TRIBAL COUNCIL OF THE NORTHERN CHEYENNE
NORTHERN CHEYENNE RESERVATION LAME DEER, MONTANA
Section 1. PURPOSE
Section 2. DEFINITIONS
Section 3. CRIME OF DOMESTIC VIOLENCE
Section 4. MANDATORY ARREST
Section 5. SPECIAL COURT RULES
Section 6. ORDERS FOR PROTECTION
Section 7. SERVICE OF ORDER OF PROTECTION
Section 8. ASSISTANCE TO THE POLICE DEPARTMENT IN SERVICE OR
EXECUTION OF ORDER OF PROTECTION
Section 9. RIGHT TO APPLY FOR RELIEF
Section 10. COPY TO LAW ENFORCEMENT AGENCY
Section 11. VIOLATION OF COURT ORDERS - MANDATORY ARREST
Section 12. LIABILITY
Section 13. SEVERABILITY
AN ORDINANCE OF THE NORTHERN CHEYENNE TRIBAL COUNCIL ENACTING A STALKING ORDINANCE, AND ADDING TO TITLE VII OF THE OFFENSE CODE OF THE NORTHERN CHEYENNE RESERVATION.
WHEREAS: The Northern Cheyenne has determined that a Stalking Ordinance is necessary due to increased incidents involving the domestic abuse violations on the Northern Cheyenne Reservation, and
WHEREAS: the Domestic Abuse Ordinance lacks this clause and the stalking of the victim has occurred various times throughout the years, where the perpetrator has harassed and intimidated the victim by the use presence and by other means.
SO BE IT ORDAINED by the Northern Cheyenne Tribal Council that the following ordinance, the Stalking Ordinance, is hereby adopted by the Tribal Council. It shall be a part of Offense Against the Family, Chapter S, Title VII and shall be numbered 7-5-11. Stalking is a Class A offense. The ordinance is as follows:
Stalking - exemption - penalty
(1) A person commits the offense of stalking if the person purposely or knowingly causes another person substantial emotional distress or reasonable apprehension of bodily or death by repeatedly:
(a) following the stalked person; or
(b) harassing, threatening, or intimidating the stalked person, in person or by phone, by mail, or by other action, device, or method.
(2) A person convicted of a first offense for stalking shall be jailed for not less than 30 (thirty) days and fined not less than $500.00. A person convicted a second time for stalking shall be jailed not less than 90 (ninety) days and fined not less than $1000.00. A person convicted for the third or subsequent times shall be jailed for not less than 180 days and fined not less than $2000.00.
(3) Upon presentation of credible evidence of violation of this ordinance, an order may be granted, restraining a person from engaging in the activity described in subsection (1).
(4) For the purpose of determining the number of convictions under this Ordinance, "conviction" means: (a) a conviction, as defined in this ordinance (b) and, bail put forth can not be forfeited in lieu of court appearance. Appearance before a Judge is mandatory.
(5) Attempts by the accused person to contact or follow person after the accused person has been given actual notice that the stalked person does not want to be contacted or followed constitutes prima facie evidence that the accused person purposely and knowingly followed, harassed, threatened, or intimidated the stalked person.
PASSED, ADOPTED AND APPROVED by the Northern Cheyenne Tribal Council by ___ votes for passage and adoption and ___ votes against passage and adoption on this ___ day of ___ , 1998
DOMESTIC VIOLENCE ORDINANCE NORTHERN CHEYENNE INDIAN RESERVATION
TITLE VII, Section: 7-5-10 Domestic Abuse
A. The Northern Cheyenne Tribal Council recognizes that existing laws do not adequately protect victims of domestic violence.
B. The Tribal Council declares that the official response to cases of domestic violence in the Community shall be that violent behavior is not to be tolerated or excused.
For these reasons, the Tribal Council hereby enacts Title: VII, Section 7-5-10 Domestic Abuse of the Northern Cheyenne Tribal Code to promote safety, respect and honor of all elders adults and children in families throughout the community.
