CHAPTER 1

GENERAL PROVISIONS

Section 101. The Tribal Domestic Violence Code is construed to promote the following:

1. That violence against family members is not in keeping with traditional Native values. It is the expectation that the criminal justice system respond to victims of domestic violence with fairness, compassion, and in a prompt and effective manner. The goal of this code is to provide victims of domestic violence with safety and protection.

2. It is also the goal to utilize the criminal justice system in setting standards of behavior within the family that are consistent with traditional Native values and, as such, the criminal justice system will be utilized to impose consequences upon offenders for behaviors that violate traditional Native values that hold women and children as sacred. These consequences are meant as responses that will allow offenders the opportunity to make positive changes in their behavior and understand "Native cultural values".

3. The prevention of future violence in all families through prevention and public education programs that promote cultural teachings and traditional Native values so as to nurture non-violence within Native families and respect for Native women.

Section 102. Authority of the Tribe to regulate domestic violence in its jurisdictional territory.

1. By treaty, the Tribe has the right to exclude non-members as well as an inherent authority to protect its political integrity and provide for the welfare of its members and others who choose to live within its territory.

2. The problem of domestic violence within the boundaries of the Tribe is seriously impacting the ability of the tribe to provide for the health and well-being of its tribal members and threatens the political integrity of the tribe.

3. Domestic violence is also being perpetrated by or against persons who are not members of the Tribe. These activities of non-members and non-Indians, who have entered into consensual relations with tribal members, will be regulated under this ordinance just as the activities of tribal members.

Section 103. Definitions

Unless the context otherwise requires, as used in the Tribal Code:

1. "Domestic violence/abuse" means the occurrence of one or more of the following acts by a family or household member, but does not include acts of self-defense:

(a) Attempting to cause or causing physical harm to another family or household member;

(b) Placing a family or household member in fear of physical harm; or

(c) Causing a family or household member to engage involuntarily in sexual activity by force, threat of force, or duress.

2. "Family or household members" include:

(a) Adults or minors who are current or former spouses;

(b) Adults or minors who are dating or who have dated, including those persons involved in a same sex relationship;

(c) Adults or minors who are engaged in or who have engaged in a sexual relationship including same sex relationships;

(d) Adults or minors who are related or formerly related by marriage as recognized by western or Native tradition; including same sex relationships;

(e) Persons who have a child in common; and

(f) Minor children of a person in a relationship that is described in paragraphs (a) through (e).

3. "Program of intervention for perpetrators" means a specialized domestic violence offenders’ program that accepts court orders and voluntary participants that:

(a) Offers intake, orientation, and placement in a domestic violence class;

(b) Offers a minimum of 48 re-education classes;

(c) Offers other programs designed to provide information and interventions to stop violence against Native women;

(d) Utilizes historical/cultural information in re-educating perpetrators of domestic violence regarding responsible Native behavior in the family/community/nation.

(e) Makes available and integrates the specialized function, knowledge and expertise of elders and medicine people.

4. "Program for victims of domestic violence" means a specialized program for victims of domestic violence and their children whose primary purpose is to provide advocacy and related services that includes but is not limited to advocacy, shelter, crisis intervention, supportive services, referral, and makes available the specialized knowledge and expertise of elders and medicine people.

5. "Safety plan" means a written or oral outline of actions to be taken by a victim of domestic violence to secure protection and support after making an assessment of the dangerousness of the situation.

Section 104. Severability Clause

If any clause, section or part of this ordinance is declared invalid by the tribal court, such shall not render invalid the remainder thereof, but shall be confined in its operation to the offending section.

Section 105. Specific Applicability

The section herein applies specifically to this domestic violence code and takes precedence over any general laws of applicability.

CHAPTER 2

CRIMINAL PENALTIES AND PROCEDURES

Section 201. "Crime involving domestic violence" defined.

Crimes involving domestic violence as defined in Section 103 are oftentimes already defined under the existing Tribal Code. The purpose of this ordinance is to clarify that domestic violence is a separate crime punishable separate and apart from the underlying crime, and to acknowledge that when the following crimes against a family or household member, a finding of such shall trigger the application of this ordinance. The crime of domestic violence occurs when a family or household member commits one or more of the following offenses against another family or household member:

1. Arson;

2. Assault Offenses (Battery, Aggravated Assault, Simple Assault, and Intimidation);

3. Burglary, Breaking and Entering;

4. Destruction of Property, Damage, Vandalism of Property

5. Homicide Offenses (Murder and Non-negligent Manslaughter, Negligent Manslaughter, and Justifiable Homicide);

6. Kidnapping, Abduction;

7. Sex Offenses, Forcible (Forcible Rape, Forcible Sodomy, Sexual Assault with an Object, and Forcible Fondling);

8. Stolen Property Offenses;

9. Weapon Law Violations;

10. Disorderly Conduct;

11. Family Offenses, Non-Violent;

12. Stalking;

13. Trespass of Real Property;

14. Intoxication;

15. Habitual;

16. Harassment;

Committing the above stated should not diminish the seriousness of domestic violence or take precedence over the crime of domestic violence since the intent of this code is to prevent further acts of domestic violence. The commission of one of the above-referenced crimes against a family or household member shall trigger the application of this ordinance, even if the criminal complaint is also charged as one these offenses. The purpose of this code is to differentiate between these crimes committed against non-family and non-household members and those against family and household members as defined in Section 103 which shall be subject to the provisions of this ordinance.

The use of alcohol in the committing of domestic violence or any crime related to domestic violence shall not diminish the seriousness of domestic violence or take precedence over the crime of domestic violence. The fact that the perpetrator was under the influence at the time of the offense shall not be utilized by law enforcement prosecution or court to mitigate the severity of the violence. Voluntary intoxication, which is available as a legal defense only in cases involving specific intent crimes, shall not be available as a defense to a perpetrator, nor shall it be utilized to lessen the consequences to the perpetrator

Section 202. Violation of certain orders for protection is a misdemeanor.

Violation of one of the following orders issued in accordance with the Tribal Domestic Violence Code is a misdemeanor.

1. An order enjoining the respondent from threatening to commit or committing acts of domestic violence against the petitioner or other family or household member.

2. An order prohibiting the respondent from harassing, annoying, telephoning, contacting, or otherwise communicating verbally or in writing with the petitioner directly or indirectly through family members, relations by marriage, friends, and co-workers.

3. An order removing and excluding the respondent from the residence of the petitioner.

4. An order requiring the respondent to stay away from the residence, school, place of employment, or a specified place frequented regularly by the petitioner and any named family or household member.

5. An order granting temporary custody and child support regarding children, denying visitation or outlining specific visitation conditions and restrictions, including supervised visitation.

6. An order prohibiting the respondent from using or possessing a firearm or other weapon specified by the court.

7. An order requiring the respondent to attend domestic violence classes;

8. An order requiring the respondent to obey all laws of the Tribe.

The petitioner in who is granted an order for protection cannot violate or be arrested for a violation of her/his own order for protection.

Any person granted a civil or criminal order of protection from the Tribal Court or any other court of competent jurisdiction cannot be punished for a violation of that order for protection under this ordinance. It shall not be a defense to a charge of violation of an order for protection under this section that the victim consented to the violation by encouraging contact or a violation of the order of protection. A violation of an order for protection shall be a Class _______ misdemeanor.

Section 203. Enhancement of penalty for second or subsequent crime involving domestic violence.

When a defendant makes a judicial admission, pleads guilty to, or has been found guilty of a second or subsequent crime involving domestic violence within five years, the penalty is enhanced by one degree above the penalty otherwise provided for that offense or as otherwise enhanced for an habitual offender.

This section shall apply to any offense committed after the enactment of this section, but any conviction of a crime of domestic violence committed before enactment of this section may be considered in determining whether the sentence should be enhanced.

Section 204. Duties of law enforcement officer to victim of domestic violence; required notice to victim.

1. A law enforcement officer who responds to an allegation of domestic violence shall use all reasonable means to protect the victim and others present from further violence and has a duty to arrest upon finding probable cause to believe that domestic violence has occurred. A law enforcement officer need not obtain a search warrant in order to enter a residence where s/he has probable cause to believe a crime of domestic violence is occurring or has just occurred, nor to seize property under this subsection. Such means includes but are not limited to:

(a) Taking the action necessary to provide for the safety of the victim and any family or household member.

(b) Confiscating any weapon involved in the alleged domestic violence.

(c) Transporting or obtaining transportation for the victim and any child(ren) to a shelter or any other place of safety.

(d) Assisting the victim in removing essential personal effects.

(e) Assisting the victim and any child(ren) in obtaining medical treatment, including obtaining transportation to a medical facility.

(f) Giving the victim immediate and adequate notice of the rights of victims and or the remedies and services available to victims of domestic violence.

2. As part of the notice required by paragraph (f) of subsection 1, the law enforcement officer shall give, in addition to verbal notification, written notice to the adult victim substantially as follows:

"If you are the victim of domestic violence and you believe that law enforcement protection is needed for your physical safety, you have the right to request that the officer assist in providing for your safety, including asking for an emergency order for protection that will provide for your immediate protection. You may also request that the officer assist you in obtaining your essential personal effects and locating and taking you to a safe place, including but not limited to a shelter, a family member's or friend's residence, or a similar place of safety. If you are in need of medical treatment, you have the right to request that the officer assist you in obtaining medical treatment. You may request a copy of the report at no cost from the law enforcement department.

Please be advised that the prosecutor may choose to file a criminal complaint against your assailant. You also have the right to file a petition requesting a permanent order for protection from domestic violence which could include any of the following orders:

(a) An order enjoining your abuser from threatening to commit or committing further acts of domestic violence;

(b) An order prohibiting your abuser from harassing, annoying, telephoning, contacting or otherwise communicating with you, directly or indirectly through family members, relations by marriage, friends, and co-workers.

(c) An order removing your abuser from the residence regardless of ownership;

(d) An order directing your abuser to stay away from your or any other designated household/family member's place of residence, school, place of employment, or any other specified place frequented by you.

(e) An order prohibiting your abuser from using or possessing any firearm or other weapon specified by the court;

(f) An order granting you possession and use of the automobile and other essential personal effects regardless of ownership;

(g) An order granting you custody of your child or children;

(h) An order denying your abuser visitation;

(i) An order specifying arrangements for visitation, including requiring supervised visitation; and

(j) An order requiring your abuser to pay certain costs and fees, such as rent or mortgage payments, child support payments, medical expenses, expenses for shelter, court costs, and attorney's fees.

