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Tribal Law and Order Code 2001 edition with 2002, 2003 and 2004 supplements TITLE 5 - DOMESTIC RELATIONS, CH. 4-5
GENERAL PROVISIONS 5-4-1 Definitions Unless the context clearly requires otherwise, the definitions in this Section apply throughout this Chapter. (a) "Abandonment" means action or inaction by a person or entity with a duty of care for an elder or a vulnerable adult that leaves the elder or vulnerable person without the means or ability to obtain essential services. (b) "Abuse" means a nonaccidental act of physical or mental mistreatment or injury, or sexual mistreatment, which harms a person through action or inaction by another individual. (c) "Agency" means the Colville Confederated Tribes Area Agency on Aging. (d) "Consent" means express written consent granted after the person has been fully informed of the nature of the services to be offered and that the receipt of services is voluntary. (e) "Director" means the director or administrator of the Colville Confederated Tribes Area Agency on Aging. (f) "Elder" means any person who is sixty (60) years of age or older. (g) "Essential Services" means those services or things necessary to sustain a person's life, physical and mental health, and general well being, such as adequate food, clothing shelter, and health care. It may include service or items considered essential under the person's customs, tradition or religion, including but not limited to, access to traditional foods and access to religious ceremonies or services. (h) "Exploitation" means the illegal or improper use of an elder or vulnerable adult or that person's income or resources, including trust funds, for another person's profit or advantage. Exploitation includes the unreasonable imposition on the elder's time resources, such as leaving children or other persons in the care of the elder or vulnerable adult for extended periods or under circumstances in which the elder or vulnerable adult cannot adequately care for such children or other persons. (i) "Neglect" means a pattern of conduct or inaction by a person or entity with a duty of care for an elder or vulnerable adult that results in the deprivation of essential services to the elder or vulnerable person. (j) "Vulnerable adult" means a person eighteen (18) years of age or older who has the functional, mental, or physical inability to care for himself. "Vulnerable adult" shall include: (1) Persons found incapacitated or adult persons who are otherwise eligible for the appointment of a guardian under this Code; (2) A person who has a disability attributable to mental retardation, cerebral palsy, epilepsy, autism, or another neurological or other condition of an individual found by the Director to be closely related to mental retardation or to require treatment similar to that required for individuals with mental retardation, which disability originates before the individual attains age eighteen, which has continued or can be expected to continue indefinitely, and which constitutes a substantial handicap to the individual. The Agency shall adopt criteria which define neurological or other conditions under this Subpart in a way that is not limited to intelligence quotient scores as the sole determinant of these conditions and notify the Business Council upon such adoption; or (3) Persons admitted to any long-term care facility or receiving services from home health, hospice, or home care agencies located or operating on the Colville Reservation.
(a) The Business Council finds that elders and vulnerable adults may be subjected to abuse, neglect, exploitation, or abandonment and that there are a number of adults sixty years of age or older who lack the ability to perform or obtain those services necessary to maintain or establish their well-being. The Council further finds that many elders and vulnerable adults have health problems that place them in a dependent position and that a significant number of elders and vulnerable adults have mental and verbal limitations that leave them vulnerable and incapable of asking for help and protection. (b) It is the intent of the Business Council to prevent or remedy the abuse, neglect, exploitation, or abandonment of elders and vulnerable adults who have a functional, mental, or physical inability to care for or protect themselves and to provide these persons with the protection of the Colville Tribal Court and the least-restrictive services, such as home care, and preventing or reducing inappropriate institutional care. The Council finds that it is in the interests of the public health, safety, and welfare of the Colville Reservation Community to provide a procedure for identifying these elder and vulnerable persons and providing the services and remedies necessary for their well-being. (c) The Business Council further finds that many elders and vulnerable adults may be homebound or otherwise may be unable to represent themselves in court or to retain legal counsel in order to obtain the relief available to them under this Chapter. It is the intent of the Council to improve access to the courts for victims of abuse, neglect, exploitation, and abandonment in order to better protect the elderly and vulnerable adults.
Any services or functions of the Agency under this Chapter shall be subject to the availability of funding and resources and the Agency shall not be required to expend additional funds or resources beyond those appropriated. Subject to the approval of the Business Council, the Agency may enter into cooperative agreements with state or other agencies for funding or other services necessary to implement this Chapter.