As used in this Chapter, or when used for purpose of application on this chapter, the terms set forth below shall have the following meanings:
A. COMMUNITY - The Northern Cheyenne Indian Reservation
B. COURT - Northern Cheyenne Tribal Court
C. DOMESTIC VIOLENCE - Endangerment, threatening or intimidating, assault, aggravated assault, custodial interference, unlawful imprisonment, kidnapping, criminal trespass, criminal mischief, disorderly conduct or crimes against children occurring between persons of the opposite sex who are family members or household members.
D. ELDERLY PERSON - A person fifty-five (55) or more years old.
E. FAMILY MEMBER OR HOUSEHOLD MEMBER - A spouse, a former spouse, a person related by blood, a person related by existing or prior marriage, a person who resides with the person, or a person with whom the person has a child in common regardless of whether the parents of the child have been married or have lived together at any time.
F. MANDATORY ARREST - A police officer shall immediately arrest, without having to obtain an arrest warrant and take into custody any person whom the officer has probable cause to believe has committed the crime of domestic abuse. The victim need not sign a complaint. The officer shall make the arrest even though an arrest may be against the expressed wishes of the victim.
G. ORDER FOR PROTECTION - A court order granted for the protection of victims of domestic violence.
H. PERPETRATOR - The person who has committed an act of domestic violence on his or her family member or household member.
I. PROBABLE CAUSE - Means that the police officer making the arrest has probable cause to believe that the person to be arrested has committed an offense as defined by this ordinance or that the victim is in immediate danger of domestic violence based on all the facts known to the officer, including statements made by parties involved in the incident, statements made by witnesses if any, an any other reliable information, provided, however, that an officer need not witness an act of domestic violence in order to make the arrest or sign a protective order.
J. RESERVATION - The Northern Cheyenne Indian Reservation as established and geographically defined under the laws of the United States, encompassing all territory within its exterior boundaries as now or hereafter prescribed or ascertained.
Section 3. CRIME OF DOMESTIC VIOLENCE
A. Any person who shall knowingly commit an act of domestic violence as defined by Section: 7-5-10 of this chapter shall be guilty of the offense of domestic violence and upon conviction thereof shall be sentenced to confinement. A conviction of domestic abuse of a first offense for domestic abuse shall be jailed for not less than 30 days and fined not less than $500.00. A person convicted a second time for domestic abuse shall be jailed not less than 90 days and fined not less than $1000.00.
B. In addition to or in lieu of the imposition Section 3-A, the court shall order the person convicted of the offense of domestic violence to participate in a domestic violence treatment program, as provided in Section 5 of this Chapter.
C. Prosecution for the offense of domestic violence shall not preclude prosecution for any other offense under the Northern Cheyenne Tribal Code arising under the same circumstances provided, however, that this section does not create a separate offense if the defendant is charged for the same offense under any other applicable provision of the Community code.
A. A police officer shall arrest an alleged perpetrator of domestic violence if an arrest warrant has been issued, or without a warrant if the officer has probable cause to believe that the person to be arrested has committed domestic violence, without regard to any other requirements imposed by Title VI Offense Code of the Northern Cheyenne Code. If the conditions for arrest established by this Section are present, the officer shall arrest the alleged perpetrator of domestic violence whether or not the alleged victim signs a complaint and whether or not the arrest if against the expressed wishes of the alleged victim.
B. Whenever a police officer investigates an allegation of domestic violence, whether or not an arrest is made, the officer shall make a written incident report of the alleged abuse and file the report with the BIA/LES.
C. In all domestic violence arrests, the assigned BIA/LES police officer and/or the Tribal Detective shall, after notifying the alleged perpetrator of his/her rights and the alleged perpetrator consents, interview or attempt to interview the alleged perpetrator within 24 hours of the arrest, excluding week-ends and holidays.
D. Immediately following a domestic violence arrest, the police officer shall advise all known victims of the availability of Domestic Violence programs and shall give the victims information describing their legal rights and available services. Upon request of the victim, the police officer or Victim/Witness Advocate shall provide transportation of the victim to a medical facility or place of shelter.