The forms you need to obtain an order for protection are available from _______ [shelter] advocates and/or the clerk of court. The community services available to assist you in obtaining information relating to domestic violence, treatment of injuries, and places of safety and shelter are _______. You also have the right to seek reimbursement for losses suffered as a result of the abuse, including medical and moving expenses, loss of earnings or support, and other expenses for injuries sustained and damage to your property. This can be done through tribal court.

3. The written notice:

(a) Must not include the addresses or locations of shelters.

(b) Must be provided in the native language of the victim, if practicable, when the native language of the victim is not English.

4. Any law enforcement officer who enforces this section in good faith shall be immune from suit by any person alleging a violation of this subsection or any other section of tribal law.

Section 205. Mandatory arrest for crimes involving domestic violence; determination of predominate aggressor; required report.

1. A law enforcement officer shall arrest any person, with or without a warrant, whom s/he has probable cause to believe committed any crime involving domestic violence as defined in Section 201, either in the presence of the officer or within 48 hours of a report to law enforcement of the commission of such offense, whether the offense is a felony or a misdemeanor. The officer shall promptly file a report and charge the arrestee with a criminal act.

2. Regardless of the elements of any other crime committed in conjunction with the crime of domestic violence, the crime of domestic violence shall be considered a separate and distinct offense and shall be charged in addition to any other crime.

3. If a law enforcement officer receives complaints of domestic violence from two or more opposing persons, the officer shall evaluate each complaint separately to determine who was the predominate aggressor. If the officer determines that one person was the predominate aggressor, the officer need not arrest the other person alleged to have committed domestic violence. In determining whether a person is the predominate aggressor, the officer shall consider:

(a) The history of domestic violence, both documented prior complaints and convictions and the law enforcement officer's own prior knowledge of the family;

(b) The relative severity of the injuries inflicted on each person, i.e., who in this relationship poses the most danger to the other?

(c) The likelihood of future injury to each person, i.e., Who is at the most risk of future harm?; and,

(d) Whether one of the persons acts in self-defense and/or in defense of others;

(e) The degree to which one of the persons has acted with more deliberate intent to control, isolate, intimidate, emotionally demean, cause injury or pain or fear of harm to the person or a third party.

4. A law enforcement officer shall not threaten, suggest, or otherwise indicate the possible arrest of all parties to discourage requests for intervention by any party.

5. A law enforcement officer shall not consider the use or abuse of alcohol by either party in making a determination as to whether or not domestic violence has been committed.

6. The employment, economic, educational, social, physical and/or mental health and political status of the alleged perpetrator and/or victim shall not be considered in making an arrest.

7. The law enforcement officer is not required to make an arrest based on who hit who first but shall consider the dynamics of domestic violence and the definition of predominate aggressor in determining which party to arrest.

8. In addition to any other report required, a law enforcement officer who does not make an arrest after investigating a complaint of domestic violence or who arrests two or more persons for a crime involving domestic violence must submit a written report setting forth the grounds for not arresting or, in instances where both parties are arrested, separate reports for each party must be submitted that describe how the determination was made that both parties acted as principle aggressors and that neither party acted primarily in self-defense.

9. Any reports shall be forwarded to _______ [shelter], within 48 hours of a report of domestic violence, regardless of whether or not an arrest was made, arrests were made of two or more persons, or a predominate aggressor was identified and arrested.

Section 206. Mandatory arrest for certain violations of orders for protection.

When a law enforcement officer has probable cause to believe that a respondent has violated one of the following orders of the court and verifies the existence of the order, the officer shall, without a warrant, arrest the apparent violator, whether the violation was committed in or outside the presence of the officer if the orders are issued in accordance with Tribal Domestic Violence Code, or in accordance with the laws of any other jurisdiction provided such laws comply with 18 U.S.C. 2265. An officer making an arrest under this subsection shall be immune from suit provided s/he acted in good faith.

1. An order enjoining the respondent from threatening to commit or committing acts of domestic violence against the petitioner or other family or household member.

2. An order prohibiting the respondent from harassing, annoying, telephoning, contacting or otherwise communicating with the petitioner, either directly or indirectly through family, relations by marriage, friends, and co-workers.

3. An order removing and excluding the respondent from the residence of the petitioner.

4. An order requiring the respondent to stay away from the residence, school, place of employment, or a specified place frequented regularly by the petitioner and any named family or household member.

5. An order prohibiting the respondent from using or possessing a firearm or other weapon specified by the court.

6. An order requiring the respondent to attend domestic violence classes.

7. An order requiring the respondent to abide by all laws of the Tribe.

The petitioner who is granted an order for protection cannot violate or be arrested for violation of her/his own order for protection.

Section 207. Change of venue prohibited.

The court where domestic violence charges were initially filed shall be the court of record except in situations where the alleged perpetrator or alleged victim can demonstrate:

1. Bias on the part of the court of record.

2. Personal bias on the part of the prosecutor of the court of record and/or any prosecutor assigned specifically to handle domestic violence cases.

3. Inability of the court of record to produce an unbiased jury pool to hear the case.

In the event that the alleged perpetrator believes the above conditions exist, s/he may file a motion for a change of venue at the time of arraignment. Said motion shall be heard in the court of record within two weeks following the filing of the motion.

Section 208. Agencies and/or departments cited in this code shall not use the court system to resolve in-house or interagency conflicts pertaining to domestic violence cases; court shall refer back to agency or department for administrative remedies.

The court shall not become involved in in-house or interagency conflicts pertaining to domestic violence cases but shall recommend to the complaining party that s/he utilize in-house administrative remedies and/or implement a mediation process in the event of interdepartmental conflict.

Exceptions to this section are limited to:

1. If an employee is in conflict with another department, s/he cannot utilize the criminal justice system to attempt remedies. However, if in the course of said inter-departmental conflict, a criminal act is perpetrated against the employee, s/he may request a law enforcement investigation and/or filing of criminal complaints against the alleged perpetrator.

2. Civil complaints shall not be allowed unless an employee proceeds with a criminal process that demonstrates violent behavior and would place the employee in fear of imminent bodily harm.

Section 209. Officials who batter, including law enforcement officers; procedure.

Upon receiving notification that a law enforcement officer is a possible perpetrator:

1. The dispatcher shall immediately notify the Captain and a duty supervisor or designate. The supervisor will either respond to the call or will notify the officer's supervisor.

2. Line officers may secure the scene and ensure the safety of all parties, if necessary, and await the response of a superior. However, under no circumstances will line officers investigate calls regarding other fine officers or superior officers.

3. Someone of higher rank than the alleged perpetrator must always be involved in responding.

4. Immediate surrender or confiscation of all weapons.

5. Weapons can only be released by the Chief of Police.

6. Written reports of the incident will be forwarded to the tribal prosecutor and _______ [shelter] within 12 hours of the incident.

7. Investigation and prosecution for domestic violence will proceed regardless of administrative, interagency, or departmental investigation and sanctions.

Upon receiving notification that a public official is a possible perpetrator:

1. The dispatcher shall notify the on call criminal investigator or designate who shall respond immediately.

2. Law enforcement officers and public officials who are suspected of committing the crime of domestic violence shall be subject to all provisions of the Tribal Domestic Violence code, including mandatory arrest for probable cause and all laws involving firearms disqualification herein.

 

Section 210. Authority of law enforcement officer to seize weapons.

Incident to an arrest, or in the course of securing a crime scene involving domestic violence, a law enforcement officer:

1. Shall seize all weapons that are alleged to have been involved or threatened to be used in the commission of a crime or any weapon in the immediate vicinity of the alleged commission of the offense.

2. Shall seize a weapon that is in the plain view or which is located during a search authorized by a person entitled to consent to the search. The seizure of weapons is without regard to ownership of the weapons; weapons owned by a third party are subject to confiscation when officers conclude that the weapon must be confiscated to protect law enforcement, victims of domestic violence, or others.

 

Section 211. Immunity.

1. Any law enforcement officer shall have immunity from any liability, civil or criminal, in making arrests or exercising any other authority granted it under this section when domestic violence or any crimes involving domestic violence have been committed, if the law enforcement officer acts in good faith and upon the best information so as to provide protection for victims of domestic violence.

2. Law enforcement officers shall have the same immunity with respect to participation in any court proceedings resulting from arrests made for domestic violence or any crimes involving domestic violence.

Section 212. Detention.

Any person detained for the crime of domestic violence and /or any related offenses is under the care and supervision of the Tribal Department of Public Safety Division of Corrections. There are certain privileges available to inmates at the discretion of Corrections personnel. This section’s purpose is to provide the greatest safety mechanisms possible to victims of domestic violence. As such, Corrections personnel shall:

1. Prior to arraignment.

(a) Place all outgoing telephone calls; record the telephone number called and whether or not the party was contacted in the telephone log;

(b) Outgoing calls may be made to an attorney or family member. Telephone calls to the victim are prohibited.

(c) Visitation is limited to state or tribally licensed attorneys, _______ [shelter] personnel, mental health, tribal or state Department of Social Services, and chemical dependency professional.

2. Upon booking.

Corrections personnel shall check all available information such as Order for Protection and probation status and notify _______ [shelter] personnel, the prosecutor’s office and the arresting officers of findings.

3. Instances of mutual arrest.

In the event of mutual arrest (both parties are arrested) and detention, Corrections personnel shall arrange transport of one party to an alternate detention facility.

4. Inmate threats.

In the event an inmate threatens physical injury, retaliation, or makes verbal statements that indicate an intent to harm the alleged victim, domestic violence advocates, criminal justice personnel, or any reporting parties or witnesses, Corrections personnel shall complete an incident report and forward it to his/her supervisor and the prosecutor’s office.

5. Detention restrictions following conviction shall include:

(a) Any person convicted of or found guilty of domestic violence and/or other related offenses shall not be allowed trustee status.

(b) Shall not be allowed telephone contact with the victim in instances where an Order for Protection is in place prohibiting such contact.

(c) Other telephone privileges shall be permitted within the policies of the Division of Corrections.

(d) In the event an Order for Protection is in place and the victim seeks visitation of the inmate, Corrections personnel shall advise the inmate that an Order for Protection prohibits such contact and is in violation of the Order for Protection. Further, should the inmate choose to make contact, Corrections personnel are required to complete a report advising of the contact and forward it to the Prosecutor’s office and the _______ [shelter] domestic violence department.

6. No bond and no release conditions:

Inmates ordered held with no bond and no release until hearing shall be subject to the same conditions of detentions as described in Section 212.1.

 

Section 213. Conditions of pre-trial release.

1. No person arrested for a crime of domestic violence or violation of an order for protection under this ordinance shall be released from detention until after the expiration of 72 hours from arrest, excluding weekends and holidays, notwithstanding the ability to post a cash or surety bond or the failure of the prosecutor to file a criminal complaint.