Unless otherwise provided by this Chapter, nothing in this Chapter shall be deemed to preclude the Tribal Court, to the extent authorized by Tribal law, from: (b) Ordering the respondent to pay compensation or restitution to an individual or any other entity injured by the actions of the respondent; or (c) Imposing any other civil or criminal remedy for violations of Tribal law or regulations. 5-4-5 Immunity from Liability (a) Nothing in this Chapter shall be construed as a waiver of the sovereign immunity of the Colville Tribes unless otherwise provided by tribal law or the Business Council. Nor shall this Chapter be construed as superseding or abridging remedies provided by tribal law or the Business Council against any tribal officers, employees or volunteers. (b) A person is immune from liability resulting from a report made under this Chapter or testimony, if in good faith he: (1) Participates in making such report; or (2) Testifies about the abuse, neglect, abandonment, or exploitation of an elder or vulnerable adult in a judicial proceeding under this Chapter. (c) Conduct conforming with the reporting and testifying provisions of this Chapter shall not be deemed a violation of any confidential communication privilege. 5-4-6 Standing—Jurisdiction A petition for a protective order or an action for damages under this Chapter may be brought by the plaintiff, or where necessary, by his or her family members and/or guardian or legal fiduciary, or as otherwise provided under this Chapter. The death of the plaintiff shall not deprive the court of jurisdiction over a petition or claim brought under this Chapter. Upon petition, after the death of the plaintiff, the right to initiate or maintain the action shall be transferred to the executor or administrator of the deceased, for the benefit of the surviving spouse, child or children, or other heirs as set forth in the Revised Code of Washington Chapter 4.20 as of the date of adoption of this Chapter by the Business Council. 5-4-7 Custom and Tradition Any action under this Chapter shall be conducted in a manner, which is consistent with the custom and/or traditional beliefs, if any, of the elder or vulnerable adult to which the action applies and any such action which is contrary to such custom and/or traditional beliefs is prohibited. In determining the custom or traditional beliefs of a particular elder or vulnerable adult, any person taking action under this Chapter may rely on the advice of counselors familiar with such custom or traditional beliefs.
If any provision of this Chapter or its application to any person or circumstance is held invalid, the remainder of the Chapter or the application of the provision to other persons or circumstances is not affected.
5-4-40 Reporting Requirements (a) Except as otherwise provided by this Section, any: (1) Person, including but not limited to, financial institutions or attorneys, having reasonable cause to believe that an elder or vulnerable adult has suffered abuse, exploitation, neglect, or abandonment, or is otherwise in need of protective services may, report such information to the Agency; (2) Professional, police officer, social worker, employee of the agency, a social service, welfare, mental health, or health agency, including but not limited to Indian Health Service (IHS) personnel, home health, hospice, and home care agencies located on the Colville Reservation, congregate long-term care facility, including but not limited to adult family homes, boarding homes, nursing homes located on the Colville Reservation or assisted living services located or operating on the Colville Reservation, or health care provider located or operating on the Colville Reservation, including but not limited to doctors, nurses, psychologists, and pharmacists having reasonable cause to believe that a vulnerable adult has suffered abuse, exploitation, neglect, or abandonment, shall make an immediate oral report of such information to the agency and shall report such information in writing to the agency within ten (10) days of receiving the information. (b) The making of permissive reports as provided under this Section does not create any duty to report and no civil liability shall attach for any failure to make such report. Any report submitted under this Section regarding an elder who is not a vulnerable adult shall not be submitted without the written consent of the elder. Any person mandated to report abuse, neglect, exploitation or abandonment of a vulnerable adult as provided by this Section who knowingly fails to do so or willfully prevents someone else from doing so shall be subject to a civil cause of action by the vulnerable adult, or where necessary, by his or her family members and/or guardian or legal fiduciary. 5-4-41 Reports—Contents (a) A report made under this Chapter shall contain, if known: (1) The identification of the elder or vulnerable adult; (2) The nature and extent of the suspected abuse, neglect, exploitation, or abandonment; (3) Any evidence of previous abuse, neglect, exploitation, or abandonment; (4) The name and address of the person making the report; and (5) Any other helpful information. (b) Unless there is a judicial proceeding or the person consents, the identity of the person making the report shall be confidential.