E. Within 24 hours of an arrest of an alleged perpetrator under this Section, excluding week-ends and holidays, the arresting police officer shall present a written report to the Office of the Prosecution, who shall forthwith file with the Court a criminal complaint of the alleged violence. If the alleged incident occurred on a week-end, the officer shall report the incident to the Prosecutor the following Monday.
F. Whether or not the alleged perpetrator has been arrested, the Prosecutor shall assist the alleged victim or other appropriate person in the prosecution and filing of a criminal complaint under this Section and/or a petition under this Section 6 of this Chapter.
G. The Bureau of Indian Affairs Law Enforcement Services shall develop and maintain a protocol for implementation of its obligations under this Chapter.
H. Any alleged perpetrator arrested under this section shall be held with in custody without bail for a period not less than 36 hours mandatory cooling off period.
No bail put forth cannot be forfeited in lieu of court appearance. Appearance at court before a Judge is mandatory.
Section 5. SPECIAL COURT RULES
In addition to the rules of court generally applicable to criminal proceedings, the court is authorized to take the following actions in a proceeding+ involving alleged domestic violence offenses.
A. At the arraignment hearing, if the alleged perpetrator is to be released from custody, the Court in its discretion and as a condition of release, may issue an order for protection temporarily, excluding the alleged perpetrator from the home of the alleged victim and restraining the alleged perpetrator from any contact with the alleged victim.
B. If it appears to the Court that alcohol and drugs played a part in the act of domestic violence, a chemical dependency evaluation with a treatment plan may be ordered, at the discretion of the Court, prior to sentencing.
C. Upon a guilty plea or conviction, the perpetrator shall be ordered to participate in an appropriate domestic violence program consisting of at least the following:
1. The perpetrator shall attend and cooperate in an intake session for evaluation.
2. The evaluation shall be completed by the Family Services Counselor not later than 10 calendar days after the entry of the order requiring evaluation, unless the Court extends that time period.
3. A copy of the evaluation and recommended treatment plan shall be provided to the Court.
4. In the discretion of the Court, the Court may order the perpetrator to participate in treatment sessions provided by the Family Service Counselor in lieu of confinement and/or fine, or the execution of any such penalty may be suspended pending completion of the treatment ordered by the Court.
5. The Family Service Counselor or other service provider shall submit progress reports to the Court every six weeks when treatment is ordered.
D. Willful failure or refusal to comply with a Court order requiring a perpetrator to attend and cooperate in evaluation and/or to undergo treatment as described in a treatment plan shall constitute contempt of court punishable as provided Title V, Rule 46, Criminal Contempt, of the Northern Cheyenne Code. If the Court has suspended execution of any penalty imposed under Section 3 of this Chapter on the condition that the perpetrator undergo court-ordered evaluation and/or treatment, the Court may also order execution of any such suspended sentence.
E. Any written statement made by the alleged victim under oath and signed by the victim which describes the alleged acts of domestic violence shall not be considered inadmissible hearsay evidence, but shall be admissible in any proceeding related to a prosecution under Section 3 of this Chapter.
Section 6. ORDERS FOR PROTECTION
A. Availability of Petition.
1. No order of protection may be granted, unless the party requests the order, files a petition for an order.
2. A petition to obtain an order of protection under this section maybe filed by:
a. any person claiming to be the victim of domestic violence;
b. any family member or household member of a person claimed to be the victim of domestic violence, on behalf of the alleged victim; or
c. the Office of the Prosecution.
3. A petition shall allege the existence of domestic violence, and shall be verified or supported by an affidavit made under oath stating the specific facts and circumstances justifying the requested order.
4. A petition may be filed regardless of the pendency of any other civil or criminal proceeding related to the allegation in the petition.
5. No filling fee shall be required for the fling of a petition under this Section. If an alleged perpetrator has been arrested for the offense of domestic violence, the arresting officer shall advise the alleged victim of the right to file a petition under this Section without cost.
6. The petitioner, or the victim on whose behalf a petition has been filed, is not required to file for annulment, separation, or divorce as a prerequisite to obtaining an order of protection; but the petition shall state whether any other action is pending between the petitioner or victim and the respondent.