2. During the 72 hours and prior to arraignment, _______ [shelter] personnel shall meet in person with the alleged assailant and discuss the availability of _______ [shelter] domestic violence re-education classes and other local rehabilitative services that might be available.

3. In making a decision concerning pretrial release of a person who is arrested for or charged with a crime involving domestic violence or a violation of an order for protection, the court may ask for a pretrial investigation and, regardless of whether or not any such investigation report and recommendations are asked for, the court shall review the facts of arrest and detention of the person and determine whether the person:

(a) Is a threat to the alleged victim or other family or household member;

(b) Is a threat to public safety, and;

(c) Is reasonably likely to appear in court.

4. The court may order the defendant to be held until trial; trial shall be expedited.

5. The use or abuse of alcohol and/or other chemicals by the alleged perpetrator shall be considered, not only in relationship to the alleged assault but as alcohol and/or other chemicals relate to the alleged perpetrator's overall lifestyle, in the likelihood that alcohol and/or other chemicals greatly increases the likeliness or unlikeliness of a person to appear in court, potential for lethality, and enhances the possibility of further threats or injury to the victim or others.

6. The employment, economic, educational, social and political status of the alleged perpetrator shall not be considered in making a determination regarding release.

7. Before releasing a person arrested for or charged with a crime involving domestic violence or a violation of an order for protection, the court shall make findings on the record, if possible, concerning the determination made in accordance with subsection I and may impose conditions of release or bail on the person to protect the alleged victim of domestic violence and to ensure the appearance of the person at a subsequent court proceeding. The conditions may include:

(a) An order enjoining the person from threatening to commit or committing acts of domestic violence against the alleged victim or other family or household member.

(b) An order prohibiting the person from harassing, annoying, telephoning, contacting, or otherwise communicating with the alleged victim, either directly or indirectly through family, relations by marriage, friends, or co-workers.

(c) An order directing the person to vacate or stay away from the home of the alleged victim and/or child(ren) and to stay away from any location where the victim is likely to be.

(d) An order prohibiting the person from using or possessing a firearm or other weapon specified by the court.

(e) An order prohibiting the person from possession or consumption of alcohol or controlled substances.

(f) An order requiring regular supervision by the _______ [shelter] domestic violence probation department until the trial date.

(g) Any other order required to protect the safety of the alleged victim and to ensure the appearance of the person in court.

8. If conditions of release are imposed, the court shall:

(a) Issue a written order for conditional release;

(b) Immediately distribute a copy of the order to the prosecutor's office, Public Safety, and _______ [shelter], and;

(c) Provide Public Safety with any available information concerning the location of the perpetrator in a manner that protects the safety of the victim.

9. The clerk of courts or jail shall provide a copy of the conditions to the arrested or charged person upon his or her release. Failure to provide the person with a copy of the conditions of release does not invalidate the conditions if the arrested or charged person has notice of the conditions.

10. If conditions of release are imposed without a hearing, the arrested or charged person may request a prompt hearing before the court to review the conditions. Upon such a request, the court shall hold a prompt hearing to review the conditions.

11. When a person who is arrested for or charged with a crime involving domestic violence or a violation of an order for protection is released from custody, or has escaped from custody, the prosecution and/or _______ [shelter], shall:

(a) Use all reasonable means to immediately notify the victim of the alleged crime of the release; and

(b) Furnish the victim of the alleged crime at no cost an official copy of any conditions of release.

12. The address of the victim is confidential and law enforcement, prosecution and the court are prohibited from divulging it.

Section 214. Self-defense: Judicial safeguards for victims.

In the event of a dual arrest for domestic violence, or where a female perpetrator has been arrested, the presiding judge will take judicial notice of all factors in the case, including determinants for predominate aggressor, before entering a guilty plea by an alleged female perpetrator. Indications of self-defense shall be sufficient reason for a judge to order a hearing to show cause before a proceeding with a domestic violence charge against the alleged female perpetrator. Such procedure and hearing shall take place to determine possible self defense, with or without concurrence of the prosecutor.

During such hearing to show cause, the presiding judge will entertain any pertinent information and/or expert testimony of domestic violence advocates pertaining to domestic violence or any other factors relating to the self-defense characteristics displayed in domestic violence cases.

Section 215. Mandatory arrest for violation of conditions of release.

If a law enforcement officer has probable cause to believe that a person has violated a condition of release imposed in accordance with section 209, the officer shall, without a warrant, arrest the alleged violator whether the violation was committed in or outside the presence of the officer.

A sworn affidavit by a domestic violence probation officer, _______ [shelter] employee or upon the report of a person to be protected under a domestic violence order for protection, of such violation will constitute probable cause to arrest without warrant, under this section.

Section 216. Written procedures for prosecution of domestic violence purpose.

Within 120 days following the enactment of the Domestic Violence Code, the Attorney General shall develop, adopt, and put into effect written procedures for the prosecution of domestic violence crimes to ensure the effective prosecution of domestic violence crimes, to include:

1. A mandatory "cooling off' period prior to arraignment.

2. The employment, economic educational, physical and/or mental health and political status of the alleged perpetrator and victim shall not enter into determinations for domestic violence crimes.

3. A "no drop" policy which prohibits victims from withdrawing charges.

4. The prohibition of no contest, diversion, and deferred sentencing.

5. The use or abuse of alcohol by the alleged perpetrator or victim shall not be a primary factor in determining the pursuit of domestic violence cases but shall be considered as it relates to the safety of the victim and potential lethality.

6. A process describing the utilization of advocates during every phase of criminal justice proceedings.

7. No member of the prosecution office has the authority to order the release of an alleged perpetrator prior to the procedures described in Section 209.

8. Prosecution will not dismiss a domestic violence case without prior consultation and review with the arresting officer and advocate.

9. Prosecution shall expedite proceedings with a minimum of continuances and shall consider the present residency of the victim as it relates to continuances, especially if the victim has relocated off the reservation for safety.

10. The victim may but shall not be required to act as the primary witness. In instances requiring "victimless" prosecution, the prosecution is required to enlist any and all evidentiary avenues, including photographs, other witnesses, excited utterance and other law enforcement testimony, medical records, history of past abuse, etc.

11. The prosecution shall make every reasonable effort and shall include advocacy in an attempt to avoid charging victims with contempt in instances where victims refuse to testify or cooperate in the criminal justice process.

12. In recognizing domestic violence as a crime and not a relationship issue, the prosecution shall not recommend or promote any actions that require the victim to engage in any type or form of a mediation process with the alleged assailant such as mediation, peace-making, alternative justice, restorative justice, family counseling, couple counseling, circle sentencing, etc.

13. Enhanced measures to protect victims when the perpetrator is a repeat offenders.

14. Any other policies and procedures that serve as reasonable efforts to ensure the protection and safety of victims of domestic violence.

Section 217. Duty of prosecutor to notify victim.

1. A prosecutor shall make reasonable efforts to notify a victim of an alleged crime involving domestic violence when the prosecutor has decided to decline prosecution of the crime, to dismiss the criminal charges filed against the defendant, or to enter into a plea agreement.

2. Release of a defendant from custody must not be delayed because of the requirements of subsection 1.

Section 218. Record of dismissal required in court file.

When a court dismisses criminal charges or a prosecutor moves to dismiss charges against a defendant accused of a crime involving domestic violence, the specific reasons for the dismissal must be recorded in the court file. The prosecutor shall indicate the specific reason why any witnesses are unavailable and the reasons the case cannot be prosecuted. Any dismissal of a complaint by the Court, for any reason other than insufficient evidence, may be appealed by the Tribe or the victim to the Tribal Supreme Court.

Section 219. Dismissal of criminal case prohibited because civil compromise reached.

A court shall not dismiss a criminal case involving domestic violence for the sole reason that a civil compromise or settlement is reached. Evidence of a civil compromise or settlement shall not be admissible in the criminal proceeding as evidence of consciousness of guilt or innocence, or an admission against interest. It shall also not be used to impeach a victim's testimony.

Section 220. Rights of victims of domestic violence; duty of prosecutor to inform victim of rights.

1. A victim of domestic violence is entitled to all rights granted to victims of crime including but not limited to:

(a) Be informed of all hearing dates and continuances.

(b) Provide the court with a victim impact statement, victim-opinion statement, and an assessment of the risk of further harm.

(c) Be present at sentencing and address the court.

(d) Advise the court of conditions of probation and parole required to ensure the safety of the victim and other family or household members.

(e) Restitution for losses sustained as a direct consequence of any criminal conduct.

(f) Apply for any available victims' compensation and to be informed of procedures for applying.

(g) Receive notice from the prosecutor in accordance with section 211.

2. The prosecutor shall notify the victim of domestic violence of the victim's rights set forth in this section in writing. For notice to be meaningful, it should be actual, timely, and written in a language in which the victim is competent.

Section 221. Security and confidentiality of domestic violence shelter/program; Restrictions.

1. The security and confidentiality of any domestic violence shelter/program within the exterior boundaries of the Tribe shall be recognized by the court, law enforcement, and other service agencies as existing for the safety of victims of domestic violence. Advocates and shelter staff will not substantiate, verify, or deny placement information or the whereabouts of any domestic violence victim, or his/her children, under the privilege of Section 218.

2. Law enforcement officers and/or criminal investigators will contact the domestic violence shelter/program with any message for individual victims concerning investigations or victim information. Law enforcement officers will not attempt coercion, duress, or intimidation of shelter staff or advocates to gain access to the shelter or information on the whereabouts of any victim. Any such attempt will be considered a violation of Section 218 and any information gained from such an attempt will not be admissible in any tribal court proceeding.

3. No judge or officer of the Tribal Court will issue or initiate any search warrant, pick-up order, summons, bench warrant or any notice of court proceedings specifying the domestic violence shelter/program as the individual's residence and/or location. Nor shall the shelter or domestic violence program be named as a party in any court action involving individual victims that may or may not be receiving advocacy services from the domestic violence shelter/program.

4. While the domestic violence shelter/program may not be named as party to any individual's court proceedings, an individual may give permission for a domestic violence shelter/program advocate to obtain court paperwork on her behalf. Such action shall not be construed by the court or law enforcement to mean that the domestic violence shelter/program is party to any court proceedings, civil and/or criminal between the two parties.

Section 222. Spousal privileges inapplicable in criminal proceedings involving domestic violence.

The following evidentiary privileges do not apply in any criminal proceeding in which a spouse or other family or household member is the victim of an alleged crime involving domestic violence perpetrated by the other spouse:

1. The privilege of confidential communication between spouses.

2. The testimonial privilege of spouses.

Section 223. Advocate-victim privilege applicable in cases involving domestic violence.