(a) The agency shall insure that all reports made under this Chapter are responded to. In non-emergency situations the agency shall investigate a report submitted under this Chapter within three (3) days of receiving the report. In the case of an emergency, the agency and/or the Tribal Police shall immediately investigate a report submitted under this Chapter. (b) Entry of a private dwelling or any other location where there is a reasonable expectation of privacy for the purpose of investigating a report submitted under this Chapter may be conducted in accordance with the Colville Tribal Civil Rights Act and other tribal law. (c) If the agency finds that an incident of abuse, neglect, exploitation, or abandonment has occurred, it shall: (1) Provide information to the elder or vulnerable adult on protective services available to the elder or vulnerable adult; (2) Inform the elder or vulnerable adult of the right to refuse such services; and (3) With the consent of the elder or vulnerable adult, insure that appropriate protective services are provided to the elder or vulnerable adult. (d) As part of its obligations under this Section, the agency may develop cooperative agreements with Colville Tribal or other community- based agencies servicing the abused elderly and vulnerable adults. The agreements may cover such subjects as the appropriate roles and responsibilities of the agency and community-based agencies in identifying and responding to reports of abuse, neglect, exploitation or abandonment, the provision of case-management services, standardized data collection procedures, and related coordination activities. The services shall not be provided if the elder or vulnerable adult withdraws or refuses consent. If the agency determines that the elder or vulnerable adult lacks the ability or capacity to consent, it may file a petition for guardianship as provided by this Code for the purpose of providing the services under this Section.
If access to an elder or vulnerable adult alleged to be abused, neglected, exploited, or abandoned, is denied to an employee of the agency seeking to investigate such abuse, neglect, exploitation, or abandonment: (1) There is reasonable cause to believe that the person is an elder or vulnerable adult and is or has been abused, neglected, exploited, or abandoned; and (2) The employee of the agency seeking to investigate the report has been denied access as provided by this Section. (b) The person authorized to seek entry of the premises may contact the Tribal Police who shall assist in obtaining access, if the denial of access is conducted in a manner which causes such authorized person to reasonably believe that efforts to obtain entry will be forcibly resisted or there is otherwise apparent danger to such person. If peaceable entry is not feasible, the tribal police may take such action as is authorized by tribal law to obtain entry. 5-4-44 Data Collection System The agency may maintain a system for statistical data collection, accessible for bona fide research only as the Business Council by rule, adopted in accordance with the administrative procedure provisions of this Code, prescribes. The identity of any person obtained through such data collection system is strictly confidential. 5-4-45 Cause of Action for Damages (a) In addition to other remedies available under tribal law, an elder or vulnerable adult who has been subjected to abuse, neglect, exploitation, or abandonment, shall have a cause of action for damages on account of his injuries, pain and suffering or loss of property sustained thereby, against any person who has caused the abuse, neglect, exploitation, or abandonment or who has permitted another to engage in the abuse, neglect, exploitation, or abandonment. (b) The tribal prosecutor or the director may: (1) Upon consultation with the alleged victim, bring an action against any person who engages in the conduct described under this Section; or (2) If he certifies that in his opinion, the action is of general public importance, intervene in any action brought under this Section. (c) In addition to remedies otherwise provided in this Section, upon prevailing in an action under this Subsection, the court shall award the tribes costs of investigation and penalties. Penalties may not exceed $5,000 per occurrence. (d) In an action brought under this Section, a prevailing plaintiff shall be awarded his actual damages, together with the costs of the suit, including a reasonable attorney's fee. The term "costs" includes, but is not limited to, the reasonable fees for a guardian, guardian ad litem, and experts, if any that may be necessary to the litigation of a claim brought under this Section.
(a) An elder or vulnerable adult or the agency on behalf of and with the consent of an elder or vulnerable adult may file a petition for a protective order from abuse or exploitation, or the threat thereof, in Tribal Court. The petition: (1) Shall allege that the petitioner is an elder or vulnerable adult and that he has been abused or exploited or is threatened with abuse or exploitation by the respondent; (2) Shall be accompanied by affidavit made under oath stating the specific facts and circumstances which demonstrate the need for the relief sought; (3) May be made whether or not there is a pending lawsuit, complaint, petition, or other action between the parties. (b) A petitioner is not required to post bond to obtain relief in any proceeding for a protective order under this Chapter. (c) Neither the agency nor the Colville Confederated Tribes shall be liable for failure to seek relief on behalf of any persons under this Section. 5-4-81 Hearing (a) Unless otherwise provided by this Section, the Tribal Court shall order a hearing on a petition for protective order filed under this Chapter not later than fourteen (14) days from the date of such filing. Personal service shall be made upon the respondent not less than five (5) days before the hearing. If timely service cannot be made, the Court may set a new hearing date. (b) In the event that the Tribal Court determines that an emergency exists involving danger of immediate harm to person or property, or there is other good cause, it may issue a temporary protection order without notice or hearing. Such protection order shall not be enforced until the person to whom it is directed has been served with a copy of it or has otherwise been informed of its contents, and a hearing shall be held as soon thereafter as possible.
