Sharing Our Stories of Survival: Native Women Surviving Violence (51 page)

Tribal courts are fully able to civilly enforce protection orders against all people, Native and non-Natives alike. The tribes may choose to impose one or more civil remedies, including, for example, fines and banishment or exclusion from tribal lands.

The question of whether tribal law enforcement authorities may arrest a non-Native offender depends on a variety of factors, including: (I) whether the tribal lands are surrounded by a PL 280 state or a non-PL 280 state; (2) whether there have been any
cross-deputization agreements
between tribal law enforcement authorities and state or federal counterparts; and (3) what the powers of tribal law enforcement officers under tribal code to arrest for particular offenses are (see chapter 14).

Conclusion: Put It In Writing!

The Violence Against Women Act has made it more evident to states and tribes that there is a need for a comprehensive, clearly written code for issuing and enforcing protection orders. Without clear guidance from the codes, victims can easily fall through the gaps of the system. Each tribal government, as a sovereign nation, can write, adopt, and enforce its own protection order system. Without a clear code, women who seek protection orders can be given contradictory information—and this information can be considered a matter of life or death for a victim of domestic violence.

Notes

We use the term “survivor” instead of “victim.” A survivor is considered to be more empowered and healthier, as a survivor has strength, experience, and wisdom, all lacking in a victim.

1
  William C. Canby Jr.,
American Indian Law in a Nutshell,
3rd ed. (St. Paul, MN: West Group, 1998), p. I.

2
  U.S. Constitution, art. VI, cl. 2.

3
  
Takon v. Mayes,
163 U.S. 376, 384 (1896);
Santa Clara Pueblo v. Martinez,
436 US. 49, 56 (1978).

4
  18 US.C. §2266(5).

5
  18 US.C. §2265(a).

6
  18 US.C. § 2265(b).

7
  18 U.S.C. § 2265(b).

8
  “Cross-relief,” in legal terms, means a court decision that recognizes the claims of both parties in a dispute.

9
  18 U.S.C. § 2265(c).

10
  Registration may also be called “filing,” “domestication,” “recognizing,” or another similar term. These all essentially mean the same thing and are all prohibited as prerequisites for enforcement of foreign protection orders.

11
  This system is not foolproof, however, as not all states are contributing, most tribes are not yet contributing, and even those states that are contributing are not contributing all of their protection orders.

12
  18 US.C. § 922(g)(8). A “qualifying” protection order is one that a judge issues after a hearing of which the respondent had actual notice and an opportunity to be heard. 18 US.C. § 922(g)(8)(A). The order must restrain him from harassing, stalking, or threatening an intimate partner or her child, or engaging in other conduct that would place her in reasonable fear of bodily injury to herself or the child. 18 U.S.C. § 922(g)(8)(B). The order must also contain either a finding that the respondent represents a credible threat to the physical safety of the survivor or the child, or the order must expressly prohibit the use, attempted use, or threatened use of physical force against her or the child that would reasonably be expected to cause bodily injury. 18 U.S.C. § 922(g)(8)(C).There is also a relationship requirement before a qualifying protection order will trigger this federal firearm prohibition. The person protected by the order must be the Respondent’s wife, ex-wife, girlfriend, mother of his child, or they must live together or have lived together in the past, or the protected party must be a child of either the Respondent or his intimate partner. 18 U.S.C. § 925(a)(32).

13
  §18.66.140(b) (2003).

14
  See, e.g., 42 U.S.C. §3796hh, 42 U.S.C. §3796gg-5. Federal law now requires those jurisdictions receiving Grants to Encourage Arrests (“GTEA” or “Arrest” grants), STOP grants, and others to certify that their ”their laws, policies, and practices do NOT require, in connection with the prosecution of any misdemeanor or felony domestic violence offense, or in connection with the filing, issuance, registration, or service of a protection order, or a petition for a protection order, to protect a victim of domestic violence, stalking, or sexual assault, that the victim bear the costs associated with the filing of criminal charges against the offender, or the costs associated with the filing, issuance, registration, or service of a warrant, protection order, petition for a protection order, or witness subpoena, whether issued inside or outside the State, tribal, or local jurisdiction.” The reason for this change in the federal law is that Congress recognized the “chilling effect” the practice of charging fees for such services has on survivors of domestic violence, stalking, and sexual assault. Congress does not want survivors to be discouraged, dissuaded, or unable to file such complaints or seek the protection they need from the courts and law enforcement agencies.

15
  18 U.S.C. § 2265(d)(2).

16
  18 U.S.C. § 2265(d)(3).

17
  18 U.S.C. § 2265(d).

18
  18 U.S.C. § 2265(e).

Questions

1. What is full faith and credit? Why is it important to domestic violence survivors?
   
2. What is the Supremacy Clause of the U.S. Constitution? Why is it necessary to have such a provision in the Constitution? If the Constitution had no Supremacy Clause, what are some potential problems that could develop?
   
3. What requirements must a protection order satisfy before full faith and credit under VAWA applies?
   
4. What are the benefits to a survivor who has her order entered into the National Crime Information Center Protection Order File (NCIC POF)?
   
5. Why was it important to survivors for VAWA to eliminate the requirement of filing a foreign protection order in all jurisdictions?
   