1. Except as otherwise provided in subsection 2, a victim of domestic violence may refuse to disclose, and may prevent an advocate, elder, or medicine person from disclosing, confidential oral communication between the victim and the advocate and written records and reports concerning the victim unless the privilege is waived by:

(a) The victim; or

(b) The person who was the advocate at the time of the confidential communication, except that the advocate may not claim the privilege if there is no victim in existence or if the privilege has been waived by the victim.

2. The privilege does not relieve a person from any duty imposed in the mandatory reporting of child abuse or neglect. A person may not claim the privilege when providing evidence in proceedings concerning child abuse or neglect.

3. As used in this subsection, "advocate" means an employee of or volunteer for a program for victims of domestic violence who:

(a) Has a primary function of rendering advocacy, counseling, or assistance to victims of domestic violence; supervising the employees or volunteers of the program; or administering the program;

(b) Has undergone a minimum of 40 hours of training; and

(c) Works under the direction of a supervisor of the program, supervises employees or volunteers, or administers the program.

Section 224. Residential confinement in home of victim prohibited; cultural remedies restricted.

In cases involving domestic violence, a court shall not order residential confinement for a perpetrator in the home of the victim. Nor shall the court order any action, even though the action might commonly be perceived by the community as a cultural remedy, that might jeopardize the safety of the victim.

Section 225. Diversion prohibited; deferred sentencing prohibited; no contest prohibited.

A court shall not approve a plea of no contest, diversion or deferred sentencing recommendations for a perpetrator of domestic violence.

Section 226. Conditions of probation for perpetrator convicted of crime involving domestic violence; required reports by probation department.

1. Before placing a perpetrator who is convicted of a crime involving domestic violence on probation, the court shall consider the safety and protection of the victim of domestic violence.

2. The court may condition the granting of probation to a perpetrator in compliance with one or more orders of the court, including but not limited to:

(a) Enjoining the perpetrator from threatening to commit or committing acts of domestic violence against the victim or other family or household member.

(b) Prohibiting the perpetrator from harassing, annoying, telephoning, contacting, or otherwise communicating with the victim, directly or indirectly through family, relations by marriage, friends, or co-workers.

(c) Requiring the perpetrator to stay away from the residence, school, place of employment, or a specified place frequented regularly by the victim and any designated family or household member.

(d) Prohibiting the perpetrator from possessing or consuming alcohol or controlled substances.

(e) Prohibiting the perpetrator from possessing a firearm or other specified weapon.

(f) Directing the perpetrator to surrender any weapons owned or possessed by the perpetrator.

(g) Directing the perpetrator to participate in and complete, to the satisfaction of the court, a program of intervention for perpetrators, treatment for alcohol or substance abuse, or psychiatric or psychological treatment or any other program or service deemed applicable by the domestic violence program or probation officer.

(h) Directing the perpetrator to pay restitution to the victim.

(i) Directing the perpetrator to refrain from any violations of law for the duration of his/her probation.

(j) Imposing any other condition necessary to protect the victim of domestic violence and any designated family or household member or to rehabilitate the perpetrator.

3. The court shall establish policies and procedures for responding to reports of nonattendance or noncompliance by a perpetrator with the conditions of probation imposed pursuant to subsection 2.

4. The court shall order, as a condition of sentencing, that the convicted perpetrator be placed under supervised probation with the _______ [shelter], probation department for a minimum of two years and for a term not to exceed five (5) years.

5. The _______ [shelter], probation department shall document and report to the Tribal Court any violations of law, any assault by the perpetrator, any threat of harm made by the perpetrator, and the perpetrator's failure to comply with any condition imposed by the court or probation department, regardless of where the violation occurred or under what jurisdiction the crime was adjudicated. Such a violation shall be deemed as constituting non-compliance with probation conditions.

Section 227. Release of perpetrator permitted under certain conditions; notice to victim; confidentiality of victim's address.

1. The court may release a perpetrator of a crime involving domestic violence only under conditions that would protect the safety of a victim of domestic violence or other family or household member.

2. The jailer shall notify _______ [shelter], staff who shall notify the victim of a crime of domestic violence of the escape of the perpetrator or of the proposed release of the perpetrator before the date of release of the perpetrator, if the victim has provided _______ [shelter], staff with an address at which s/he can notified.

3. The address of a victim of a crime involving domestic violence is confidential. Law enforcement, criminal justice personnel, probation and advocates shall not reveal any address provided pursuant to subsection 2. Law enforcement, criminal justice personnel, probation and advocates shall be subject to any internal policies or procedures that address breach of confidentiality and could also be subject to Section _______, Disobedience to the Lawful Order of the Court, or any other criminal sanctions existing within the Tribal Code, at the discretion of the Attorney General.

Section 228. Required written policies and procedures.

Within 120 days of the enactment of the Tribal Domestic Violence Code, Public Safety shall develop or adopt and put into effect written policies and procedures concerning:

1. The effective response of the agency to cases involving domestic violence.

2. Enforcement of all applicable Tribal statutes concerning domestic violence.

3. Protection and safety of the victims of domestic violence and other family and household members.

4. The method or process for sanctions against officers or officials who fail to follow or enforce official protocols.

5. Coordination with hospitals and programs for victims of domestic violence.

Section 229. Role of the Court; sentencing; probation conditions

In responding to the crime of domestic violence the court shall:

1. First Offense: If the alleged assailant pleads guilty or is found guilty, the judge shall order a mandatory minimum ten days in jail with a suspended imposition of sentence dependent upon successful completion of the _______ [shelter] domestic violence offenders' program and two years probation.

2. The offender is prohibited from substituting other services or activities such as individual counseling, alcohol treatment or participation in traditional healing practices for participation in a program as defined in Section 201 except for as such activities may be offered through the domestic violence program or sought out voluntarily in addition to the required domestic violence program by the offender.

3. In the event the offender does not comply with the domestic violence program and/or other conditions of probation, the court will find the offender in contempt of court and shall impose service of the original sentence during which time the offender must concurrently attend the domestic violence program. Further, the court will order that any resulting contempt of court sentence be served consecutively.

4. Upon any second or subsequent offense, the offender shall be sentenced to a minimum of six months in jail with three to five years probation with probation to commence at the time of the second offense; prior probation time will not be considered as fulfilling any second or subsequent probationary period and/or any maximum sentencing, fine, rehabilitation, and community service remedies available to the court. An offender shall participate in the program concurrent with any jail and fine sentences imposed by the court.

5. The court will advise the defendant when and where s/he will report to the _______ [shelter] probation department.

6. The victim is not available to the court for any sentencing or court imposed requirements in relation to the offender's sentence for the crime of domestic violence although the court may advise the victim of services available in the community through direct contact, the prosecution or probation office and advocates.

7. Urinalysis testing; domestic violence offenders found to be in non-compliance will serve their full sentence and shall be subject to all rehabilitation efforts available to any offender on probation. The probation officer shall petition the court for release outlining the rehabilitation activity recommended for the perpetrator, the offender shall fulfill the remaining sentence upon completion of the rehabilitation activity.

8. While on probation a perpetrator shall be subject to unannounced portable breathalyzer tests to determine whether the probationer has been consuming alcoholic beverages.

Section 230. Probation violations, process for revocation, consequences.

1. The court shall recognize the signed affidavit of the _______ [shelter] probation department and accompanying documentation outlining any violation of probation conditions as probable cause to issue a warrant for the perpetrator's arrest.

2. Upon arrest for a probation violation, the person on probation will be held, without bond. _______ [shelter] probation department shall submit a probation investigation report and make recommendations to the court regarding further sentencing for the probation violation. Upon review of the affidavit, accompanying documentation, and recommendations, the court will determine whether or not a violation has occurred and enact a sentence of contempt of court. Upon such finding, the court shall enter any suspended sentence and the probationer shall be required to concurrently attend domestic violence classes. The court may impose any additional conditions and consider the appropriateness of additional charges for disobedience to a lawful order of the court. Further charges shall be served consecutively.

3. A person on probation's economic, employment, educational, social, and political status shall not be considered in this process or in any consideration of further sentencing.

4. The jail shall notify _______ [shelter] probation department of any person on probation who is arrested for any crime.

5. In the event the person who is charged with a re-offense of domestic violence and/or any other charge, the _______ [shelter] probation department shall file an affidavit, accompanying documents, and recommendations to the court. A violation of probation that occurs concurrently with other charges shall follow the, same process as outlined in subsection 2 and shall not preclude the prosecution from filing additional charges.

6. The Department of Public Safety shall expedite service warrants to ensure the safety of the victim and community.

Section 231. Mandatory training.

All employees and officials of law enforcement and the criminal justice system shall participate in a minimum of one semester hour equivalent (40 hours) of initial training and sixteen (16) hours of annual training to include but not be limited to:

1. The dynamics of domestic violence, the impact of victimization, offender's re-education programs, coordinated systems response in order to facilitate the implementation of this ordinance. In addition, law enforcement training shall include the technical aspects in making a domestic violence arrest including probable cause, self-defense, mutual arrest, evidence gathering, and report writing.

2. _______ [shelter] shall be responsible for coordinating the training curriculum.

3. Failure to participate in the required training shall result in disciplinary action with a minimum of a written reprimand placed in the personnel file and monitoring to ensure attendance at training.

Section 232. Juveniles.

Any juvenile committing domestic violence as defined in Section 103, shall be subject to prosecution and all other conditions outlined under the Tribal Domestic Violence Code. Any such proceeding shall be closed and any imposition of days shall be served in the Juvenile Detention Center.

Section 233. Ethics; familial relationships of law enforcement, prosecution, and judges to defendant.

All public servants shall be expected to perform their duties and proceed in accordance with this code no matter what the employment, educational, social and political status of the alleged perpetrator and/or victim. Public servants shall be held to the highest professional standards in responding to the crime of domestic violence.

In instances where law enforcement officers respond to a call involving a relative by blood or marriage, the officer shall:

Note the relationship on the case report.

In instances where law enforcement officers have responded to a call involving a relative by blood or marriage, the supervisor reviewing the report shall:

Review the report for accuracy and ensure that appropriate action has been taken.

A law enforcement officer who fails to respond within the appropriate legal parameters when a relative by blood or marriage is suspected of committing the crime of domestic violence shall be subject to disciplinary action as prescribed in the Department of Public Safety, 'Departmental Response to Domestic Violence."

In instances where prosecutors and judges are involved in making decisions when the alleged perpetrator of a domestic violence crime is a relative by blood or marriage, the prosecutor and/or judge shall:

Refrain from prosecuting or hearing a case of the crime of domestic violence in the event the alleged perpetrator and/or victim is a relative by blood or marriage, whenever possible.