(a) An order of protection issued by the Tribal Court under this Chapter may: (1) Restrain the respondent from committing acts of abuse or exploitation; (2) Exclude the respondent from petitioner's residence for a specified period or until further order of the court; (3) Prohibit contact by respondent for a specified period or until further order of the court; (4) Require an accounting by respondent of the disposition of petitioner's income or other resources; (5) Restrain the transfer of property for a specified period not exceeding ninety (90) days; (6) Require the respondent to pay filing fees and court costs, including service fees, and to reimburse the petitioner for costs incurred in bringing the action, including a reasonable attorney's fee; (7) Require other relief as the court deems necessary. (b) Any relief granted by a protective order, other than a judgment for costs, shall be for a fixed period not to exceed one (1) year after which time it shall be reviewed by the Court to determine if the order should remain in affect for such period as is necessary to protect the elder or vulnerable adult from abuse or exploitation as determined by the Court.
When a protective order under this Chapter is issued, the court may, upon request of the petitioner, order a Tribal Police officer to assist in the execution of such order.
CHAPTER 5-5 DOMESTIC AND FAMILY VIOLENCE CODEGENERAL PROVISIONS 5-5-1 Legislative Purpose In enacting this Chapter, it is the intent of the Colville Business Council to honor the traditions of the Colville Tribes by securing the safety of victims, protecting the community from the effects of violent acts and ensuring that whenever a crime involving domestic violence occurs, the offender incurs an obligation to repair the harm done to the community, and takes responsibility for his or her actions. The Tribes recognize that its strength is founded on healthy families. Violence against family or household members is not in keeping with traditional Tribal values, which hold all people sacred. Thus, incidents of domestic violence must be met with immediate intervention by law enforcement, prosecution, counseling, education and other appropriate services. These responses will allow offenders and victims the opportunity to make positive changes and strengthen tribal culture in their lives. The purpose of this Chapter is to stop all family violence on the Colville Reservation, to promote the healing of families and the Tribes where possible, and to promote cultural teachings and traditional Tribal values so as to nurture non-violence and respect within families. Domestic violence is a serious crime against our people and this Chapter seeks to guarantee the victims of domestic violence the maximum protection from abuse which Colville Tribal law can provide.
The Tribes, in accordance with the unique and distinct attributes and values of our culture, find that domestic violence is contrary to the interests of our people, our traditional values, and a sense of well-being and growth. In order to promote healthy communities within our Tribes, we need to understand and embrace our traditional understandings of familial relationships which do not condone violence. Traditionally, women and men were equal in social status. Both had important and flexible economic and social roles. These roles complimented each other and enabled partners to provide abundantly for the families’ economic and emotional needs. There was no imbalance of power between men and women. They each had the ability and resources to live well with or without a spouse. As equals, either partner had the right to end a relationship. If partners separated, either partner had all rights in developing new relationships and marriages. A large network of relatives and friends helped to meet any special or unmet needs, and were always active in rearing of the communities’ children. In all cases, parents had responsibility to their children. Various events and processes have weakened the framework of traditional culture. The long-honored values of generosity, respect for all things, and high regard for peace have devolved into individual gain, indifference, and aggression. The criminalization of our spiritual and cultural practices, and our languages, have affected our perceptions of the world and of ourselves. The deterioration of the roles of men, women, and the extended family have isolated and fractured our once lively societies. The displacement of our children into formalized educational institutions has stifled the transmission of culture to the point that the inherent meanings developed over millennia have often times been lost. Because of these and other factors, many social ills previously uncommon to the people are commonplace today. Alcoholism, sexual abuse, and drug abuse are examples of the effects these changes have had over several generations. Another manifestation of this is domestic violence, which detrimentally affects generations of members of our community. Domestic violence comes in many forms, including, but not limited to, physical, verbal, psychological, spiritual, emotional, and sexual abuse of our children, spouses, siblings, parents, or elders. In addition, Tribal families and communities are not made up exclusively of tribal members. Non-members and non-Indians frequently become a part of our families and community. Domestic violence occurs against persons who are not members of the Tribes. Within these consensual relationships, including marriage and cohabitation, domestic violence may occur. Non-Indians committing domestic violence will be subject to all civil remedies available under this chapter, including exclusion. As with all inherent rights and authorities the Tribes possess, the political integrity of the Tribes and the welfare and safety of the Reservation’s residents is of the utmost importance. The Tribes must address domestic violence within its communities. Service providers, policy makers, legal service and justice departments acknowledge that domestic violence is harming our communities. State and Federal agencies do not always have the resources or willingness to prosecute crimes in which they may have concurrent jurisdiction. In response to concerns expressed by the community and various tribal programs dealing with the effects of domestic violence, we have mandated tribal programs to collaboratively draft and seek input in developing this domestic violence code. This Chapter is a product of that collaborative process. Statistics specific to domestic violence in Indian communities are difficult to find. However, the frequency of battering in Indian country is believed to be much higher than the national norm in keeping with the higher statistical trend of other social problems.
