codes, judges, prosecutors, and attorneys.
www.TribalProtectionOrders.org is a website which provides guidance for Native nations that are interested in developing, drafting, and enforcing their own protection orders. It includes helpful information on the protection order process and how it interacts with state and the federal governments. This website includes the following sections:
Drafting Protection Orders
2. Enforcing Protection Orders
The following tribal protection order questions and answers are taken from the home page of www.TribalProtectionOrders.org. Please 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.
1. What is a protection order?
Protection orders may be known by a variety of names to include injunctions, restraining orders, civil restraining order or victim protection order just to name a few. A protection order is a legal document that is available to victims of domestic violence in most jurisdictions. A protection order is a legal order issued by a court to protect a certain person from abuse. Statutes usually require a certain relationship between the petitioner and defendant that will vary from jurisdiction to jurisdiction. Protection orders 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 of violations of a protection order may also be civil and/or criminal in nature. There are generally two types of Civil protection orders available to victims of abuse. Ex parte orders are available in most jurisdictions in emergency situations. Ex parte 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 and an opportunity to be heard.
2. Why are tribal protection orders needed?
Domestic and sexual violence against American Indian and Alaska Native Women has reached epidemic proportions [Section 202 (a)(5)(A) of Tribal Law and Order Act]
34% of American Indian and Alaska Native Women will be raped in their lifetime [Section 202 (a)(5)(B) of Tribal Law and Order Act]
39% of Native American women will be victims of domestic violence [Section 202 (a)(5)(C) of Tribal Law and Order Act]
Non-Indians commit 88% of all violent crime against Native Women [Patricia Tjaden & Nancy Thoenne, U.S. Dep’t of Justice, Prevalence, Incidence, and Consequences of Violence Against Women: Findings From the National Violence Against Women Survey 22 (2000).]
3. What is the scope of tribal civil authority to issue and enforce protection orders?
Congress recently clarified in the Violence Against Women Act (VAWA) 2013 Reauthorization that tribal courts have full jurisdiction over all parties in protection order cases if the protection order arose in Indian Country or if the order was issued within the authority of the Indian tribe. 18 U.S.C. 2265(e) (updated 2013) provides that:
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.
The statute specifically mentions two illustrations of civil enforcement remedies available to enforce violations of 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 such as 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 enforce violations of protection orders. For more information, see Special Domestic Violence Criminal Jurisdiction.
4. Do the Tribal VAWA 2013 provisions apply to Tribes in the State of Alaska?
Yes – all of the Tribal VAWA 2013 provisions now fully apply to Tribes in the State of Alaska. In December 2014, Public Law 113-4 repealed the Violence Against Women Act (VAWA) 2013 Reauthorization Section 910 – Special Rule for the State of Alaska which had limited the applicability of Section 904 (Tribal Jurisdiction Over Crimes of Domestic Violence) and Section 905 (Tribal protection Orders) to Tribes in the State of Alaska.
5. What is the scope of tribal criminal authority to prosecute non-Indians for acts of domestic violence and protection order violations?
In addition to clarifying tribal civil jurisdiction to issue protection orders in cases involving non-members, VAWA 2013 also recognizes tribal inherent criminal jurisdiction over non-Indians who commit certain acts of domestic violence and protection order violations for those tribes meeting the requirements of VAWA 2013.
6. Is the language in a protection order important?
The language in the protection order is very important. Assuming the protection order meets certain requirements set out in the Violence Against Women Act 2013 (VAWA 2013), specific language present in the protection order may mandate whether other jurisdictions are required by federal law (VAWA 2013) to give full faith and credit to the protection order. Further, the language regarding any violation of the protection order may be the basis for a criminal prosecution of Indians and/or non-Indians (VAWA 2013). Additionally, the language in the protection order may trigger the federal firearms statutory prohibition [provide link to new firearms page] against possessing ammunition or firearms during the period of a valid protection order.
7. Are States required to recognize and enforce tribal protection orders?
Yes. The Violence Against Women Act (VAWA 2013) requires all tribes, territories, and states to recognize and enforce protection orders from any other jurisdiction. 18 U.S.C. 2265(a) provides as follows:
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.
(b) Protection Order.— A protection order issued by a State, 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 respondent’s due process rights.