A.
The purpose of this article is to ensure compliance with the full
faith and credit provision of the Violence Against Women Act of 1994
(VAWA) as set forth in 18 U.S.C. § 2265, as it may be amended
from time to time, and to ensure that victims of domestic violence
are able to move across state and Tribal boundaries without losing
the ability to enforce protection orders they have previously obtained
to increase their safety.
B.
A harassment protection order or a sexual assault protection order
issued by the NHBP Tribal Court will be enforceable throughout the
State of Michigan pursuant to MCR 2.615.
C.
To ensure that harassment and sexual assault protection orders issued
by the NHBP Tribal Court are enforced outside of the boundaries of
the Reservation, harassment and sexual assault protection orders issued
in the courts of the State of Michigan, or a Tribal Court within the
State of Michigan, will be enforced within the boundaries of the Reservation
pursuant to NHBPCR Chapter 8, Court Rules for Recognition and Enforcement
of Foreign Court Actions, Warrants, and Subpoenas.
D.
Notice of reciprocal enforcement pursuant to this section shall be
printed on all harassment and sexual assault protection orders issued
by the Court.
The NHBP Tribal Court has enacted Court Rules for the recognition
of foreign court judgments. NHBP Tribal Court Rules, Chapter 8, Court
Rules for the Recognition and Enforcement of Foreign Court Actions,
Warrants and Subpoenas, provides for the recognition of these foreign
court actions and the procedures for filing. Registration, notice
of registration, and objections to the filing of a foreign court action
are provided for in Chapter 8.
A.
The Clerk of the Court shall forward a copy of a foreign protection
order that is filed under this article on or before the next calendar
day to the NHBP Police Department and County Sheriff along with the
completed information form. The Clerk may forward the foreign protection
order to the County Sheriff by facsimile or electronic transmission.
Upon receipt of the filed foreign protection order, the NHBP Police
Department shall immediately enter the foreign protection order into
any computer-based criminal intelligence information system available,
listing outstanding warrants. The foreign protection order must remain
in the computer for the period stated in the order. The NHBP Police
Department shall only expunge from the computer-based criminal intelligence
information system foreign protection orders that are expired, vacated,
or superseded. Entry into the computer-based intelligence information
system constitutes notice to all law enforcement agencies of the existence
of the foreign protection order. The foreign protection order is fully
enforceable in any county in the state.
B.
The information entered into other computer-based criminal intelligence
information systems must include, if available, notice to law enforcement
whether the foreign protection order was served and the method of
service.
A.
Whenever a foreign protection order is granted to a person entitled
to protection and the person under restraint knows of the foreign
protection order, a violation of a provision prohibiting the person
under restraint from contacting or communicating with another person,
or of a provision excluding the person from a residence, workplace,
school, or daycare, or of a provision prohibiting a person from knowingly
coming within, or knowingly remaining within, a specified distance
of a location, or a violation of any provision for which a foreign
protection order specifically indicates that a violation will be a
crime, shall subject the person to the same penalties as if the order
were issued by the NHBP Tribal Court.
B.
Upon conviction, and in addition to any other penalties provided
by law, the Court may require the person under restraint to submit
to electronic monitoring [global positioning system (GPS) or similar].
The Court shall specify who will provide the electronic monitoring
services, and the terms under which the monitoring will be performed.
The order also may include a requirement that the person under restraint
pay the costs of the monitoring. The Court shall consider the ability
of the convicted person to pay for electronic monitoring.
C.
A peace officer shall arrest without a warrant and take into custody
a person when the peace officer has probable cause to believe that
a foreign protection order has been issued of which the person under
restraint has knowledge, and the person under restraint has violated
a provision of the foreign protection order for which the foreign
protection order specifically indicates that a violation will be a
crime. Presence of the order in the law enforcement computer-based
criminal intelligence information system is not the only means of
establishing knowledge of the order.
No police officer, peace officer, or officer's legal advisor
shall be held criminally or civilly liable for making an arrest under
this article if the police officer, peace officer, or the officer's
legal advisor acted in good faith and without malice.
The NHBP finds that the prevention of harassment is important
to the health, safety and general welfare of the tribal community.
This article is intended to provide victims with a speedy and inexpensive
method of obtaining civil harassment protection orders preventing
all further unwanted contact between the victim and the perpetrator.