7. Standard, simplified petition forms with instructions for completion shall be available to persons not represented by counsel. The Bureau of Indian Affairs Law Enforcement Services and Northern Cheyenne Tribal Court shall keep such forms and make them available upon request to victims of domestic violence.
B. Procedure for Issuance of an Order of Protection
Upon the filing of a petition for order of protection, the Court shall:
1. Immediately grant an order of protection if based on the specific facts stated in the affidavit or the verified petition, the Court has reasonable cause to believe that the petitioner or the person on whose behalf the petition has been filed is the victim of an act of domestic violence committed by the respondent, and issuance of the order is necessary to protect the victim from further abuse.
2. Cause an order of protection, together with notice of hearing, to be served immediately on the respondent. Service must be made by posted notice if personal service cannot be completed within twenty-four (24) hours.
3. Within ten (10) days after granting of the order of protection, hold a hearing to determine whether the order should be vacated, extended, or modified in any respect. If exclusive use of the home is granted, the respondent may request a hearing to be held within five (5) days from the date requested.
C. Content of an Order of Protection
An order of protection may include the following provisions:
1. Restraining the respondent from committing any acts of domestic violence.
2. One party may be granted the use and exclusive possession of the parties' residence on a showing that there is reasonable cause to believe that physical harm may otherwise result.
3. Restraining the respondent from any contact with the victim upon a showing there is reasonable cause to believe that physical harm may otherwise result.
4. Awarding temporary custody or establishing temporary visitation rights with regards to minor children of the respondent on a basis which gives primary consideration to the safety of the claimed victim or domestic violence and the minor children.
a. If the Court finds that the safety of the claimed victim or the minor children will be jeopardized by unsupervised or unrestricted visitation, the Court shall set forth conditions or restrict visitation as to the time, place, duration, or supervision, or deny visitation, entirely, as needed, to guard the safety of the claimed victim and the minor children.
b. Any temporary custody order shall provide for child support and temporary support for the person having custody of the children, any amounts deemed proper by the Court.
5. Ordering temporary guardianship with regard to an elderly or handicapped victim of domestic violence if necessary for the safety of the elderly or handicapped person.
6. Awarding temporary use and possession of property of the respondent.
7. Restraining one or both parties from transferring, encumbering, concealing, or disposing of property except as authorized by the Court and requiring that an accounting shall be made to the Court for all such transfers, encumbrances, dispositions and expenditures.
8. Ordering the respondent to timely pay any existing debts of the respondent, including rental payments, necessary to maintain the claimed victim in his/her residence.
9. Describing any prior orders of the Court relating to domestic matters which are superseded or altered by the order of protection.
10. Notifying the parties that the willful violation of any provision of the order constitutes contempt of court punishable by a fine or imprisonment or both.
11. Ordering in the Court's discretion, any other lawful relief as it deems necessary for the protection of any claimed or potential victim of domestic violence, including orders or directives to the Northern Cheyenne Reservation police department.
D. Duration and Modification of Order of Protection
1. The provisions of the order shall remain in effect for the period of time stated in the order, not to exceed one (1) year unless extended by the Court at the request of any party for a permanent protection order.
2. Either party may request a hearing to modify and order of protection.
Section 7. SERVICE OF ORDER OF PROTECTION
Orders of protection are to be served personally upon the respondent by a police officer. If the respondent cannot be located, the order will be mailed by certified mail to the respondent's last known address, and upon application with Court, the notice will be posted.
Section 8. ASSISTANCE TO THE POLICE DEPARTMENT IN SERVICE OR EXECUTION OF ORDER OF PROTECTION
When an order of protection is issued, upon request of the petitioner, the Court shall order the police to accompany and assist any claimed victim of domestic violence in taking possessions of the claimed victim's residence or otherwise to assist in execution of the order.
Section 9. RIGHT TO APPLY FOR RELIEF
A person's right to apply for relief under this Section 6 of this Chapter or to file a criminal complaint under Section 3 of this Chapter shall not be affected by his/her leaving the residence or household to avoid abuse.
