Tribal Protection Orders

Tribal Protection Orders and Full Faith and Credit: Federal Laws

VAWA 2013
The Violence Against Women Act (VAWA 2013) requires all tribes, territories, and states to recognize and enforce protection orders from any other jurisdiction. VAWA was updated in 2000, 2005, and 2013. This page provides current federal law pertaining to tribal protection orders and full faith and credit.

Tribal Court Authority
18 U.S.C. 2265(e) (updated 2013)

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.

Definition of "Protection order"
18 U.S.C. 2266(5)

  1. 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
  2. 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.

Full Faith and Credit Requirement
18 U.S.C. 2265(a)

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.

What Protection Orders Qualify for Full Faith and Credit?
18 U.S.C. 2265(b)

A protection order issued by a State or 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 Defendant’s due process rights.

In this day and age where judges rely heavily on forms, it is important to review your protection order forms to ensure that the VAWA 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:

  1. 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)
  2. 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?)

Mutual Orders Not Enforceable
18 U.S.C. 2265(c)

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:

  1. no cross or counter petition, complaint, or other written pleading was filed seeking such a protection order; or
  2. 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. he 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 mandates for mutual protection orders. If you are involved in a mutual protection order case, be aware that both of these requirements must be met in order for the Defendant’s protection order to be entitled to full faith and credit.

No Registration Requirement
18 U.S.C. 2265(d)(2)

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 or tribal jurisdiction.

Notice to Defendant
18 U.S.C. 2265(d)

  1. 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.
  2. Limits on Internet Publication or Registration Information --
    A State, Indian tribe, or territory shall not make available publicly on the Internet any information regarding the registration or filing 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 or 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.

Section 904 and 908 of the Violence Against Women Reauthorization Act of 2013
VAWA 2013 was signed into law by President Obama on March 7, 2013. Title IX of the VAWA 2013 is entitled “Safety for Indian Women” and Section 904 specifically addresses the tribal exercise of Special Domestic Violence Criminal Jurisdiction over non-Indians to address the jurisdictional gap created by Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). VAWA 2013 amended the Indian Civil Rights Act.

The purpose of Section 904 is to decrease the incidence of crimes of domestic violence in Indian Country, to strengthen tribal sovereignty and to ensure that perpetrators of domestic violence are held accountable in tribal courts for their crimes of domestic violence, violations of protection orders and dating violence that have occurred in Indian Country. Note that the terms domestic violence, protection order and dating violence are defined in VAWA 2013. Tribal codes may need to be amended to reflect the federal definitions and note that the actions must violate tribal criminal law.

Section 904 applies only to cases involving Indian victims and requires the tribe to meet certain benchmarks before exercising Special Domestic Violence Criminal Jurisdiction. Section 904 sets forth that the Defendant must have sufficient ties to the community, which could be either

  1. residence on the reservation,
  2. employment on the reservation, or
  3. a relationship with a tribal member or Indian resident.

Further benchmarks for the tribe to meet in order to exercise Special Domestic Violence Criminal Jurisdiction include:

  1. the Defendant must be provided with effective assistance of counsel equal to at least that guaranteed by the U.S. Constitution;
  2. tribal governments must provide, at their expense, indigent defendants  a defense attorney licensed to practice by any jurisdiction in the United States;
  3. defense attorney must be licensed by a jurisdiction that applies appropriate licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys;
  4. Judges presiding over criminal proceedings subject to enhanced sentencing/non-Indian defendants must have sufficient legal training to preside over criminal trials;
  5. Judges presiding over criminal proceedings subject to enhanced sentencing/non-Indian defendants have sufficient legal training to preside over criminal trials;
  6. the tribe’s criminal law, rules of evidence, and rules of criminal procedure are made available to the public prior to charging the defendant;
  7. Tribal court must maintain a record of the criminal proceeding, including an audio or other recording;
  8. Tribal court must provide the defendant the right to a trial by an impartial jury;
  9. Tribal court ensures that the jury pool reflects a fair cross section of the community;
  10. Tribal court ensures that juries are drawn from sources that do not systematically exclude any distinctive group in the community, including non-Indians;
  11. Tribal court ensures that anyone detained under the special domestic violence criminal jurisdiction is “timely notified” of his/her rights and responsibilities;
  12. Tribal court ensures that a defendant is notified of their right to file “a petition for a writ of habeas corpus in a court of the United States.”;
  13. Tribal court ensures that “all other rights whose protection is necessary under the Constitution of the United States in order for Congress to recognize and affirm the inherent power of the participating tribe to exercise special domestic violence criminal jurisdiction over the defendant” are provided; and
  14. Tribal court ensures that “all applicable rights under the special domestic violence criminal jurisdiction provisions” are provided.

While Section 904 loosens some of the restrictions placed on tribal court jurisdiction by federal case law, it is important to note that Section 904 does not cover Alaska except for the Metlakatla Indian Community. Section 904 does not go into effect for most tribes that can meet the benchmarks until March 7, 2015.

However, Section 908 of VAWA 2013 allowed tribes to opt in to a pilot program to exercise Special Domestic Violence Criminal Jurisdiction prior to March 7, 2015. Currently there are three tribes in the United States exercising Special Domestic Violence Criminal Jurisdiction: Tulalip Tribe, Confederated Band of Umatilla Indians, Pascua Yaqui Tribe.