For the purpose of this section, "harassment protection order"
means a Court order restricting a person from harassing, threatening,
contacting, or approaching another specified person for a period of
time.
This section provides for petitions for protection orders for
cases of harassment. The requirements for obtaining such an order
are as follows:
A.
A petition to obtain a harassment protection order under this article
may be filed by any person claiming to be the victim of harassment
or made by a parent or guardian if the child is a ward of the Court,
on behalf of the child.
(1)
A petition for relief may be made regardless of whether or not there
is a pending lawsuit, criminal complaint, petition, or other action
between the parties, except that a parent may not petition for a harassment
protection order on behalf of his or her child against the child's
other parent. The petitioner and respondent shall disclose the existence
of any other litigation or of any other restraining, protection, or
no-contact orders between the parties.
A.
A petition for relief shall allege the existence of harassment and
shall be accompanied by a statement made under penalty of perjury
stating the specific facts and circumstances from which relief is
sought.
B.
The Court shall make simplified petition forms and instructional
brochures available. Any information provided by clerks under this
section does not constitute the practice of law, and clerks are not
responsible for incorrect information contained in a petition.[1]
C.
No bond is required to obtain relief in any proceeding under this
section.
D.
The parent or guardian of a child under age 18 may petition for a
harassment protection order to restrain a person age 18 years or over
from contact with that child upon a showing that contact with the
person to be restrained is detrimental to the welfare of the child.
A.
Upon filing a petition for a harassment protection order under this
article, the petitioner may obtain an ex parte temporary harassment
protection order with or without serving notice upon the respondent
by filing a statement made under penalty of perjury which, to the
satisfaction of the Court, shows evidence of harassment of the petitioner
by the respondent, and that continued harassment may result if the
temporary harassment protection order is not granted.
B.
An ex parte temporary harassment protection order shall be effective
for a fixed period not to exceed fourteen (14) days. A full hearing,
as provided in this article, shall be set for not later than fourteen
(14) days from the issuance of the temporary order. The respondent
shall be personally served with a copy of the ex parte temporary harassment
protection order along with a copy of the petition and notice of the
date set for the hearing. If service is not possible, the Court may
authorize service according to NHBPCR Chapter 5, Court Rules of Civil
Procedure, Section 5, Service of Process, or its successor rule.
C.
For the purpose of this article, "temporary harassment protection
order" means a Court order restricting a person from harassing, threatening,
contacting, or approaching another specified person.
A.
At the hearing within fourteen (14) calendar days after the granting
of the ex parte harassment protection order, a permanent order shall
be issued prohibiting such harassment if the Court finds by a preponderance
of the evidence that harassment exists or has occurred. Otherwise,
the temporary harassment protection order shall expire on its own
terms. If the respondent does not appear, the petitioner must demonstrate
that he or she effected proper service, and a default judgment will
be entered.
B.
An order issued under this article shall be effective for not more
than one (1) year unless the Court finds that any future contact with
the petitioner would result in the harm from which the petitioner
originally sought protection. If the Court so finds, the Court may
enter an order to a fixed time exceeding one (1) year.
C.
In the event that a respondent fails to appear for a hearing and
the petitioner cannot demonstrate service upon him or her, the Court
may grant a second ex parte temporary harassment protection order
to the same petitioner enjoining the same respondent and order alternate
service according to NHBPCR Chapter 5, Court Rules of Civil Procedure,
or its successor rule. If a police officer investigates an alleged
violation of an order issued pursuant to this article and service
has not been effected prior to contact, the officer shall provide
service as described herein and within the next calendar day the Court
is open file proof of service with the Court.
D.
At any time within three (3) months prior to the expiration of the
order, the petitioner may apply for a renewal of the order by filing
a motion for renewal with the Court. The motion for renewal shall
state the reasons why he or she seeks to renew the order. Upon receipt
of the motion for renewal, the Court shall order a hearing which shall
be held within fourteen (14) days from the date of motion. The Court
shall grant the motion for renewal unless the respondent proves by
preponderance of evidence that he will not resume harassment of the
petitioner when the order expires. The Court may renew the harassment
protection order for another fixed period or may enter a permanent
order.
E.
