NINILCHIK VILLAGE

 

ORDINANCE NO.  99-01

 

A NINILCHIK VILLAGE ORDINANCE TO PROTECT AGAINST DOMESTIC

VIOLENCE, IMPLEMENT FEDERAL LAW AND FOR RELATED PRUPOSES

 

            WHEREAS, protection of Tribal members and their families form domestic violence is vital to the health and welfare of tribal members and to the political integrity of the Tribe; and

 

            WHEREAS, the federal Violence Against Women Act (18 U.S. C. *2265) requires full faith and credit be given to valid state or tribal protective orders in tribal and state courts.

 

BE IT ENACTED BY THE NINILCHIK TRADITIONAL COUNCIL:

 

 

DOMESTIC VIOLENCE

 

Section 1.        Finding the purpose

 

Section 2.        Definition of Domestic Violence

 

Section 3.        Jurisdiction

 

Section 4.        Cooperative Enforcement of Protective Orders

 

Section 5.        Beginning a Case

 

Section 6.        Contents of the Petition to Use the Tribal Court

Section 7.        Emergency Hearing – Temporary Protective Order

Section 8.        Hearing

 

Section 9.        Final Protective Order

 

Section 10.      Dissolving or Modifying a Protective Order

 

Section 11.      Violation of Protective Order

 

Section 12.      Rights of Victims of Domestic Violence

 

Attachments:              Temporary and Final Protective Orders, Certification of

                                    Protective Orders

Section 1.        Findings and Purpose

Ninilchik Village is a federally recognized Native American Tribe and the Ninilchik Traditional Council is its governing body.  This ordinance is enacted to exercise the inherent jurisdiction and the authority of Ninilchik Village over the domestic relations of its members and those who are married to or who have other similar consensual, personal and other family relationships with its members.  The Ninilchik Traditional Council is enacting this ordinance to implement federal law and because it finds that control of domestic violence is vital to the Tribe’s political integrity and to the health and welfare of the tribe, its members, and their families.  Access to state courts is usually too costly, slow and unresponsive for Ninilchik tribal members and those with whom they maintain domestic relations.  Tribal court access for domestic violence emergencies will result in more immediate and appropriate decisions for tribal members and their domestic partners.  It will also promote the political integrity of the Tribe, because initial Tribal adjudication of domestic violence issues will limit the involvement of foreign judicial decisions in the internal business of the Tribe, its members and their families.

 

Section 2.        Definition of Domestic Violence

 

Domestic violence means assault, threats of violence, or physical, sexual, or mental abuse of a person when the victim is a spouse, a former spouse, an extended family member, a boyfriend or girlfriend, a child of any of these persons or a member of the social unit made up of those living together in the same dwelling as the victim or perpetrator.

Section 3.        Jurisdiction

 

The personal and subject matter jurisdiction of the Tribal Court of Ninilchik Village under this ordinance is based on the Tribe’s inherent authority over its members, Tribal internal affairs and those who enter into consensual domestic relationships with Tribal members.  The Court’s jurisdiction extends to all persons residing within the tribe’s geographic service area for the delivery of federal programs who are Tribal member of Ninilchik Village.  The Court’s jurisdiction also extends to any other person who resides within the Tribe’s geographic service area who consents to the jurisdiction of the Court.  Persons who on or after the date this ordinance is adopted enter into or remain in a marriage or other similar consensual, personal relationship with a tribal member shall be deemed to have consented to the Court’s jurisdiction under this ordinance as long as they reside within the Tribe’s geographic service area.  As used in this ordinance, the Tribe’s geographic service area does not necessarily describe “Indian country.”   Instead, the term “geographic service area” is used in this ordinance to further define those persons over whom the Tribal Court asserts personal and subject matter jurisdiction because of their domestic relations as or with tribal members and the Tribe’s inherent authority to control its internal relationships even outside “Indian Country.”