(a) “Advocate” means an employee of, or a volunteer for, a program for victims of domestic violence who:
(b) “Child Welfare Agency” means the Tribal governmental agency to which the Court grants custody of minors when the Tribes intervenes in a family’s life. (c) “Court” means all courts of the Confederated Tribes of the Colville Reservation. (d) “Domestic Violence” 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 or culturally appropriate discipline of a child:
(e) “Dominant Aggressor” means the person whose actions are primarily responsible for initiating or triggering the domestic violence throughout the course of the relationship. (f) “Ex Parte” in this Chapter means that only the requesting party is heard by the Court, and that notice and an opportunity to contest the facts are not available to the party adversely affected at that hearing. (g) “Family or Household Members” include:
(h) “Perpetrator” means a person who commits a crime. (i) “Public Official” means a person elected, appointed or hired who has discretionary authority to carry out some portion of a government’s sovereign powers for a fixed period. (j) “Shelter” means a safe home/shelter home that provides temporary refuge and adequate food and clothing offered on a twenty-four (24) hour, seven (7) day per week basis, to victims of domestic violence.
5-5-10 Duties of Law Enforcement Officer to Victim of Domestic Violence (a) A law enforcement officer who responds to an allegation of domestic violence shall use all reasonable means to protect the victim, family or household member or witnesses and to prevent further violence, including, but not limited to:
(b) As part of the notice required in subsection (a)(6) above, the law enforcement officer shall give a written notice to the adult victim which substantially informs him or her that:
(a) The purpose of this section is to assist in the prosecution of perpetrators of alleged crimes involving domestic violence recognizing that victims are often reluctant to press charges or testify at subsequent hearings for many reasons, including but not limited to economic, emotional, or psychological factors. (b) All law enforcement officers who respond to an allegation of a crime involving domestic violence shall write a report and take reasonable steps to collect sufficient evidence to enable the prosecutor to secure a conviction of the perpetrator without the testimony of any victim. Reasonable steps include, when appropriate, photographs of injuries to any victim, of damage to property and of the location and surroundings of the alleged incident. Reasonable steps also include at a minimum, gathering statements and interviewing all known witnesses including medical personnel and all responding law enforcement officers. However, in order to preserve evidence and not taint the testimony or induce additional trauma, an interview of a child shall be conducted by someone trained and qualified to interview children. (c) A law enforcement officer who responds to an allegation of a crime involving domestic violence shall encourage any victim to make a sworn statement concerning the incident and shall take one from the perpetrator, if possible. Said statements shall be admissible in Tribal Court as probative evidence. (d) A law enforcement officer who responds to an allegation of a crime involving domestic violence shall insure that the victim is made aware of the importance of preserving evidence of the incident. In addition, upon responding to said allegation the law enforcement officer shall make diligent efforts to preserve a chronology of events in written form.
The purpose of mandating arrest of perpetrators is to provide victims with immediate protection from the current violence, to afford them an opportunity to consider legal options, to provide victims with time to safely relocate or obtain an order of protection, and to insure an adequate and prompt law enforcement response to domestic violence.
(a) When a law enforcement officer has probable cause to believe that domestic violence has occurred, and the victim requests immediate protection, and a judge is not available to hear a request for an emergency order of protection in person, the officer may contact the judge by telephone to hear the request, and the officer shall state the grounds for making the request. (b) A law enforcement officer who receives authorization from the court by telephone, to carry out an emergency order of protection shall:
(c) When an alleged victim of domestic violence presents a law enforcement officer with a foreign order of protection and requests immediate protection and enforcement of such order, and a judge is not available to hear a request for an emergency order of protection in person, the officer shall contact the judge by telephone to hear the request, and the officer shall state the grounds for making the request. In all cases, the officer’s duty to enforce said foreign order shall be in accordance with section 5-5-103.
