Protection orders are used by both states and tribes as an important tool in combating domestic violence. Domestic violence is found in all communities and cuts across lines of economic status, age, race, religion, nationality or educational background. Unfortunately, domestic violence is twice as likely to happen to Native American women as to their non-Native counterparts. Protection orders are injunctive remedies which can direct a respondent to commit no more acts of domestic violence, to cease threatening or harassing the petitioner, and/or to stay away from petitioner at work or at home. Protection orders can also alter child custody or visitation arrangements.
Protection orders can be ex parte (entered without notice to or participation by the respondent), temporary or long-term. Most states and many tribes allow individuals to directly petition the court for a protection order and provide fill-in-the-blank forms for that purpose. Orders may also be issued as part of a divorce or child custody action, any other civil proceeding or even as part of a criminal case. In the latter situation the court may include the keep-away provisions as part of pre-trial release or bond conditions, as part of an anti-stalking case, in a probation order or even as part of a defendant’s parole con-ditions. Temporary or ex parte orders are typically followed within a specified period of time by a hearing on a long-term order, at which both parties appear and offer evidence.
While protection orders have proven quite effective and useful, they are only as good as the enforcement mechanisms in place. Individuals who are protected by such an order need to be advised of the options open to them if the perpetrator violates the order and the perpetrator needs to be warned (typically on the face of the order itself) of the con-sequences for his violation. Such consequences can range from civil contempt (with sanctions such as fines, restitution or community service) to criminal contempt to actual criminal charges (most often a misdemeanor but in some instances a felony charge). Tribes have authority to file such criminal charges only against Indians, and the Indian Civil Rights Act limits the maximum possible penalty for a criminal conviction to one year in jail and/or a $5000 fine. The federal prosecutor is responsible for charging non-Indians with crimes committed in Indian country and charging any defendant with specific offenses named in the Violence Against Women Act.
Traditionally, protection orders were only valid within the jurisdiction which issued them. This created significant problems for women with protection orders who needed to relocate because of work, fear of continued violence or for family reasons. In 1994 the U.S. Congress moved to remedy this situation by enacting the full faith and credit provisions of the Violence Against Women Act (VAWA). These provisions require all states, tribes and territories to enforce each others’ protection orders just as if they were issued by their own courts. Because protection orders are enforceable in any jurisdiction many state and tribal courts have adopted policies of registering those orders when they are issued (with NCIC or state or tribal online registries), keeping copies of the orders at the police dispatcher’s office, or providing multiple certified copies to the petitioner once the order is signed. These things make it easier for law enforcement officers to determine the validity of an order when they are called upon to enforce it.
VAWA also requires that in order to be enforced in all jurisdictions protection orders must have been issued by a court with jurisdiction over the parties and the subject matter of the proceeding and that the parties must have been afforded due process. These requirements have resulted in the face of many courts’ protection orders bearing specific language detailing the bases for jurisdiction and the process that was afforded.