 

Section 4.        Cooperative Enforcement of Protective Orders

 

In accordance with the full faith and credit provision of the Violence Against Women Act, 18 U.S.C. Section 2265, the Ninilchik Tribal Court shall forward a copy of any active Protective Orders to any appropriate court or statewide protection order registry for enforcement of such orders.  Such orders shall be filed with a Certification of Protective Order form.  Any valid restraining order issued by the State of Alaska, another state, or another tribe shall be accorded full faith and credit Ninilchik Tribal Government.

 

Section 5.        Beginning a Case

 

A person who has been subjected to domestic violence as defined in this ordinance, or any person who has knowledge of domestic violence committed against a person is unable or unwilling to Petition the Court, may request a Domestic Violence Protective Order from the Tribal Court.  The person must first file a Petition to use the Tribal Court form. 

 

Section 6.        Contents of the Petition to Use the Tribal Court

 

In domestic violence cased, the Petition shall contain the following information:

 

1.                   The name, address and age of the person to be protected;

2.                   The names and addresses if known of the person’s custodians, if any;

 

3.                   The names and addresses of any other person or tribe with an interest in the domestic violence proceeding;

 

4.                   Whether the Petitioner is the victim or whether some other person is the victim, and if so, the Petitioner’s relationship to the person to be protected;

 

5.                   The facts that make it necessary for the person to be protected; and

 

6.                   The relief requested by the Petitioner.

 

Section 7.        Emergency Hearing –Temporary Protective Order

 

The Court may hold an emergency hearing, and if the Court finds that the victim has been subjected to domestic violence, it may grant a Temporary Protective Order under this Section without written or oral notice to the Respondent so long as it appears that there is a substantial likelihood of immediate danger from the Respondent to the health, safety, or welfare of the victim or a member of his or her household from the Respondent and an attempt has been made by the Petitioner to notify the Respondent of the hearing.  This Temporary Protective Order shall remain in effect until a regular hearing is held unless modified by the Court upon request of the Petitioner, Respondent or victim.

 

Section 8.        Hearing

 

A hearing shall be held within 20 days of the granting of a Temporary Protective Order.  Notice shall be provided of this hearing to the Respondent.  If the Court finds at the decision hearing that the Order should be extended because there is a likelihood of substantial or immediate danger from the respondent to the victim, then the Court may extend the Temporary Protective Order for up to an additional 90 days.

 

Section 9.        Final Protective Order

 

At either the emergency hearing or the decision hearing, the Court may decide to include and of the following provisions in the Final Protective Order:

 

1.       Banishment of the Respondent;

 

2.       That the Respondent be restrained from committing domestic violence

 against the victim;

 

3.       That the Respondent move out of the home of the victim;

 

4.       That the Respondent not communicate directly or indirectly with the victim (this may include no telephone call, letters, or in-person contact, depending upon the Court’s Order):

5.       An Award of temporary custody of the minor child(ren);

 

6.       That a Respondent pay support to a victim or for a minor child in the care of the victim of the Respondent has a legal obligation to support the child;

 

7.       That the Respondent pay medical or other expenses of the victim that resulted from domestic violence by the Respondent;

 

8.       That the Respondent, victim or children engage in person or family counseling; or substance-abuse counseling or treatment; or

 

9.       That the Respondent stay away from a motor vehicle or boat owned or in the possession of the victim.

 

10.   That the Respondent stay away from a victim who is boarding a boat, aircraft, or any other motor vehicle.

 

A Protective Order granted at a hearing shall be in effect for 90 days from the date of the hearing.  The Order may be extended upon request of the Petitioner or victim, and after another hearing is held indicating that it is necessary to extend the Order to protect the victim or a person residing with the victim.

 

Section 10.      Dissolving or Modifying a Protective Order

 

If the petitioner or victim later wishes to dismiss or change an existing Protective Order in any way, he or she may file a Petition to use the Tribal Court form specifically requesting the change.  The Tribal Court shall then hear and rule on the requested change in a timely manner upon notifying all parties.