The Colville Tribal Police Department shall insure that law enforcement officers provide expedited service for orders of protection.
(a) Incident to arrest for a crime involving domestic violence, a law enforcement officer shall seize all weapons that are alleged to have been involved, or were threatened to be used, in the commission of the crime. (b) The law enforcement officer may also seize a weapon that is in the plain view of the officer or that was discovered pursuant to a consensual search or a search incident to arrest as necessary for the protection of the officer or other persons. (c) Law enforcement officers are authorized to confiscate weapons from a person who is prohibited from possessing or using them.
When a law enforcement officer has probable cause to believe that a respondent has violated one of the following orders of a court, and the officer has determined the existence of an order, the officer shall, without a warrant, arrest the alleged violator. This section applies to all violations of any order of protection whether civil or criminal. Arrest shall be mandatory where the violation is of one of the following:
If a law enforcement officer has probable cause to believe that a person has violated a condition of release from arrest or detention the officer shall, without a warrant, arrest the alleged violator.
The Colville Tribal Police Department shall maintain written records of arrests, incident reports, and initial contacts in such a manner as to allow tracking and identification of them as related to domestic violence.
A law enforcement officer shall not be held liable in any civil action for an arrest based on probable cause, enforcement in good faith of any court order, or any other action or omission made in good faith under this Chapter arising from an incident of alleged domestic violence.
No special treatment by policy makers or law enforcement officials shall be given to any person because of their official capacity as a law enforcement officer, public official, or because of their connections to or influence over policy makers, public officials, law enforcement officers or the community. All procedures and duties set out in this Chapter shall be strictly adhered to, regardless of any administrative, interagency, or departmental investigation and sanctions.
5-5-30 Purpose of Authorizing Civil Orders of Protection (a) The purpose of authorizing civil orders of protection is to provide victims of domestic violence with a process for obtaining orders of protection independent of contacting law enforcement officers to report a crime. Petitioners applying for orders of protection should be referred to law enforcement in the event that an unreported crime has been committed. (b) The purpose of authorizing orders of protection to be issued without prior notice to the respondent is to insure the immediate protection of the petitioner and any family or household member. Prior to issuing, modifying or extending, an ex parte order the Court shall determine whether prior notice is likely to increase the danger to the petitioner or other family or household member and shall only issue the order if prior notice is likely to increase the danger.
No complaint or underlying action need be filed in order to obtain a civil protection order. No filing fees are required for an Order of Protection, either civil or criminal.
(a) Any person who alleges that he or she is or has been a victim of domestic violence may file a petition for an order of protection. A Guardian Ad Litem shall be appointed for any minor who individually files on his or her own behalf a petition for an order of protection. (b) Family or household members, including adults, may jointly file a single petition. (c) A person may petition for relief on his or her own behalf, and on behalf of any family or household members under the age of eighteen (18) years. (d) An adult or child welfare agency or a child’s spokesperson may petition for an order of protection on behalf of others for whom they are responsible.
(a) A petition for an order of protection from domestic violence, or to modify an existing order of protection shall include:
(b) A signed statement, or separate affidavit filed with the petition, stating in the petitioner’s own words, the specific facts and circumstances of the alleged domestic violence, including whether the petitioner believes him or herself to be in immediate danger of further domestic violence, and if applicable, what modifications to the existing order the petitioner is requesting, and why the changes are necessary. (c) A statement listing each civil or criminal action or proceeding, past and present, involving both parties, the court of record for the action or proceeding, and any additional identifying information which may enable the Court to access court dockets, charges, pleadings, outcomes and the issuance of any civil or criminal protection orders.