With the enactment of Section 904 of VAWA 2013, the drafting of protection order that will form the basis of a criminal action for violations have become even more critical. Careful and specific drafting of protection order language that specifically sets out w the terms of the protection order so a violation can be adequately determined is crucial.

Tribal Law and Order Act (TLOA) and Protection Orders
The Tribal Law and Order Act may also be useful in domestic violence cases in tribal courts. The Tribal Law and Order Act is an example of another federal law that relaxed federal restrictions placed on tribal sovereignty.The Tribal Law and Order Act relaxed the tribal court’s sentencing authority set out in the Indian Civil Rights Act. Tribal Courts that can meet certain benchmarks set forth below now have option of the following sentencing authority: Up to 3 years of imprisonment for any one offense and a $15,000 fine or both, with no more than a total of 9 years imprisonment.

Limitations on Utilizing TLOA Enhanced Sentencing and/or VAWA
Criminal Jurisdiction Limitations TLOA

Limitations

TLOA

VAWA

Particular Offenses Only:
Defendant must either (1) previously have been convicted of same or comparable offense by any jurisdiction in U.S.; or (2) is being prosecuted for a “felony” (an offense that would be punishable by more than 1 year imprisonment if prosecuted by U.S. or any of the States).
X
Particular Offenses Only:
Defendant must be prosecuted for either (1) domestic violence, (2) dating violence, or (3) violation of a protection order.
X
Particular Defendants Only:
Defendant must have sufficient ties to the community, which could be either (1) residence on the reservation, (2) employment on the reservation, or (3) a relationship with a tribal member or Indian resident.
X

Federal Firearms Prohibition and Protection Orders
There are generally two federal statutes that relate to possession of a firearm and domestic violence protection orders: possession of a firearm and/or ammunition while subject to a qualifying protection order 18 USC 922(g)(8); and possession of a firearm and/or ammunition after conviction of a DV misdemeanor 18 USC 922 (g)(9). To be prosecuted under federal law or to be rendered a “prohibited possessor” under federal law the protection order must be drafted very carefully.

It is a federal crime to possess a firearm and/or ammunition while subject to a valid qualifying protection order. 18 USC 922(g)(8). The exception to this possession is found at 18 USC 925 which sets forth this restriction does not apply to firearms issued by government agencies to a law enforcement officer or military personnel so long as the individual is on duty.

It is a federal crime to possess a firearm and/or ammunition after a conviction of a qualifying state misdemeanor crime of domestic violence. 18 USC 922(g)(9).  Importantly, there is no official use exemption for law enforcement and military personnel as was set forth in 18 USC 922(g)(8) above.

To engage the federal firearms restrictions, the protection order must contain certain language:

  1. Issued after hearing which the defendant had notice and opportunity to be heard;
  2. Order must restrain the defendant from harassing, stalking, or threatening an intimate partner, or child of such person or engaging in other conduct that would place in intimate partner in reasonable fear of bodily injury to the partner or child; and the order must include a finding that the defendant represents a credible threat to the physical safety of an intimate partner or child; or the order must explicitly prohibit the use, attempted use or threatened use of physical force against the intimate partner or child that would reasonably expected to cause bodily injury.

Federal Case Law
Two United States Supreme Court cases from the 1980’s and 1990’s directly address tribal court civil jurisdiction over non-citizens/members and over non-Indian defendants. Montana v. United States, 450 U.S. 544 (1981), held that tribal courts have no civil regulatory authority over non-Indian defendants on fee land owned by non-Indians that is located within a reservation unless one of the following factors apply: 1) the parties had 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.

In Strate v. A-1 Contractors United States Supreme Court held that a tribe had no civil adjudicatory jurisdiction over non-members involved in a traffic accident that occurred on non-Indian fee land (a state right-of-way running through the reservation). The Court further held that, absent Congressional direction enlarging tribal court jurisdiction, the civil authority of Indian tribes and their courts over non-Indian fee lands generally does not extend to the activities of non-members of the tribe. Therefore, if neither of the two Montana factors listed above apply, tribal courts may not exercise civil jurisdiction over non-members on fee lands.

The most prudent approach is for tribal courts to make specific findings in every civil protection order case as to:

  1. whether the Due Process requirements of the Indian Civil Rights Act regarding notice and opportunity to be heard have been complied with;
  2. whether the defendant is a citizen/member of the tribe, a non-Indian, or a citizen/member of another tribe;
  3. whether the incident giving rise to the civil litigation occurred on tribal land, on fee land, or on non-tribal rights-of-way; and
  4. 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.

It can be helpful for tribal court orders to reference any relevant federal and tribal laws relied upon by the court. For example, a tribal court order may reference the court’s power to enforce domestic violence protection orders under 18 U.S.C. § 2265 (e) of VAWA 2013 in addition to referencing relevant tribal code provisions.

Referencing applicable federal laws may help bolster a tribal court’s determination of jurisdiction if the matter undergoes federal appellate review.

An example of a tribal code that includes language related to the Montana Test is taken from the Tulalip Tribal Code.

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This website is a project of the Tribal Law and Policy Institute. Other web resources developed by TLPI include: National Child Welfare Resource Center for Tribes | Tribal Court Clearinghouse | National Indian Nations Conference | Tribal Healing to Wellness Courts | Walking on Common Ground