 

Section 11.      Violation of a Protective Order

 

If the Respondent violates any part of the Protective Order, he or she may be charged with contempt of court and subject to penalties as the Court decides, including but not limited to the following:

1.                   A fine not to exceed $1,000. for each violation;

 

2.                   Community service as determined appropriate by the Court;

 

3.                    In cases of repeated contempt, after notice and opportunity for a hearing, the person may be deprived of some or all benefits of tribal membership for such time as determined appropriate by the Court, not exceeding five (5) years.

 

Section 12.      Rights of Victims of Domestic Violence

 

A victim of domestic violence is entitled to but not limited to the right to;

 

1.                   Be informed of all hearing dated;

 

2.                   Be present at all hearings of the Tribal Court on the matter;

 

3.                   Advise the Court on conditions required to ensure their safety;

 

4.                   Receive restitution for losses substained as the direct result of the domestic violence.

 

 

 

PASSED AND ADOPTED THIS 29^TH DAY OF APRIL, 1999.

______________________________________

Gary V. Oskolkoff, President

ATTESTED TO THIS 29^TH DAY OF APRIL, 1999.

 

_______________________________________

Tribal Secretary

 

 

 

 

NATIVE VILLAGE OF _________________________

TRIBAL COURT

 

________________________________,  )

                         Plaintiff                               )

                 v.                                               )                                        Case No.  _________

                                                                   )

                                                                   )

________________________________,  )

____________Defendant_____________ )

TEMPORARY PROTECTIVE ORDER

 

A hearing was held in this matter on the _______ day of ________________, 19, _____.

The Petitioner, __________________________received notice of the hearing and

Participated / did not participate.  The Respondent, _____________________________

            (circle one)                                                                   (name)

 

BEING FULLY INFORMED IN THE MATTER, THE TRIBAL COURT

FINDS: _________________________________________________________________

________________________________________________________________________________________________________________________________________________

 

THE TRIBAL COURT ORDERS:

________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

 

THIS ORDER EXPIRES AT 8:00 AM, __________________, _________, 19 _______.

 

DONE BY ACTION OF THE TRIBAL COURT THIS _________________DAYS OF

_____________________, 19 ____________.

 

STATEMENT OF SERVICE

 

I _______ mailed return receipt requested restricted delivery or _____ personally gave

 (Check one)    a copy of this petition to the other people involved on the _______ day of

___________________, 19 _________.

 

____________________________________

Tribal Court Judge                                            

NATIVE VILLAGE OF _________________________

TRIBAL COURT

 

________________________________,  )

                         Plaintiff            )

                 v.                                               )                                        Case No.  _________

                                                                   )

                                                                   )

________________________________,  )

____________Defendant_____________

 

FINAL PROTECTIVE ORDER

 

A hearing was held in this manner on the _____________day of ___________, 19 ____.

The Petitioner, ____________________________received notice of the hearing and

Participated / did not participate.  The Respondent, _____________________________

            (circle one)                                                                   (name)

 

BEING FULLY INFORMED IN THE MATTER, THE TRIBAL COURT

FINDS: _________________________________________________________________

________________________________________________________________________________________________________________________________________________

 

THE TRIBAL COURT ORDERS:

________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

 

THIS ORDER EXPIRES AT 8:00 AM, __________________, _________, 19 _______.

 

DONE BY ACTION OF THE TRIAL COURT THIS _______________DAY

OF _____________________, 19 _______.

 

STATEMENT OF SERVICES

I _______ mailed return receipt requested restricted delivery or _____ personally gave

 (Check one)    a copy of this petition to the other people involved on the _______ day of

___________________, 19 _________.

 

____________________________________

Tribal Court Judge                                            

 

NOTICE TO THE DEFENDANT

 

 

IF YOU VIOLATE THIS COURT ORDER, YOU WILL BE DUBJECT TO A BROAD RANGE OF SANCTIONS UNDER TRIBAL LAW, UP TO AN INCLUDING PERMANENT BANSHIMENT FROM THE COMMUNITY.