The Court, in granting a harassment protection order, shall have
broad discretion to grant such relief as the Court deems proper, including
but not limited to:
(1)
Restraining the respondent from making attempts to contact the petitioner
and all persons listed in the petition.
(2)
Restraining the respondent from making any attempts to monitor the
petitioner by actual or electronic surveillance.
(3)
Requiring the respondent to stay a specified minimum distance from
the petitioner's residence, workplace, and/or school.
A.
A copy of a harassment protection order granted under this article
shall be forwarded by the Clerk of the Court on or before the next
calendar day to the NHBP Police Department or appropriate law enforcement
agency. Upon receipt of the order, the Police Department shall enter
the order into the computer-based criminal intelligence information
system currently in use by the Department to list outstanding warrants.
The Police Department shall expunge expired orders from the computer
system. Entry into the information system constitutes notice to the
Police Department of the existence of the order.
B.
If an officer investigates an alleged violation of an order issued
pursuant to this article and service has not been effected prior to
contact, the officer shall provide service as described herein and
within the next day file proof of service with the Court. Law enforcement
shall update the criminal information system to reflect that service
has been effected.
A.
Knowing violation of any harassment protection order subjects the
respondent to criminal penalties under this article.
B.
Any respondent who is found guilty of violating the terms of the
harassment protection order may also, subject to the Court's
discretion, be held in civil contempt of court, and the Court may
impose such sanctions as it deems appropriate.
C.
Violation of a harassment protection order is a Class B misdemeanor.
D.
A second or subsequent violation of a harassment protection order
is a Class A misdemeanor.
The NHBP finds that there are times when a victim of a sexual
assault or unwanted sexual contact is neither an intimate partner
nor family member, thus does not qualify for the protections from
these types of orders. Nevertheless, the victim deserves all the protections
afforded within this chapter because the alleged sexual assault or
unwanted sexual contact is such a heinous incident that goes to the
heart of the health, safety and general welfare of the NHBP Tribal
Community; therefore, a protection order provided under this article
is to protect those that have been sexually assaulted.
A petition for a sexual assault protection order may be filed
by a person:
A.
Who does not qualify for a domestic violence or family violence protection
order and who is a victim of nonconsensual sexual conduct or nonconsensual
sexual penetration, including a single incident of nonconsensual sexual
conduct or nonconsensual sexual penetration; or
B.
On behalf of any of the following persons who are victims of nonconsensual
sexual conduct or nonconsensual sexual penetration and who do not
qualify for a domestic violence or family violence protection order:
This section provides for petitions for a sexual assault protection
order.
A.
A petition for relief shall allege the existence of nonconsensual
sexual conduct or nonconsensual sexual penetration, and shall be accompanied
by an affidavit made under oath stating the specific statements or
actions made at the same time of the sexual assault or subsequently
thereafter which give rise to a reasonable fear of future dangerous
acts for which relief is sought. The petitioner and respondent shall
disclose the existence of any other litigation or of any other restraining,
protection, or no-contact orders between the parties.
B.
A petition for relief may be made regardless of whether or not there
is a pending lawsuit, criminal complaint, petition, or other action
between the parties.
C.
Forms and instructional brochures and the necessary number of certified
copies shall be provided to the petitioner free of charge.
D.
A person is not required to post a bond to obtain relief in any proceeding
under this section.
E.
If the petition states that disclosure of the petitioner's address
would risk abuse of the petitioner or any member of the petitioner's
family or household, that address may be omitted from all documents
filed with the Court. If the petitioner has not disclosed an address
under this subsection, the petitioner shall designate an alternative
address at which the respondent may serve notice of any motions.
A.
An ex parte temporary sexual assault protection order shall issue
if the petitioner, to the satisfaction of the Court, shows evidence
that:
(1)
The petitioner has been a victim of nonconsensual sexual conduct
or nonconsensual sexual penetration by the respondent; and
(2)
There is good cause to grant the remedy, regardless of the lack of
prior service of process or of notice upon the respondent, because
the harm which that remedy is intended to prevent would be likely
to occur if the respondent were given any prior notice, or greater
notice than was actually given, of the petitioner's efforts to
obtain judicial relief.
B.