In Your Community

1. Does your tribal court require the registration of a foreign protection order before enforcement? What is their rationale for noncompliance with VAWA? How does this increase the risk to survivors? If your tribe no longer requires registration, discover the history of change.
   
2. Does your tribe have laws that authorize protection orders? Are there possible civil penalties in your tribal code, which could be enforced against non-Indian protection order violators?
   
3. Are there any problems with state enforcement of tribal protection orders in your community? If so, explain the problem and propose a possible solution.
   

Terms Used in Chapter 16

Codified:
Laws that have been collected and arranged systematically, usually by subject matter, have been codified.

Cross- or counter-petition:
A formal request to a court or other authority asking for some type of action against one who has filed a petition against you; as in a cross-petition for a protection order.

Cross-deputization agreement:
An agreement between governmental units with different jurisdictions (commonly between tribe, state, and/or federal governments) authorizing law enforcement officers from one of the parties to the agreement to have the same power and authority as law enforcement officers from the other party.

Due process:
Refers to certain safeguards that assure fundamental fairness.

Ex parte order:
Refers to an order where only one side has presented their case. Often used for emergency proceedings.

Foreign protection order:
Refers to a protection order from another jurisdiction (not a foreign country).

Injunction:
An order prohibiting someone from doing something.

Petition:
A formal request to a court or other authority asking for some kind of action; as in a petition for a protection order.

Petitioner:
One who presents a petition to a court or other authority.

Respondent:
One who responds to a petition.

Suggested Further Reading

Deer, Sarah, and Melissa Tatum. “Tribal Efforts to Comply with VAWA’s Full Faith and Credit Requirements: A Response to Sandra Schmieder.”
Tulsa Law Review
39 (2003): 403.

Tatum, Melissa. “A Jurisdictional Quandary: Challenges Facing Tribal Governments in Implementing the Full Faith and Credit Provisions of the Violence Against Women Acts.”
Kentucky Law Journal
90 (2002): 123.

————. “Law Enforcement Authority in Indian Country: Challenges Presented by the Full Faith and Credit Provisions of the Violence Against Women Acts.”
Tribal Law Journal
4 (2004), available at
http://tlj.unm.edu/articles/volume_4/tatum/index.php
.

Chapter 17

Divorce, Child Custody, and Support Issues in Tribal Courts

HALLIE BONGAR WHITE

T
ribal courts can provide an important forum for Native survivors of domestic violence seeking to regain autonomy and safety. Formal legal proceedings for divorce and child custody and/or support can often be heard in tribal courts where Native women may feel more comfortable initiating legal action. Tribal court proceedings take place within a familiar community sharing similar values and worldview. Transportation difficulties may be minimized for survivors, their families, victim advocates, and witnesses when proceedings are held within the community. Proceedings in tribal courts may sometimes be held in a woman’s native language.

Tribal courts may also be more user-friendly for victims representing themselves pro se (without an attorney). Native women may find that they maintain some advantages in gaining child custody under the laws of many tribes. It may also be easier to secure the testimony of tribal police officers in tribal courts and to bring forth other evidence of the abuse located on the reservation. Filing fees, fees for service of process, and other court costs may also be far lower than those of state courts.

Conversely, some Native women may feel more comfortable initiating divorce, custody, and/or support proceedings off-reservation. There is a shortage of free or low-cost legal services in many reservation communities. Facing an abuser in formal legal proceedings without legal counsel can be daunting. This is especially true when the abuser is represented by an attorney. Access to legal services off-reservation may be a decisive factor influencing a domestic violence survivor’s decision to file in state court. Native women in off-reservation shelters may also find it more convenient and may feel safer filing in state courts. Some Native women may feel more comfortable litigating sensitive issues involving physical and sexual violence in communities where they are unknown.

Most tribes have empowered their tribal courts with the authority to issue final divorce orders (sometimes called dissolution of marriage orders) that formally terminate a legal marriage and legal relationship between two parties. Divorce actions in tribal courts can also include formal determinations of child custody, visitation, division of property, assignment of debt, child support, and spousal maintenance (sometimes called “alimony”). Some tribal courts also issue protection orders within divorce proceedings.

When parties are not legally married but have a child or children in common, tribal courts may also have the authority to issue child custody and child support orders. These orders often include determinations of visitation rights and may also include protection orders.

The Importance of Obtaining a Formal Divorce, Custody, and/or Support Order

Survivors of abuse who choose to walk away from a marriage without legal dissolution may face tremendous obstacles in the future for themselves and for their children. Tribal courts with jurisdiction over the cause of action and over the parties can often issue final divorce, custody, and support orders that enable Native victims to break their legal ties with their abusers and regain autonomy over their lives.

In the absence of a formal divorce decree, an abuser-spouse retains tremendous control over the lives of his victim and their children. The abuser can continue to control the financial destiny of his victim and can continue to make important parenting decisions for their children. Without a divorce decree and court-ordered custody plan, the abuser can also continue to make important medical and educational decisions for their children. Under the laws of many jurisdictions, an abuser-spouse retains equal rights to custody and visitation absent a formal divorce and custody order. He may also be able to legally travel with the children anywhere within the country without the victim’s permission, switch the children’s schools, authorize surgery, and control their participation in religious ceremonies.