In the event that a prosecuting attorney or judge is a relative by blood or marriage and circumstances do not allow withdrawal from prosecuting or hearing the case, the prosecuting attorney and/or judge shall:

Be required to maintain the highest professional standards and shall conduct themselves within the legal parameters of the Domestic Violence Code and Judicial Code of Ethics.

Any perceived improprieties shall be referred to the Attorney General's Office for investigation and possible disciplinary or legal action.

Section 234. Specific Applicability

The section herein applies specifically to this domestic violence code and takes precedence over any general laws of applicability.

CHAPTER 3

CIVIL ORDERS FOR PROTECTION

Section 301. Eligible petitioners for order.

1. A person who is or has been a victim of domestic violence may file a petition for an order for protection against any person who has committed an act of domestic violence as defined in Section 102.

2. A parent, guardian, or other representative may file a petition for an order for protection on behalf of a child or family or household member or former household member on behalf of a child against a family or household or former household member who commits an act of domestic violence.

3. A person who is an employee of an agency or department engaged in conflict with another agency or department shall not be allowed to file for an order of protection against the individual employee or agency s/he is in conflict with. Neither shall an agency or department be allowed to file for an order for protection against another agency or department or against an individual employed by the agency or department.

Section 302. Uniform form required for petitions and orders; required statements in petitions and orders; duty of clerk to provide petitions and clerical assistance; no fee for filing.

1. The Tribal Court system shall:

(a) Develop and adopt uniform forms for petitions and orders, including but not limited to such orders issued pursuant to divorce, custody, protection and other domestic relations hearings; and

(b) Provide the forms to the clerk of court authorized to issue such orders.

2. In addition to any other required information, the petition for an order for protection must contain a statement listing each-civil or criminal action involving both parties.

3. The following statements must be printed in bold faced type or in capital letters on the order for protection:

(a) "Consequences for violation of this order for protection include:

(b) "If so ordered by the court, the respondent is forbidden to enter or stay at the petitioner's residence, even if invited to do so by the petitioner or any other person. In no event is the order for protection voided."

4. The clerk of court or _______ [shelter] personnel shall provide to a person requesting an order for protection:

(a) The form adopted pursuant to subsection 1;

(b) All other forms required for an order for protection, including but not limited to, forms for service and forms required by Uniform Child Custody Jurisdiction Act; and

(c) Clerical assistance in filling out the forms and filing the petition.

5. Except as otherwise provided in section 305, a petition for an order for protection must be in writing, verified, and subscribed to in the manner provided by tribal law.

6. All orders for protection must be issued on the form adopted in accordance with subsection 1.

7. There shall be no filing fees for any civil action when the crime of domestic violence has, at a minimum, been reported to tribal law enforcement.

Section 303. Jurisdiction; venue; residency not required to petition.

1. The Tribal Court has jurisdiction over any petition for orders for protection under this code when the petitioner or respondent is domiciled or found within the boundaries of the Tribe or any act of domestic violence occurred within the boundaries of the Tribe or when the court is being asked to recognize and enforce a valid order of another court of competent jurisdiction. The Court shall construe this section liberally to exercise maximum jurisdiction.

2. All court proceedings in reference to the order for protection shall be carried out where the original order for protection was filed unless the alleged perpetrator can prove such conditions as cited in Section 207. Motions for a change of venue must be filed within five days of service upon the perpetrator. Relationship by blood or marriage are not sole cause for a change of venue. The motion shall be heard by the original court of record.

3. There is no minimum requirement of residency to petition for an order for protection.

Section 304. Continuing duty to inform court of other proceedings; effect of other proceedings; delay of relief prohibited; omission of petitioner's address.

1. At any hearing in a proceeding to obtain an order for protection, each party has a continuing duty to inform the court of each proceeding for an order for protection, any civil litigation, each proceeding in family or juvenile court, and each criminal case involving the parties, including the case name, the file number, and the tribe, county, and/or state, including federal proceedings, if that information is known by the party.

2. An order for protection is in addition to and not in lieu of any other available civil or criminal proceeding. A petitioner is not barred from seeking relief because of the existence of a pending action between the parties.

3. A petitioner may omit her or his address from all documents filed with the court. If a petitioner omits her or his address, the petitioner must provide the court a mailing address or, in the event the petitioner is utilizing advocacy services, the name of an advocate that has the knowledge to be able to contact the petitioner. If disclosure of petitioner's address is necessary to determine jurisdiction or consider venue, the court may order the disclosure to be made:

(a) After receiving the petitioner's consent;

(b) Orally and in chambers, out of the presence of the respondent and a sealed record be made; or

(c) After a hearing, if the court takes into consideration the safety of the petitioner and finds such disclosure is in the interest of justice.

Section 305. Order for protection; modification of orders; relief available ex parte; relief available after hearing; duties of the court; duration of order.

1. If it appears from a petition for an order for protection or a petition to modify an order for protection that domestic violence has occurred or a modification of an order for protection is required, the Tribal court may:

(a) Without notice or hearing, immediately issue an order for protection ex parte or modify an order for protection ex parte as it deems necessary to protect the petitioner.

(b) Upon notice, issue an order for protection or modify an order after a hearing whether or not the respondent appears;

2. A court may grant the following relief without notice and hearing in an order for protection or a modification issued ex parte; the court may grant the following relief in a permanent order for protection or a modification of a permanent order for protection:

(a) Enjoin the respondent from threatening to commit or committing acts of domestic violence against the petitioner and any designated family or household member;

(b) Prohibit the respondent from harassing, annoying, telephoning, contacting, or other communicating with the petitioner directly or indirectly through friends, relatives, or co-workers;

(c) Remove and exclude the respondent from the residence of the petitioner, regardless of ownership of the residence;

(d) Order the respondent to stay away from the residence, school, or place of employment of the petitioner, or any specified place frequented by the petitioner and any designated family or household member;

(e) Seize and prohibit the respondent from using or possessing a firearm or other weapon specified by the court;

(f) Order possession of parties residence and use of or ownership of vehicle and other essential personal effect, regardless of the ownership, and direct the appropriate law enforcement officer to accompany the petitioner to the residence of the parties to ensure that the petitioner is safely restored to possession of the residence, vehicle, and other personal effects, or to supervise the petitioner's or respondent's removal of personal belongings;

(g) Prohibits the destruction, liquidation or disposal of any and all joint assets or property and any and all specific assets or property of the petitioner.

(h) Grant temporary custody of any minor children to the petitioner, and

(i) Order such other relief as it deems necessary to provide for the safety and welfare of the petitioner and any designated family or household member.

3. A court may grant the following relief in an order for protection or a modification of an order after notice and hearing, whether or not the respondent appears:

(a) Grant the relief available in accordance with subsection 2.

(b) Specify arrangements for visitation of any minor child by the respondent and require supervision of that visitation by an independent third party or deny visitation if necessary to protect the safety of the petitioner or child.

(c) In specifying visitation arrangements, the court shall consider the respondent's overall lifestyle, especially as it pertains to alcohol and other chemical use.

(d) Order the respondent to pay attorney's fees.

(e) Order the respondent to:

(1) Pay rent or make payment on a mortgage on the petitioner's residence and pay for the support of the petitioner and minor child if the respondent is found to have a duty to support the petitioner or minor child;

(2) Reimburse the petitioner or other person for any expenses associated with the domestic violence incident, including but not limited to medical expenses, counseling, shelter, and repair or replacement of damaged property- and

(3) Pay any costs and fees incurred by the petitioner in bringing the action;

4. The court shall:

(a) Cause the order to be delivered to Public Safety or other appropriate person or agency for service;

(b) Make reasonable efforts to ensure that the order for protection is understood by the petitioner, and the respondent, if present;

(c) Transmit, by the end of the next business day after the order is issued, a copy of the order for protection to the local law enforcement agency or agencies designated by the petitioner; and

(d) Transmit a copy of the order to the appropriate entity for placement in the tribal registry.

5. An order for protection issued ex parte or upon notice and hearing (protection order) or a modification of an order for protection issued ex parte or upon notice and hearing (permanent order) is effective until further order of the court. If an ex parte order is entered, a hearing shall be scheduled within 14 days to allow the petitioner to respond to the petition. It shall be noted in bold or capital letters on the ex parte order:

THAT RESPONDENT BE ADVISED THAT IF A PERMANENT ORDER FOR PROTECTION IS GRANTED AT A HEARING, THIS EX PARTE ORDER SHALL REMAIN IN EFFECT UNTIL SERVICE IS COMPLETED OF THE PERMANENT ORDER FOR PROTECTION.

THAT RESPONDENT BE ADVISED THAT S/HE FAILS TO APPEAR AT THE BEARING ON A PERMANENT ORDER FOR PROTECTION, THE COURT MAY GRANT THE RELIEF REQUESTED, AND BE FURTHER ADVISED THAT IF A RESPONDENT FAILS TO APPEAR, SUCH FAILURE SHALL NOT BE USED AS A DEFENSE BY THE RESPONDENT OF VIOLATION OF RIGHTS.

6. Public Safety, through the captain of patrol, shall provide expedited service for orders for protection.

Section 306. Required hearings; service; duty of court when order for protection denied.

1. Except as otherwise provided in subsection 2, if a court issues an order for protection ex parte or a modification of an order for protection ex parte and the court provides relief pursuant to subsection 2 of section 305, the court shall set a date for a permanent order for protection hearing regarding the ex parte order for protection within 14 days. If personal service cannot be completed, the court shall notify the respondent by mail, at the last and best known address of the respondent and/or petitioner, of the date and time of the hearing for a permanent order for protection.

2. Upon approval of an ex parte order, the civil clerk of courts shall set a hearing date scheduled for within 14 days and immediately serve the petitioner regardless of the involvement or lack of involvement of an advocate.

3. If applicable, the respondent shall be served upon arraignment. The civil clerk of courts shall be responsible for forwarding a copy of the ex parte order to the jail for service.

4. In the event that service is not successful, the judge shall ask the petitioner, under oath at the hearing for the permanent order for protection, if s/he believes the respondent is avoiding service by concealment or otherwise, does not know his/her whereabouts or current residence. If the petitioner so states, the judge shall direct the civil clerk of courts to set another hearing date within 14 days and to initiate service by mail to the last and best known address of the respondent.

5. At a second hearing for a permanent order for protection and in the event the respondent again does not appear, irregardless of service, the judge shall issue a permanent order for protection if warranted and grant relief as the court deems appropriate.