If the Court declines to issue an ex parte temporary sexual assault
protection order, the Court shall state the particular reasons for
the Court's denial and set a hearing on the petition. The Court's
denial of a motion for an ex parte temporary protection order shall
be filed with the Court.
C.
An ex parte temporary sexual assault protection order shall be effective
for a fixed period not to exceed fourteen (14) days. A full hearing,
as provided in this article, shall be set for not later than fourteen
(14) days from the issuance of the temporary order. The respondent
shall be personally served with a copy of the ex parte temporary sexual
assault protection order along with a copy of the petition and notice
of the date set for the hearing. If service is not possible, the Court
may authorize service according to NHBPCR Chapter 5, Court Rules of
Civil Procedure, or its successor code.
(1)
Any ex parte temporary sexual assault protection order issued under
this section shall contain the date and time of issuance and the expiration
date and shall be transmitted to the clerk of the court of the county
in which the petitioner resides and to the NHBP Police Department
within one (1) calendar day after issuance.
D.
Any ex parte temporary or final sexual assault protection order may
be renewed one or more times, as necessary for victim safety. The
petitioner may apply for renewal of the order by filing a petition
for renewal at any time within the three (3) months before the order
expires. If the motion for renewal is uncontested and the petitioner
seeks no modification of the order, the order may be renewed on the
basis of the petitioner's motion or affidavit stating that there
has been no material change in relevant circumstances since entry
of the order and stating the reason for the requested renewal.
E.
A violation of a Court order issued under this section is punishable
under the laws of the NHBP and will subject the perpetrator to arrest.
The Court may appoint counsel to represent the petitioner.
A.
Except as otherwise provided in this section, a permanent sexual
assault protection order shall be effective for a fixed period of
time, not to exceed two (2) years. However, the order may be renewed
prior to its expiration.
B.
Any sexual assault protection order which would expire on a Court
holiday shall instead expire at the close of the next Court calendar
day in which the Court is open.
Upon motion with notice to all parties and after a hearing,
the Court may modify the terms of an existing sexual assault protection
order. In any situation where an order is terminated or modified before
its expiration date, the Clerk of the Court shall, on or before the
next calendar day, forward a true copy of the modified order or the
termination order to the appropriate law enforcement agency specified
in the modified or terminated order. Upon receipt of the order, the
law enforcement agency shall promptly enter it in the computer-based
criminal intelligence information system or, if the order is terminated,
remove the order from the computer-based criminal intelligence information
system.
A.
In a proceeding in which a sexual assault protection order is sought
under this article, the NHBP Tribal Court may exercise personal jurisdiction
over a nonresident individual if:
(1)
The individual is personally served with a petition; or
(2)
The individual submits to the jurisdiction of the Tribe by consent,
entering a general appearance, or filing a responsive document having
the effect of waiving any objection to consent to personal jurisdiction;
or
(3)
The act or acts of the individual or the individual's agent
giving rise to the petition or enforcement of a sexual assault protection
order occurred within the Tribe's jurisdiction as defined by
NHBPCR Chapter 10, Court Rules for Restraining Orders, or within this
chapter; or
(4)
The act or acts of the individual or the individual's agent
giving rise to the petition or enforcement of a sexual assault protection
order occurred outside the NHBP reservation but are part of an ongoing
pattern of sexual assaults or stalking that has an adverse effect
on the petitioner, a member of the petitioner's family or household
and the petitioner resides within the exterior boundaries of the NHBP
Reservation; or
(5)
There is any other basis consistent with laws of NHBP and/or the
laws of the United States.
B.
For jurisdiction to be exercised under Subsection A(1) through (5) of this section, the individual must have communicated with the petitioner or a member of the petitioner's family, directly or indirectly, or made known a threat to the safety of the petitioner or member of the petitioner's family while the petitioner or family member resides within the exterior boundaries of the Pine Creek Indian Reservation. For the purposes of Subsection A(1) through (5) of this section, "communicated or made known" includes, but is not limited to, regular or electronic mail, telephonic, or a posting on an electronic communication site, medium or social website. Communication on any electronic medium that is generally available to any individual residing in the state shall be sufficient to exercise jurisdiction under Subsection A(4) of this section if directed at a resident of the Pine Creek Indian Reservation.
Violation of a sexual assault protection order is a crime.
