Protective Orders In Indian Country

Protective
Orders
In Indian Country

I. What Is A Protective Order (P.O.)?
A document issued by a court to help protect you and your children from harassment or abuse.
It can set limits on the abusers behavior such as:
* Order the abuser to stop abusing you and your children;
* Tell the abuser to leave and stay away from your home, work place, and family;
* Direct the abuser to have no contact with you, including no phone calls, letters, or messages through other people;
* Order the abuser to stay away from the children, their babysitter, day care, or school.
* A protective order is not a punishment for the abuser. It is intended to prevent future violence or harassment. However, if the abuser violates the order, the abuser can be arrested and punished.

II. Where Can I Get A Protective Order?
You can get a protective Order in tribal court if the following apply to you:
* You live in Indian country; and
* If the Tribe that has governmental authority over land where you live has a tribal court; and
* the abuser is also Indian.

(If the abuser is non-Indian, check with the court clerk of the tribal court to make sure that non-Indians are subject to the court's authority. Most often non-Indians are subject to the Tribal court for protective orders.)

You can get a protective order (called a restraining order) from a Court of Indian Offenses if the following apply to you:
*You live in Indian Country; and
* The tribe with authority over the land is served by a Court of Indian Offenses; and
* The abuser is Indian. If the abuser is non-Indian, you must show that the abuser submits to the Court of Indian Offenses authority.

If you do not live in Indian Country you must go to the state courts to get a protective order. The rest of this brochure covers protective orders in tribal court and Courts of Indian Offenses, not state courts. For protection outside of Indian Country, you may ALSO need a state court protective order.

III. Who Can Get A Protective Order?
Anyone who has been physically, sexually, or emotionally abused by anyone including a spouse, former spouse, or partner.

IV. How Can Protective Orders Help?
* Police are likely to take your calls more seriously if you have a P.O.
* The abuser can be arrested and put in jail if he violates a P.O.
* If you have left your home, a P.O. can make it easier for you to get the police to go with you to get your personal belongings.
* Can protect you at your job if you're being stalked or harassed.

V. What Do I Need To Do To Get A Protective Order?
* Contact the court and find out what procedures they follow.
* Fill out a petition for a P.O.
* After completing the petition, file it with the court along with a filing fee.

VI. What Do I Need To Say In The Petition For A Protective Order?
List the reasons you need a P.O.
* Include a history of incidents between you and the abuser.
* Describe injuries you have received.
* Describe the most recent incident between you and and the abuser.
* Include why you think the violence is likely to happen again or that harassment will continue.
* Be specific.

A physical description of the abuser.
* Include any distinguishing marks such as tattoos.
* If possible, include a photograph of the abuser.

The exact physical location of the abuser so that the police can serve the order.
* Include the times the abuser will be at that address. If you and the abuser live together and you wish for the abuser to be served at your residence, include a time that the abuser can be served when you will not be at the residence.
* The location can be the abuser's work, home, or other place where you know the abuser will be.

Whether the abuser has been previously charged with acts of domestic violence.

Whether the abuser may be armed with a gun or knife, or any other weapon.

VII. Must I Include My Address In My Petition?
Your work, home, and other addresses may be kept confidential if the abuser does not already know them.
* However, you must provide a mailing address so the court can notify you of future hearings.

VIII. What If I Can't Afford The Filing Fee?
Check with the court clerk. The filing fee may be waived.

IX. What Happens When I Go To Court?
* A judge will review your petition and hear your testimony and any other evidence.
* The judge will decide immediately whether your Order will be issued.
* Tribal Courts and Courts of Indian Offenses are not in session every day of the week. The judge will only be able to review your petition on the days that court is in session. However, you can file a petition any day.

X. What Can The Judge Put In A Protective Order?
* If the abuser has a weapon, you can request that the P.O. require the abuser to surrender the weapon.
* If you share a home with the abuser, the P.O. can require the abuser to leave the home.

XI. Can Custody Of Children Be Included?
* Courts of Indian Offenses:
While the order can restrain the abuser from children in your custody, custody itself can not be decided in a P.O.
* Tribal Courts:
You may be able to have custody provisions in the P.O. Check with the tribal court with authority over your land.

XII. What Happens After I Receive The Protective Order?
* If the order is issued without the abuser's knowledge you will have to appear in court within 10 days after the initial order is issued. That appearance is called a hearing to show cause. Whether you received the P.O. from a tribal court or a court of Indian offenses, you will have to appear for this hearing.
* At the hearing to show cause, the abuser will have an opportunity to contest the order.
* At the hearing to show cause, you will need to appear and show why you needed the Protective Order.
* At that time, you will be able to have the P.O. extended for the length of time the judge feels is necessary.
* If you do not appear at the hearing to show cause the P.O. will be dropped.

XIII. What Should I Do If The Abuser Attempts To Contact Me After I Have Received A Protective Order?
* You should call the tribal or BIA police or the FBI.
* If you cannot reach the tribal or BIA police, contact local police. They can contact tribal or BIA police by radio.

XIV. Federal Domestic Violence Laws
All federal domestic violence crimes are felonies subject to prosecution in Federal court.
* It is a federal crime under the Violence Against Women Act ("VAWA") to cross state lines or enter or leave Indian country and violate a qualified Protection Order. 18 U.S.C. Section 2262
*It is a federal crime under the Gun Control Act to possess a firearm and/or ammunition while subject to a qualifying Protection Order. 18 U.S.C. Section 922(g)(8)
Generally, a Protection Order will qualify under federal law if reasonable notice and an opportunity to be heard was given to the person against whom the Court's Order was entered and if the Order forbids future threats of violence. The United States Attorney's Office can evaluate your Order to see if it qualifies.

For more information on Federal Domestic Violence laws & Indian Country contact the U.S. Attorney at:
Okla. Victim/Witness Coordinators: Western District: 1/405-553-8898 Northern District: 1/918-581-7854 Eastern District: 1/918-684-5100

XV. Disclaimer

Although care has been taken to ensure the accuracy of the information in this brochure, Oklahoma Indian Legal Services does not assume liability in connection with any use of the information contained within it.

OKLAHOMA INDIAN LEGAL SERVICES, INC.

4200 Perimeter Drive, Suite 222

Oklahoma City, Oklahoma 73112

1-800-658-1497 or 405/943-OILS