6. At a second hearing for a permanent order for protection and having made reasonable efforts to contact the respondent, and in the event the petitioner requests or the court provides relief in accordance with paragraph (h) of subsection 2 Section 305, concerning custody of a minor child or the petitioner requests relief pursuant to paragraph (b), (c), or (d) of subsection 3 of Section 305, such a hearing determining the above cited relief must be given precedence over all matters including older matters of the same character and involving the same petitioner and respondent.

7. In a hearing held pursuant to subsection 1 or 2 of this section:

(a) Relief in accordance with Section 305 is available.

(b) If the petitioner seeks further relief concerning an issue not outlined by the ex parte order for protection, the court may grant the relief or continue the hearing or the petitioner may request a continuance.

8. Whether or not the respondent has been arrested or charged with domestic violence, the judge shall order the respondent to participate in the _______ [shelter] domestic violence intervention program. Further, should the court determine that an assault has occurred or the threat of assault has occurred, s/he shall notify the prosecutor. The _______ [shelter] domestic violence intervention program shall be responsible for initiating a civil contempt action should the respondent fail to comply with the program.

9. The Department of Public Safety shall expedite service of permanent orders for protection. If the respondent is not able to be served in person after 30 days, the Department of Public Safety shall notify the civil clerk of courts and the permanent order for protection shall be mailed to the last and best known address of the respondent.

10. Any person against whom a permanent order for protection is granted, and notice was sent to the last and best known address of the respondent, may petition the court to set aside the terms of that order for protection upon a showing by clear and convincing evidence that the respondent did not willingly and knowingly evade service and that there is a meritorious defense to the action. Upon such a showing, the court may grant another ex parte order to protect the petitioner and schedule a hearing within 14 days.

11. If a court denies a petition for an order for protection or a petition to modify an order for protection that is requested without notice to the respondent, the court shall inform the petitioner, in person or by mail, of his or her right to request a hearing upon notice to the respondent. The court must state in the court record why the request was denied.

Section 307. Petitioner cannot violate order for protection.

If a respondent is excluded from the residence of a petitioner or ordered to stay away from the petitioner, an invitation by the petitioner to do so does not waive or nullify an order for protection. Further, the petitioner cannot violate or be arrested for a violation of his or her own order of protection, ex parte or permanent.

Section 308. Denial of relief prohibited.

The court shall not deny a petitioner relief requested pursuant to section 305 or 306 solely because of a lapse of time between an act of domestic violence and the filing of the petition.

Section 309. Mutual orders for protection prohibited.

A court shall not grant a mutual order for protection, ex parte or permanent, to opposing parties.

Section 310. Court-ordered and court-referred mediation of cases involving domestic violence prohibited.

A court shall not order parties into mediation or any type of counseling, alternative justice, restorative justice, peace-making, circle sentencing, traditional Native ceremonies, or any other mediation type of situation that would put the petitioner in the position of dealing directly with the respondent, even if the petitioner has the right to refuse to participate, for resolution of the issues in a petition for an order for protection.

Section 311. Court costs and fees.

Fees for filing and service of process must not be charged for any proceeding seeking only the relief provided in this chapter.

Section 312. Court responsibilities; notification of assistance available to victims of domestic violence.

The court shall inform the victim of domestic violence about local services and advocacy available through _______ [shelter] without regard to the victim's employment, economic, educational, mental or physical health, social, or political status.

Section 313. Enforcement of foreign orders for protection.

1. A copy of an order for protection issued by another tribal, state, county, or other court jurisdiction, shall be given full faith and credit by Tribal law enforcement authorities as having the same force and effect as one issued by the Tribal Court.

2. Law enforcement officers shall attempt to verify the existence and/or validity of any foreign order for protection. In the event that the victim does not have a copy of the order, the officer cannot verify the order or the copy is not clear enough to determine its validity, the officer should arrest the subject on an applicable violation of the Tribal Code and shall assist the victim in obtaining verification of the order and/or explaining the procedure for obtaining an Tribal Order for Protection. The law enforcement officer shall also offer other assistance as provided in Section 204.

3. Valid foreign orders for protection shall be upheld as to the conditions of the order whether or not those remedies or conditions are available through the Tribal Code.

4. In accordance with Section 206, any violations of a foreign order for protection shall be acted upon in the same manner as if the order for protection were issued by the Tribal Court and in accordance with the Violence Against Women Act.

5. Law enforcement and criminal justice system personnel shall enter valid foreign orders for protection in the tribal registry.

6. Law enforcement and criminal justice system personnel shall encourage persons possessing foreign orders for protection to file the foreign order with the tribal registry and initiate comity proceedings with the Tribal Court.

7. Facsimile copies shall be recognized as valid.

Section 314. Tribal registry for orders for protection.

1. The Tribal Court shall maintain a registry of all orders for protection issued by the Tribal Court. The clerk of court shall provide Public Safety dispatch center with certified orders for protection within 24 hours after issuance.

2. The clerk of court shall also provide the dispatch center with any modifications, revoked, withdrawn, and/or expired orders for protection.

3. The information contained in the registry is available at all times to a court, a law enforcement agency, and _______ [shelter].

4. Facsimile copies shall be recognized.

Section 315. Specific Applicability

The section herein applies specifically to this domestic violence code and takes precedence over any general laws of applicability.

CHAPTER 4

FAMILY AND CHILDREN

Section 401. Presumptions concerning custody.

In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic violence has occurred raises a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of domestic violence. It is irrelevant, in determining whether the presumption applies, that the domestic violence occurred in the presence or outside the presence of the child.

Section 402. Factors in determining custody and visitation.

1. In addition to other factors that a court must consider in a proceeding in which the custody of a child or visitation by a parent is at issue and in which the court has made a finding of domestic violence:

(a) The court shall consider as primary the safety and well-being of the child and of the parent who is the victim of domestic violence.

(b) The court shall consider the perpetrator's history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault, to another person.

(c) The court shall also consider the perpetrator's overall lifestyle, including alcohol and other chemical use in determining custody and/or visitation.

2. If a parent is absent or relocates because of an act of domestic violence by the other parent, the absence or relocation is not a factor that weighs against the parent in determining custody or visitation.

Section 403. Presumption concerning residence of child.

In every proceeding where there is at issue a dispute as to the custody of a child, a determination by a court that domestic violence has occurred raises a rebuttable presumption that it is in the best interest of the child to reside with the parent who is not a perpetrator of domestic violence in the location of that parent's choice, within or outside the confines of the the Indian reservation.

Section 404. Change of circumstances.

In every proceeding in which there is at issue the modification of an order for custody or visitation of a child, the finding that domestic violence has occurred since the last custody determination constitutes a finding of a change of circumstances.

Section 405. Conditions of visitation in cases involving domestic violence.

1. A court may award visitation by a parent who committed domestic violence only if the court finds that adequate provision for the safety of the child and the parent who is a victim of domestic violence can be made.

2. In a visitation order, a court may:

(a) Order an exchange of a child to occur in a protected setting.

(b) Order visitation supervised by an independent third person or agency.

(c) Order the perpetrator of domestic violence to attend and complete, to the satisfaction of the court, a program of intervention for perpetrators as a condition of visitation.

(d) Order the perpetrator of domestic violence to attend and complete, to the satisfaction of the court, a program for chemical dependency.

(e) Order the perpetrator of domestic violence to abstain from possession or consumption of alcohol or controlled substances during the visitation and the 24 hours preceding the visitation.

(f) Order the perpetrator of domestic violence to pay a fee to defray the costs of supervised visitation.

(g) Prohibit overnight visitation.

(h) Require a bond from the perpetrator of domestic violence for the return and safety of the child.

(i) Impose any other condition that is deemed necessary to provide for the safety of the child, the victim of domestic violence, or other family or household member.

3. Whether or not visitation is allowed, the court may order the address of the child and the victim to be kept confidential.

4. The court may refer but shall not order an adult who is a victim of domestic violence to attend counseling or seek support services relating to the victim's status or behavior as a victim, individually or with the perpetrator of domestic violence as a condition of receiving custody of a child or as a condition of visitation.

5. Supervised visitation shall be conducted by an independent third party as approved jointly by the court and the victim.

Section 406. Specialized visitation center for victims of domestic violence.

1. _______, shall provide for visitation centers for victims of domestic violence and their children to allow court ordered visitation in a manner that protects the safety of all family members. _______ [shelter] shall coordinate and cooperate with local governmental agencies in providing the visitation centers.

2. A visitation center must provide:

(a) A secure setting and specialized procedures for supervised visitation and the transfer of children for visitation; and

(b) Supervision by a person trained in security and the avoidance of domestic violence.

Section 407. Mediation prohibited in cases involving domestic violence.

The court shall not order parties into mediation or any type of counseling, alternative justice, peace-making, circle sentencing, traditional Native ceremonies or any other mediation type of situation that would put the petitioner in the position of dealing directly with the respondent for resolution of the issues in a petition for custody, even if the petitioner has the right to refuse to participate.

Section 408. Duties of juvenile court.

1. Within 120 days of the enactment of the Domestic Violence Code, the Tribal Juvenile Court shall develop written procedures when abuse or neglect of a child is involved to assess whether abuse of another family or household member is also occurring. The assessment must include but is not limited to:

(a) Inquiry concerning the criminal record of the parents, and the alleged abusive or neglectful person and the alleged perpetrator of domestic violence, if not a parent of the child; and

(b) Inquiry concerning the existence of orders for protection issued to either parent.

2. The Tribal Juvenile Court shall utilize the State Department of Social Services, any relevant tribal children's social and/or protective services and/or _______ [shelter] in conducting the assessment.

3. If it is determined in an investigation of abuse or neglect of a child:

(a) That the child or another family or household member is in danger of domestic violence and that removal of one of the parties is necessary to prevent the abuse or neglect of a child, the Tribal Juvenile Court shall seek the removal of the alleged perpetrator of domestic violence whenever possible.

(b) That if a parent of the child is a victim of domestic violence, services must be offered to the victimized parent and the provision of such services must not be contingent upon a finding that either parent is at fault or has failed to protect the child.

Section 409. Specific Applicability

The section herein applies specifically to this domestic violence code and takes precedence over any general laws of applicability.

CHAPTER 5

PREVENTION AND INTERVENTION

Section 501. Public health plan for reducing domestic violence.

1. The Tribal Health and Human Services Committee shall:

(a) Assess the impact of domestic violence on the public's health;

(b) Write a public health plan for reducing the incidence of domestic violence within the tribal community;

2. The public health plan:

(a) Must include but is not limited to public education, including use of the various communication media to set forth the public health perspective on domestic violence.

(b) Must be developed in consolation with public and private agencies that provide programs for victims of domestic violence, advocates for victims, and persons who have demonstrated expertise and experience in providing health care to victims of domestic violence and their children.