(a) The Court shall insure that a judge or other authorized person designated by the Court is available to hear petitions or requests for an emergency order of protection twenty-four (24) hours a day, seven (7) days per week. (b) The Court may issue a written or telephonic emergency order of protection, without notice to an alleged perpetrator when the Court finds reasonable cause to believe:
(c) The Court may issue, upon its own motion, a written or oral emergency order of protection, without notice to an alleged perpetrator when it appears upon review of a petition for an order of protection that the Court has reasonable cause to believe:
(d) The Court may grant the following relief in an emergency order of protection:
(e) An emergency order of protection expires twenty (20) days after issuance, unless the Court orders otherwise. (f) Following entry of an ex parte emergency order of protection, the Court shall:
(a) If it appears from a petition for an order of protection or a petition to modify an order of protection that domestic violence has occurred, or that modification of an order is required, the Court may:
(b) The Court may, without notice and a hearing, issue or modify an order of protection ex parte and grant the relief as set forth in sections 5-5-34 (d)(1) through (7) above, and also order that the respondent’s possession or use of any firearm or other weapon specified by the Court is prohibited, and that the respondent is required to turn such items in to law enforcement for safekeeping. (c) The Court may grant the following relief in an order of protection or modification of an order of protection, after notice and a hearing, whether or not the respondent appears:
(d) If the Court issues or modifies an order of protection under this section the Court shall:
(e) An order of protection issued pursuant to this section is effective for up to one (1) year, or until further order of the Court, and may be renewed or rescinded by the Court prior to expiration, upon the petitioner’s request and upon notice to the parties and after a hearing, whether or not the respondent appears.
(a) Respondent may request modification of an order of protection where he or she can show by a preponderance of the evidence that he or she did not receive adequate notice of the hearing for an order of protection. (b) Upon receiving the respondent’s request, the Court shall set a hearing as soon as practicable, but not later than fourteen (14) days after the next day on which Court is in session following the filing of the respondent’s request. The Court shall order the court clerks, to send notice to the petitioner that the respondent is seeking a modification of the order. (c) The purpose of the hearing shall be for the Court to consider whether any less restrictive alternatives may be appropriate under the circumstances. The Court may modify an order where the order causes an unreasonable hardship upon the respondent, provided that the safety of the victim or any family or household member protected by the order is not jeopardized and remains the primary consideration.
5-5-40 Duty of Prosecutor to Inform Victim of Rights—Victim’s Rights in Legal Proceedings (a) Any person prosecuting a crime involving domestic violence shall make reasonable efforts to notify the victim of his or her rights as set forth below. (b) A victim of a crime involving domestic violence is entitled to all rights granted to victims of crime including, but not limited to, the right to:
(a) When a prosecutor moves to dismiss charges against a defendant accused of a crime involving domestic violence or when the Court dismisses such charges, the specific reasons for the dismissal must be recorded in the Court file. (b) If the motion for dismissal, or dismissal, is based on the unavailability of the alleged victim or any witness, the prosecutor shall indicate the specific reason why such person(s) are unavailable, and why the case cannot be prosecuted.
Law enforcement and the prosecutor have a duty to refer a non-Indian perpetrator to the appropriate federal or state agency for criminal prosecution immediately upon learning that the perpetrator is not subject to the criminal jurisdiction of the Tribes. The fact that the Tribes refers these cases to another agency does not diminish the Tribes jurisdiction to impose civil dispositions.
To invoke the provisions of this Chapters, the prosecutor shall expressly state in the charging document that the perpetrator is being accused of a crime involving domestic violence.
5-5-50 Conditions of Pretrial Release—Written Orders (a) When considering pretrial release of a person who is under arrest for, or being charged with, a crime involving domestic violence, the Court shall review all available facts and reports concerning the arrest and detention of the person, and make a determination, on the record, if possible, on whether to release the person. The Court shall consider whether the person:
(b) Before authorizing release of a person under arrest for, or charged with, a crime involving domestic violence, the Court shall consider imposing conditions of release or bail on the person to protect the alleged victim, and to insure the appearance of the person arrested or charged at a subsequent court proceeding. Conditions of release or bail may include:
(c) If conditions of release are imposed, the Court shall:
(d) The written order releasing the person arrested for or charged with a crime involving domestic violence shall contain the conditions of release imposed by the Court and shall contain a prominent annotation, in either boldfaced type or capital letters, which substantially informs the released person that:
(e) The Court shall direct the Colville Tribal Police Department, or any other entity having custody of the arrested or charged person, to provide a copy of the conditions of release 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. (f) When a person who is arrested for or charged with a crime involving domestic violence is released from custody, the Court shall direct the Colville Tribal Police Department, or any other entity having custody of the arrested or charged person to:
The Court shall not dismiss a criminal case involving domestic violence for the sole reason that a civil compromise or settlement is offered or reached.
The Court shall identify by any reasonable means, on docket sheets, those criminal actions arising from acts of domestic violence.
The Court shall take whatever steps are necessary to insure that any information related to the victim’s safety is kept confidential, and to prevent release of such information except at the victim’s request, or with his or her prior written consent.