Section 10. COPY TO LAW ENFORCEMENT AGENCY
Each order of protection granted pursuant to Section 6 of this Chapter and each order issued under Section 5 (a) of this Chapter shall be forwarded by a Clerk of Court immediately to the Northern Cheyenne Reservation police department.
Section 11. VIOLATION OF COURT ORDERS - MANDATORY ARREST
A. Willful violation of an order issued under Section 5 (a) or Section 6 of this Chapter shall constitute contempt of court punishable as provided in Title V., Rule 46 of the Northern Cheyenne Code.
B. A police officer shall arrest without a warrant and take into custody any person who the police officer has probable cause to believe has violated an order issued under Section 5 (a) or Section 6 of this Chapter.
C. All provisions of an order issued under Section 5 (a) or Section 6 of this Chapter shall remain in full force and effect until the order terminates or is modified by the Court. Violation of the order, including any prohibition against entering a residence is not excused by the consent or permission of the alleged victim or any other person.
D. Any person who knowingly violates an order issued under Section 6 of this Chapter may, after notice and hearing, be assessed a civil penalty in an amount not to exceed $500.00 and 5 days in jail. This civil penalty cannot be suspended.
No police officer shall be held criminally and civilly liable for making an arrest authorized by this Chapter, provided he/she acted in good faith and without malice.
If any provision of this Chapter or the application thereof to any person or circumstances is held invalid, its invalidity does not affect other provisions or applications of this Chapter which can be given effect without the invalid provision or application, and to this end the provisions of this Chapter are severable.
PROTOCOL FOR PROCESSING
DOMESTIC ABUSE CASES
PURPOSE: To promote a mutual working relationship and cooperation between the Northern Cheyenne Law Enforcement Services, the Northern Cheyenne Office of the Prosecution and the Northern Cheyenne Tribal Court, to ensure compliance with the Ordinance 4 (92). Provide guidance and support to both victim and perpetrator towards rehabilitation and to reestablish family harmony.
RESPONSIBILITIES OF EACH AGENCIES:
POLICE DEPARTMENT:
1. As the primary investigative authority, the police officers will respond to calls of suspected or reported domestic violence incidents, the same as any other calls brought to their attention.
2. Upon responding to call domestic abuse, the police officers will begin an immediate investigation, interview the victim, any witnesses that may be present during the incident and obtain written statements. If the batterer is still at the scene, then an immediate arrest should be effected and have the batterer removed from the home setting.
3. The police officer will complete necessary reports, to include the arrest and/or case reports, statement from victim, witnesses, medical reports and if necessary, photographs of injuries sustained in the assault.
4. Police Officer will make immediate referrals to the other services agencies, such as the Healing Hearts Program, and Northern Cheyenne Social Services. Social Services can be contacted if the children placement with immediate family members cannot be made.
5. In the event, the placement of the children has been made with the immediate relatives, then the Social Services must still be notified of the situation.
6. If serious injuries are sustained by the victim and injuries appear to be very serious or life threatening, then the Criminal Investigator should be promptly notified.
7. After completion of the initial investigation of domestic abuse situation, the Tribal Detective shall be notified. The Tribal Detective will then determine the extend of the case.
8. If the batterer has been arrested and confined and obtaining statement was not completed, then the tribal detective will follow up on the process.
9. The victim can be advised that protection orders are available through the Northern Cheyenne Tribal Court. The following can be petitioned through the Northern Cheyenne Tribal Court, during normal working hours:
a. A temporary restraining order against the abuser. That the order can be obtained ordering the abuser from the household, school or business of the victim.
b. An order can be obtained awarding temporary custody of minor children of the victim, and that the abuser can be ordered to pay support to the victim and minor children regardless if the victim is male or female.
10. As stated in the Domestic Abuse Ordinance 4 (92): 4. Reports. In cases where a police officer is called to a scene in which domestic abuse is suspected, but in the discretion of the police officer, no arrest is made by the officer, the officer shall write and file a written report explaining the reason for not making an arrest.