(c) Must be completed within 120 days of the enactment of the Domestic Violence Code.

3. The Health and Human Services Committee shall:

(a) Transmit a copy of the public health plan to the Tribal Council; and

(b) Annually review and update the plan.

Section 502. Standards for health care facilities, practitioners, and personnel; specialized procedure and curricula concerning domestic violence.

1. Within 120 days of the enactment of the Domestic Violence Code, the Indian Health Service shall promulgate standards for health care facilities, practitioners, and personnel in the facilities including specialized procedure and curricula concerning domestic violence.

2. The procedures and curricula must be developed in consultation with public and private agencies that provide programs for victims of domestic violence, advocates for victims, and persons who have demonstrated expertise and experience in providing health care to victims of domestic violence and their children.

Section 503. Notice of rights of victims and remedies and services available; required information.

1. The Indian Health Service and any other health care facility shall make available to practitioners and health care facilities a written notice of the rights of victims and remedies and services available to victims of domestic violence in accordance with subsection 3.

2. A practitioner who becomes aware that a patient is a victim of domestic violence shall provide to the patient and every health care facility shall make available to all patients the notice provided pursuant to subsection.

3. The notice to victims of domestic violence must be substantially as follows:

"If you are a victim of domestic violence and you believe that law enforcement protection is needed for your physical safety, you have the right to request that an officer assist in providing for your safety, including asking for an emergency order for protection. You may also request that the officer assist you in obtaining your essential personal effects and locating and taking you to a safe place including but not limited to a shelter, family member's or a friend's residence, or a similar place of safety. If you are in need of medical treatment, you have the right to request that the officer assist you in obtaining medical treatment. You may request a copy of the report at no cost from the law enforcement department.

You may ask the prosecutor to file a criminal complaint. You also have the right to file a petition in the Tribal Court requesting an order for protection from domestic violence which could include any of the following orders:

(a) An order enjoining your abuser from threatening to commit or committing further acts of domestic violence;

(b) An order prohibiting your abuser from harassing, annoying, telephoning, contacting or otherwise communicating with you, directly or indirectly;

(c) An order removing your abuser from your residence, regardless of ownership of the residence;

(d) An order directing your abuser to stay away from your residence, school, place of employment, or any other specified place frequented by you and another family or household member;

(e) An order prohibiting your abuser from using or possessing any firearm or other weapon specified by the court;

(f) An order granting your possession and use of the automobile and other essential personal effects, regardless of ownership;

(g) An order granting you custody of your child or children;

(h) An order denying your abuser visitation;

(i) An order specifying arrangements for visitation, including requiring supervised visitation; and

(j) An order requiring your abuser to pay certain costs and fees, such as rent or mortgage payments, child support payments, medical expenses, expenses for shelter, court costs, and attorney's fees.

The forms you need to obtain and order for protection are available from The resources available in the community for information relating to domestic violence, treatment of injuries, and places of safety and shelters are: You also have the right to seek reimbursement for losses suffered as a result of the abuse, including medical and moving expenses, loss of earnings or support, and other expenses for injuries sustained and damage to your property. This can be done without an attorney in small claims court if the total amount claimed is less than

4. The written notice:

(a) Must not include the addresses of shelters, unless the location is public knowledge.

(b) Must be provided in the native language of the victim, if practicable, when the first language of the victim is not English.

Section 504. Hospital required to provide certain information to parents.

Hospitals shall provide information concerning domestic violence to parents of newborn infants and to parents of hospitalized minors. The information must include but is not limited to the effect of domestic violence on children and available services for the prevention and intervention services available.

Section 505. Regulation of programs for intervention for perpetrators; required provisions; duties of providers.

1. Within 120 days of the enactment of the Domestic Violence Code, _______ [shelter] shall promulgate rules or regulations for programs of intervention for perpetrators of domestic violence. The rules or regulations must be promulgated after consultation with public and private agencies that provide programs for victims of domestic violence and programs of intervention for perpetrators, with advocates for victims, and with persons who have demonstrated expertise and experience in providing services to victims and perpetrators of domestic violence and their children.

2. The rules or regulations must include:

(a) Standards of treatment for programs of intervention;

(b) Criteria concerning a perpetrator's appropriateness for the program;

(c) Systems of communication and evaluation among the referring court, the public and private agencies that provide programs for victims of domestic violence and the programs of intervention for perpetrators; and

(d) Required education and qualifications of providers of intervention.

3. The standards must include but are not limited to the following principles:

(a) The focus of the program must be stopping the acts of violence and ensuring the safety of the victim and children or other family or household members.

(b) Recognition that violence is a behavior for which the perpetrator must be held accountable.

(c) Recognition that substance abuse is a problem separate from domestic violence which requires specialized treatment.

4. Providers of programs of intervention for perpetrators:

(a) Shall require a perpetrator who is ordered into the program by a court to sign the following releases:

(1) Allowing the provider to inform the victim and victim's advocates that the perpetrator is in treatment wit the provider, and to provide information of safety to the victim and victim's advocates;

(2) Allowing prior and current treating agencies to provide information about the perpetrator to the provider; and

(3) Allowing the provider to provide information about the perpetrator to relevant legal entities, including courts, probation officers, parole officers, and children's protective services.

(b) Shall report to the court and the victim any assault, failure to comply with the program, failure to attend the program, and threat of harm by the perpetrator.

Section 506. Continuing education for law enforcement officers concerning domestic violence; content of course.

1. The Department of Public Safety, Training Center must provide forty (40) hours of initial education to all prospective, newly hired, or law enforcement officers who have not had the required training concerning domestic violence.

2. The Department of Public Safety, Training Center shall provide eight (8) hours a year of continuing education concerning domestic violence to law enforcement officers each year.

3. The course of instruction and the objectives in learning and performance of the education of law enforcement officers required pursuant to subsections 1 and 2 must be developed and presented in consultation with public and private providers of programs of victims of domestic violence and programs of intervention for perpetrators, persons who have demonstrated expertise in training and education concerning domestic violence, as it relates to Native culture and the implementation of a coordinated systems and community response to enhance the safety and respect for Native women and families on the Indian reservation.

4. The course of instruction must include but is not limited to:

(a) The investigation and management of cases involving domestic violence and writing of reports in such cases;

(b) The nature, extent, and causes of domestic violence;

(c) Practices designed to promote the safety of the victims of domestic violence and other family and household members, including safety plans;

(e) The legal rights and remedies available to victims of domestic violence including but not limited to rights and compensations of victims of crime and enforcement of civil and criminal remedies;

(f) The services available to victims of domestic violence and their children;

(g) Sensitivity to cultural, racial, and sex" issues and the effect of cultural, racial and gender bias on the response of law enforcement officers and the enforcement of laws relating to domestic violence; and

(h) The provisions of the Tribal code and any other laws and statutes applicable.

Section 507. Continuing education of judges and court personnel; prosecutors; content of course.

1. _______ [shelter] shall develop and present courses of continuing education concerning domestic violence for judicial officers, prosecutors, and other court personnel.

2. The courses must be prepared and presented in consultation with public and private agencies that provide programs for victims of domestic violence and programs of intervention for perpetrators, and advocates for victims.

3. Each judicial officer and each court employee who comes into contact with either party in domestic violence cases must have sixteen (16) hours of initial education in domestic violence and eight (8) hours annually.

4. The courses must include but are not limited to the following topics:

(a) The nature, extent, and causes of domestic violence;

(b) Practices designed to promote safety of the victim and other family and household members, including safety plans;

(c) Resources available for victims and perpetrators of domestic violence;

(d) Sensitivity to gender bias and cultural, racial, and sexual issues; and

(e) The lethality of domestic violence.

Section 508. Continuing education for tribal employees who work with domestic violence cases and are required to report abuse and neglect of children.

The Tribal Health and Human Services Committee shall provide courses of continuing education concerning domestic violence for tribal employees:

(a) Who work with cases of domestic violence; and

(b) Who are required by law to report abuse or neglect of children.

2. The courses must be prepared and presented in consultation with public and private agencies that provide programs for victims of domestic violence and programs of intervention for perpetrators, and advocates for victims.

3. The courses must include but are not limited to the following topics:

(a) The nature, extent, and causes of domestic violence;

(b) Practices designed to promote safety of the victim and other family and household members, including safety plans;

(c) Resources available for victims an perpetrators of domestic violence;

(d) Sensitivity to gender bias and cultural, racial, and sexual issues; and

(e) The lethality of domestic violence.

4. As used in this section, tribal employees working with cases of domestic violence include:

(a) Probation officers;

(b) Workers in children's protective services;

(c) Psychologists;

(d) Social workers;

(e) Advocates;

(f) CHR;

(g) Ambulance Service;

(h) Chemical Dependency personnel;

(i) EAP;

(j) Civil Rights Office.

Section 509. Continuing education for attorneys.

1. In order to be licensed to practice in any Tribal court, attorneys or legal advocates must participate in sixteen (16) of continuing legal education in domestic violence for attorneys. The Attorney General shall provide courses of continuing legal education in domestic violence for tribally licensed attorneys or attorneys applying for a Tribal attorney license.

2. The courses must be prepared and presented in consultation with persons who have demonstrated expertise and experience in providing legal assistance to victims and perpetrators of domestic violence, and advocates for victims.

3. The courses must include but are not limited to the following topics:

(a) The nature, extent, and causes of domestic violence;

(b) Practices designed to promote the safety of the victim and other family and household members, including safety plans;

(c) Resources available for victims and perpetrators of domestic violence-,

(e) Sensitivity to gender bias and cultural, racial, and sexual issues; and

(f) The lethality of domestic violence; and

(g) The Tribal domestic violence code and any other applicable laws and statutes.

Section 510. Required curricula for Indian reservation education system.

1. The Tribal Education Committee shall select or develop within one year:

(a) Curricula for pupils concerning domestic violence that are appropriate for various ages; and

(b) Curricula for school counselors, health-care personnel, administrators, and teachers concerning domestic violence.

2. The curricula must be selected or developed in consultation with public and private agencies that provide programs for victims of domestic violence and programs of intervention for perpetrators of domestic violence, advocates for victims, and persons who have demonstrated expertise and experience in education and domestic violence.

3. The curricula must include but are not limited to:

(a) The nature, extent, and causes of domestic violence;

(b) Issues of domestic violence concerning children;

(c) The prevention of the use of violence by children;

(d) Sensitivity to gender bias and cultural, racial, and sexual issues;

(e) Violence in dating and other social relationships of boys and girls; and

(f) Practices designed to promote safety of the victim and other family and household members, including safety plans.

