Tribal Protection Orders

     

Federal Laws on Full Faith and Credit

The Violence Against Women Act, initially passed by Congress in 1994, contains several provisions pertaining to the issuance and enforcement of protection orders, especially as they pertain to cross-jurisdiction enforcement. VAWA was updated in 2000 and 2005.

WHAT IS A PROTECTION ORDER for purposes of the federal law?

18 U.S.C. 2265(5)

(A) 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

(B) 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.

WHAT IS THE 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 or Indian tribe (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 ARE THE REQUIREMENTS of Sec. 2265(b)?

18 U.S.C. 2265(b)

A protection order issued by a State or tribal court is consistent with this subsection if:

(1) such court has jurisdiction over the parties and matter under the law of such State or Indian tribe; 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 or tribal law, and in any event within a reasonable time after the order is issued, sufficient to protect the respondent’s due process rights.

WHAT ABOUT “MUTUAL ORDERS”?

18 U.S.C. 2265(c)

Cross or Counter Petition

A protection order issued by a State or tribal 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.

DOES THE PROTECTION ORDER NEED TO BE REGISTERED?

18 U.S.C. 2265(d)

(2) 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 or tribal jurisdiction.

CAN THE ENFORCING JURISDICTION SEND NOTICE TO THE RESPONDENT OR PUBLISH INFORMATION ON THE INTERNET?

18 U.S.C. 2265(d)

(1) Notification

A State or Indian tribe according full faith and credit to an order by a court of another State or Indian tribe 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 or tribal jurisdiction unless requested to do so by the party protected under such order.

(3) 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.

WHAT AUTHORITY DO TRIBES HAVE TO ENFORCE PROTECTION ORDERS?

18 U.S.C. 2265(e)

Tribal Court Jurisdiction

For purposes of this section, a tribal court shall have full civil jurisdiction to enforce protection orders, including authority to enforce any orders through civil contempt proceedings, exclusion of violators from Indian lands, and other appropriate mechanisms, in matters arising within the authority of the tribe.

 

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This web site is supported by grant number 2004-WT-AX-K043 awarded by the Office on Violence Against Women, U.S. Department of Justice. Points of view in this document are those of the authors and do not necessarily represent the official position or policies of the U.S. Department of Justice.