TRIBAL DETECTIVE:
The Tribal Detective position has been activated to pursue the domestic abuse cases that have been reported. The detective will work closely with the police officers to ensure that all its of the Protocol and the Domestic Abuse Ordinance have been adhered to.
1. Upon notification from the police department, the detective will determine the progress of the investigation and will respond by coming to the police department and conduct follow-up investigation.
2. Will assume the investigation by interviewing and obtaining a statement from the victim and ensure that the victim is afforded all civil remedies available through the Tribal Court.
3. Ensure that all physical and documentive evidence is included in the case file. The detective's responsibility is make sure that all physical and documented evidence has been obtained and prepare the case for trial.
4. In the event the perpetrator enters the plea of Not Guilty, then the case will be presented to the Chief Prosecutor for review. The review of the case will determine if all points of law have been addressed.
5. In the event of serious injury to the victim, and the detective feels that the injuries are serious enough, then the Criminal Investigator should be contacted.
6. In accordance with the Domestic Abuse Ordinance 4(92), if an immediate arrest is not effectuated, then a written report shall be filed explaining the nature of the no arrest.
7. To ensure that the victim's rights have been exercised, as stated in the Domestic Abuse Ordinance 4 (92), under Other Provisions: 3. Victims Rights. The victim of domestic abuse shall be informed by the arresting police officer of the local shelter, and shall inform the victim that a contact is made with that shelter. Shall inform the victim that a mining order is available against the abuser, that an order can be obtained ordering the abuser from household, school or business of the victim. That an order can be obtained awarding temporary custody of minor children to the victim and minor children regardless if the victim is male or female.
8. Will conduct weekly review of the domestic abuses with Chief Prosecutor. The purpose of the weekly review to ensure that all cases are ready for trial and/or to further pursue other domestic abuse cases.
9. The Tribal Detective does not have the authoring to make arrests.
VICTIM ADVOCACY COORDINATOR:
This position is to establish a legal advocacy service program for victims of domestic violence by providing complete information and support for the victim of domestic violence. As the case against her abuser develops and moves through the criminal justice system designed to ensure that a domestic violence victim has complete information about the status of her case and assistance in planning for her long and short-term safety. From the time an abuse report is filed through the post sentencing of the offender, including any time during which the offender is subject to probation or parole supervision.
1. This person will be trained in the existing domestic violence and sexual assault laws.
2. A primary responsibility of this position will be to monitor compliance with domestic violence arrest policies from the victim's perspective. Where problems are found to exist this individual will advocate for appropriate changes utilizing the Multi-discipline Coordinating Council and the Police Officer/Coordinator.
3. This position will stress collaboration and share the responsibility for ensuring the safety of the victim; a. Seek to change attitudes that have traditionally prevented the professionals in the criminal justice system from responding to domestic violence as a serious violation of criminal law, and, b. Research information on improved methods for tracking domestic violence cases.
4. This person will develop a community review process for issues related to domestic violence.
5. To centralize and coordinate police enforcement, prosecution, probation, parole or judicial responsibility for domestic violence cases.
6. Educate judges and others responsible for judicial handling of domestic violence cases, in tribal criminal courts about the domestic violence and improve judicial handling of such cases.
POLICE OFFICER/COORDINATOR:
This position will be responsible for formulating training plans and sessions with the police department, tribal court personnel, and the social services of the Northern Cheyenne Reservation. The main responsibility is to coordinate all activities relating to the domestic abuse and/or violence.
1. During the absence of the Tribal Detective, the Police Officer/Coordinator will respond to those domestic violence calls as they occurred.
2.The Police Officer/Coordinator does not have arresting authority.
3. Act as a liaison between Northern Cheyenne tribal Court, Board of Health Family Services, Bureau of Indian Affairs police department, and Healing Hearts Program.
4. Shall coordinate Domestic Violence training among the service provider
5. Will facilitate training among service provider agencies and will educate the police officers and Tribal court judges on a yearly basis.
6. Will be responsible for updating the existing protocol and ensure that correct information is maintained in that document.