(g) The Tribal domestic violence code and any other applicable laws and statutes.

Section 511. Continuing education for school personnel who are required to report abuse and neglect of children.

1. The Tribal Education Committee shall provide courses of continuing education concerning domestic violence for employees who are required by law to report abuse or neglect of children.

2. The courses must be prepared and presented in consultation with public and private agencies that provide programs for victims of domestic violence, persons who have demonstrated expertise in education and domestic violence and advocates for victims.

3. The courses must include but are not limited to the following topics:

(a) The nature, extent, and causes of domestic violence;

(b) Practices designed to promote safety of the victim and other family and household members, including safety plans;

(c) Issues of domestic violence concerning children;

(d) Sensitivity to gender bias and cultural, racial, and sexual issues; and

(e) The lethality of domestic violence.

Section 512. Specific Applicability

The section herein applies specifically to this domestic violence code and takes precedence over any general laws of applicability.

CHAPTER 6

STALKING

Section 601. The stalking provision of the Tribal Domestic Violence Code is construed to promote the following:

That the active stalking of women and family members is a basic and often primary activity used by domestic violence offenders to establish, or re-establish control over domestic violence victims. Through the pursuit or following of the victim by the perpetrator, the risk to the victim of being physically assaulted by the stalker is greatly increased. The goal of this section is in keeping with the overall purpose of the Tribal Code is to provide safety and protection to victims, potential victims, and to set standards of behavior within the family that are consistent with traditional Native values.

Section 602. Definitions

Unless the context otherwise requires, as used in the Tribal Code:

1. "Credible threat'' means a verbal or written threat, or 'a threat implied by a pattern of conduct, or combination of such verbal/written statements and conduct, either directly or through a third party, made with the intent to place the person who is the target of the threat in reasonable fear of his/her safety. The main standard for establishing a credible threat is the victim's perception of a threat to his/her safety. The second criteria will be the apparent ability of the defendant to carry out the threat, whether verbal, written, or implied through a willful pattern of conduct. The third standard is the ability to identify and relate a pattern of corroborated stalking behavior.

2. "Harass" means a knowing and willful pattern of conduct directed at a specific person, either directly or through a third party, which seriously alarms, annoys, torments, or terrorizes the person, and which serves no legitimate purpose. Harassing behavior can include but is not limited to:

(a) Vandalism;

(b) Annoying or threatening telephone calls;

(c) Following or other violations of an order for protection;

(d) Actual Assaults;

(e) Sending unwanted letters;

(f) Sending unwanted messages or threats through third parties;

(g) Showing up at a victim's home or workplace;

(h) Attempting to obtain private information about the victim through others;

(i) Leaving gifts for the victim;

(j) Disabling or otherwise tampering with the victim's vehicle;

(k) Taking mail from the victim's mailbox;

(1) Entering the victim's home or place of residence whether the victim is there or not there;

(m) Parking near or driving by the victim's residence or workplace for no legitimate reason;

(n) And, using agencies or institutions that constitutes a pattern of conduct consistent with retaliation by initiating investigations, restrictions or sanctions against the victim.

3. "Pattern of conduct" means conduct which has caused the victim to suffer substantial emotional distress or fear. This course of conduct should contain a series of acts carried out by the defendant over a period of time, however short, which demonstrates a continuity of purpose (i.e., to annoy, harass, follow, etc.), and which would cause a reasonable person to suffer like emotional distress or fear.

4. "Family" means any spouse, parent, child, stepparent, stepchild, grandparent, grandchild, or significant other person or relative with whom the victim has a familial relationship, or who resides with the victim or any other relationship as defined in Tribal Domestic Violence Code, Section 102.2.

5. "Corroborating stalking conduct" means any evidence of harassing behavior, physical evidence at the scene, records, documents, letters, unsubstantiated alibis, recorded messages, police reports, prior stalking convictions, witness information, or any other information, which would indicate a willful pattern of conduct or threat.

Section 603. Stalking; Offense defined and penalties

1. Any person who, either directly or through a third party, willfully, maliciously and repeatedly follows or harasses another person, and who makes a credible threat with the intent to place that person in reasonable fear of his/her safety, or the immediate safety of his/her family, shall be deemed guilty of stalking under this section and code. A person who makes a judicial admission of, pleads guilty to, or is found guilty of stalking shall be subject to a penalty of not less than thirty (30) and not more than sixty (60) days in jail, a fine not to exceed $500. or both such fine and imprisonment.

2. Whoever makes a judicial admission of, pleads guilty to, or is found guilty of a second or subsequent offense, within five (5) years of the first offense, shall be subject to a penalty of not less than ninety (90) days in jail, a fine not to exceed $500 or both fine and imprisonment.

3. A judicial admission, guilty plea, or conviction of a second or subsequent stalking offense, involving a credible threat to the same person, or in violation of a valid Order for Protection, shall be sentenced to a term of not less than six (6) months in jail, a fine not to exceed $ 1,000 or both such fine and imprisonment.

4. In addition to the penalties stated in 1-3 above, any person making a judicial admission, pleads guilty or being found guilty of a violation of this section, will be required to attend and complete domestic violence classes, as conducted by _______ [shelter].

Section 604. Location of stalking perpetrator not bar to prosecution

The location of the threatening action by the perpetrator, either directly or through a third party, as corroborated through telephone records, postmarks, or order/delivery records, and/or witnesses as being outside the boundaries of the Indian reservation, will not bar prosecution under this section. The act is considered to be a credible threat when full transmittal of the threat has been completed to the victim, when said victim is within the boundaries of the Indian reservation.

2. Corroborated initial or intervening acts, used to establish a pattern of conduct for the purpose of probable cause under this section, but which occurred outside the boundaries of the Indian reservation, may be used to establish and corroborate said pattern for prosecution of a violation under this section. However, initial or intervening acts occurring outside the boundaries of Indian reservation are not prosecutable as separate offenses under this section.

3. The present incarceration of the person making the threat shall not bar prosecution under this section.

Section 605. Specific Applicability

The section herein applies specifically to this domestic violence code and takes precedence over any general laws of applicability.

CHAPTER 7

FIREARMS DISQUALIFICATION

Section 701. Purpose.

It shall be the purpose of this section to prohibit any person who have been convicted of a felony or misdemeanor offense of domestic violence/abuse, as defined under Section 103 of this Domestic Violence Code, under tribal, state or federal law, or any person who is subject to an order of protection based upon a finding that the person represents a credible threat of violence to the victim, under tribal, state or federal law, to possess a firearm.

Section 702. It shall be unlawful for any person to possess a firearm who:

1. Is subject to any court order from a court of competent jurisdiction that restrains such person from harassing, stalking or threatening a family or household member as defined in Section 103.2 or engaging in any other conduct that would place a family or household member in reasonable fear of bodily injury to the household or family member, except that this paragraph shall apply only to those orders that:

a. Were issued after a hearing of which such person received actual notice and had the opportunity to participate; and,

b. Includes a finding that such person represents a credible threat to the physical safety of such household or family member; or

c. By its terms explicitly prohibits the use, attempted use or threatened use of physical force against such household or family member.

2. Has been convicted in state, federal or tribal court of any crime involving domestic violence/abuse, as defined in Section 103 of this code, which involved the use or attempted use of physical force, or the threatened use of physical force, or the threatened use of a deadly weapon against a household or family member as defined at Section 103.2.

Section 703. Violation of this Chapter is a Class Misdemeanor and shall result in a maximum sentence. Any related domestic violence sentences for a violation of this section and any other section of the Tribal Domestic Violence Code shall be served consecutively.

CHAPTER 8

DOMESTIC VIOLENCE ADVOCATES AND SHELTERS

Section 801. Protection for Advocates.

The Tribe recognizes that advocating for those who have been the victims of domestic violence can be a dangerous situation for the advocate because of the potential for violence on the part of the perpetrator. This Chapter makes it a crime for any person to harass, annoy or intimidate an advocate for a domestic violence victim with the intent to interfere with the rights of the victim of domestic violence to pursue any civil or criminal remedies she may have in a court of law. It also provides for an enhanced penalty for any person committing a crime of violence against an advocate because of her advocacy for a victim of domestic violence.

Section 802. Harassment of Domestic Violence Advocates

It shall be a Class ____ Misdemeanor for any person to commit any of the following acts with the intent to interfere with the right of any victim of domestic violence to obtain a civil protection order or pursue any criminal complaint against a perpetrator of domestic violence:

1. To make any written or verbal threats to an advocate for a victim of domestic violence with the intent to interfere with the right of any victim of domestic violence to obtain a civil protection order or pursue criminal charges against a perpetrator of domestic violence;

2. To make any written or verbal threats that place an advocate in apprehension of bodily injury because of that advocate’s representation of a domestic violence victim;

Section 803. Enhanced Penalty For Crime of Violence Against Domestic Violence Advocate

Any person convicted of a crime of violence under sections _______ of the Tribal Code against an advocate against domestic violence and the Tribe demonstrates that said crime was committed because of the victim’s advocacy on behalf of domestic violence victims shall in addition to any other penalty provided by tribal law be sentenced to an additional __________ days in the Tribal jail and ordered to pay a special assessment to the Domestic Violence Advocacy program in the amount of $500.00. This enhanced penalty shall not be subject to suspension by the Court.

CHAPTER 9

DOMESTIC VIOLENCE LEAVE ACT

Section 901. Purpose.

Victims of Domestic Violence are oftentimes forced to flee from a perpetrator in order to avoid future danger and violence. In so fleeing victims who are employed frequently miss days of employment and employers respond by terminating or disciplining such employees. It is the purpose of this chapter to preclude all reservation employers from terminating any employee who can document an instance of domestic abuse which contributed to her absence from employment. Employers have the option of granting such employees leave with pay or leave without pay because of domestic violence related absences.

Section 902. Discharges for Absence of Employment Due to Domestic Violence Prohibited.

It shall be a violation of this ordinance for any employer located within the exterior boundaries of the Indian reservation to terminate or otherwise discipline any employee who has missed work or is tardy to work when such employee demonstrates, either through the filing of criminal or civil proceedings in a court of law or by such other method satisfactory to the employer, that she has been the victim of domestic violence and that such violence contributed to her absence(s) from work or tardiness to work. In lieu of disciplinary action, the employer shall grant the employee leave with or without pay, dependent upon the policies of the employer, for such absences.

Section 903. Penalty for Violation.

Any employer who willfully violates this section shall be subject to a civil penalty of $500.00 payable to the Tribe in addition to any other remedies the wrongfully discharged employee may have against the employer. Nothing in this section shall preclude a private party from commencing a wrongful termination action against an employer for violation of this section.

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