 

PURSUANT TO THE VIOLENCE AGAINST WOMEN ACT (“VAWA”) OF 1994, 18 U.S.C. *2265, THIS ORDER IS ENFORCEABLE IN THE COURTS OF ALL FIFTY (50) STATES, THE DISTRICT OF COLUMBIA, AND U.S. TERRITORY, POSSESSION OR COMMONWEALTH AND ANY TRIBAL COURT.

 

IF A FINAL PROTECTIVE ORDER SHOULD BE ENTERED AGAINST YOU AFTER THE HEARING, WHETHER OR NOT YOU ATTENDED, YOU MAY BE PROHIBITED FROM POSSESSING, TRANSPORTING, OR ACCEPTING A FIREARM UNDER THE 1994 AMENDMENT TO THE GUN CONTROL ACT, 18 U.S.C. *922 (g)(8).

 

VIOLATION OF THIS ORDER MAY SUBJECT YO TO THE FOLLOWING FEDERAL CHARGES AND PUNISHMENT.

 

IF YOU TRAVEL ACROSS STATE LINES OR INDIAN COUNTRY WITH THE INTENT TO INJURE THE PLANTIFF AND THEN INTENTIONALL COMMIT A CRIME OF VIOLENCE CAUSING BODILY INJURY TO THE PLANTIFF, YOU MAY BE CONVICTED OF COMMITTTING A FEDERAL OFFENSE UNDER “VAWA”, 18 U.S.C. *2261(a)(1).  YOU MAY ALSO BE CONVICTED OF COMMITTING A FEDERAL OFFENSE IF YOU CAUSE THE PLAINTIFF TO CROSS STATE LINES OR INDIAN COUNTRY FOR THIS PURPOSE, 18 U.S.C. *2262(a)(2).

1^ST Rdg.  =  2/12/99

2^nd Rdg.  =  3/11/99

Posted         3/18/99

NATIVE VILLAGE OF ___________________

TRIBAL COURT

_____________________________,      )

            Petitioner                              )

                                                        )

                        v.                             )                                Case No. ___________________

        )

_____________________________,      )

_______Respondent____________

 

CERTIFICATION OF PROTECTIVE ORDER

 

It is hereby certified that the attached is a true and correct copy of the order entered in the above-captioned action on _______________(date) and that the original of the attached order was duly executed by the judicial authority whose signature appears thereon.  The order expires on _____________________(date)

 

The order is a civil protection order, requiring restraint of conduct.

 

It is further certified that:

(a)    the issuing court determined that it had jurisdiction over the parties and the subject matter under the laws of ________________(tribe).

(b)    The defendant was given reasonable notice and opportunity to be heard sufficient to protect the defendant’s right to due process before this order was issued; or if the order was issued ex-parte, the court ordered that the defendant be given reasonable notice and opportunity to be heard within the time required by the law of this jurisdiction, and in any event within a defendant’s due process rights.

(c)    The order was otherwise issued in accord with the requirements of the Full Faith and Credit Provisions of the Violence Against Women Act :   Title IV, Subtitle B, Chapter 2 of the Violence Crime Control and Law Enforcement Act of 1994.  18 U.S.C. *2265

(d)    The order was issued in accord with the requirements of the Uniform Child Custody Jurisdiction Act of this state / territory and consistent with the stictures of the federal Parental Kidnapping Prevention Act.  Parental Kidnapping Prevention Act Pub. L. No. 96-611, 94 Stat. 3566 (1980).

 

The attached order shall be presumed t be valid and enforceable in this and other jurisdictions.

 

Signature of Clerk of Court or other authorized official:

_________________________________________

 

Tribal Court: ______________________________

Address:        ______________________________

                    ____________________________

Phone:  _______________   Fax: ________________

Date:    _______________