This section provides for the enhancement of penalties applicable for the underlying crime when the crime involves domestic violence. The Court shall direct that the trier of fact find a special verdict, based on a preponderance of the evidence, that the crime is a crime involving domestic violence.
Consistent with CTC § 3-1-123 the following are the penalties for violating court orders in cases involving domestic violence:
(a) 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 ten (10) years of disposition, sentencing, or dismissal of the prior case involving domestic violence, the sentence to be served and paid shall be greater than previously served and paid. (b) This section shall apply to any offense committed after the enactment of this section, but any conviction of a crime involving domestic violence committed before enactment of this section may be considered in determining whether the sentence should be enhanced as provided in this section. (c) The Court shall impose traditional cultural disposition as provided under section 5-5- 57.
The purpose of this section is to revitalize and use tribal culture and tradition when dealing with domestic violence.
A reduction in sentence for good time served is expressly prohibited.
No Judge, Court Administrator, or Court Clerk shall be held liable in any civil action for any action or omission made in good faith under this Chapter arising from an incident of alleged domestic violence.
The trial court shall have discretion in determining whether to grant a stay of any or all provisions of its orders under this chapter pending the outcome of an appeal (of such orders) with the exception that provisions aimed at protecting victims shall not be stayed. The trial court shall provide written findings and conclusions in support of its decision on granting or denying a request for a stay.
Filing fees shall not be required in any cases, whether civil or criminal, involving domestic violence.
5-5-70 Expedited Service of Process in Cases Involving Domestic Violence In any case where a perpetrator of alleged domestic violence cannot personally be served any type of notice required by this Chapter, and service of process must be effected by mail or posting, service shall be complete:
Whenever practical, the Court shall provide a secure waiting area during court proceedings for a victim and family or household members or witnesses that does not require them to be in close proximity to defendants and families or friends of defendants.
In any proceeding concerning the custody of, or visitation with a child, the court shall not order mediation or refer either party to mediation if an order of protection is in effect unless:
Under this Chapter a defendant has the burden to prove self-defense by a preponderance of the evidence.
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 domestic violence perpetrated by the other spouse:
(a) A victim of a crime involving domestic violence may refuse to disclose, and may prevent an advocate from disclosing, confidential oral communications between the victim and the advocate, and written records and reports concerning the victim when:
The privilege extends to all oral and written communications between and by either the advocate or the victim, and encompasses all communications made in the course of the advocacy relationship, including those made in the presence of third parties also participating in the advocacy or other victim services. (b) An advocate may not claim the privilege if the privilege has been waived by the victim, or if the victim is deceased. (c) The advocate-victim privilege does not relieve a person from any mandatory duty imposed by federal or tribal law to report child abuse. A person may not claim the privilege when providing evidence in proceedings concerning child abuse.
(a) In every proceeding where custody of a child is in dispute, a determination by the Court that domestic violence has occurred raises a rebuttable presumption that it is detrimental to, 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. (b) In every proceeding where custody of a child is in dispute, a determination by the 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.
(a) In all proceedings where the Court or trier of fact has found a crime involving domestic violence to have occurred, the safety and well-being of the child and of the parent who is the victim of domestic violence is the primary consideration in determining custody and visitation. The Court shall also consider the perpetrator’s history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury or assault to any other person. (b) If a parent is absent or relocates because of an act of domestic violence by the other parent, the absence or relocation shall not be a factor that weighs against the parent in determining custody or visitation.
(a) The Court may award visitation by a parent who committed a crime involving domestic violence only if:
(b) In a visitation order, adequate provision for the safety of the child and the parent who is a victim of a crime involving domestic violence may include, but is not limited, to an order that:
(c) Whether or not visitation is allowed, the Court may order the address of the child and the victim to be kept confidential. (d) As a condition of receiving custody or visitation of the child, the Court may order an adult who is a victim of a crime involving domestic violence to attend counseling only when there is evidence brought before the court that the victim is living with or involved with another perpetrator of a crime involving domestic violence with whom it can reasonably be concluded that the child would be in regular contact. The Court shall not order the victim to attend counseling with any of his or her perpetrators. (e) If the Court allows a family or household member to supervise visitation, the Court shall furnish clear guidelines to those persons regarding their responsibility and authority during supervision, so they are better able to protect the child and adult victim should the perpetrator engage in violent or intimidating conduct toward the child or adult victim in the course of visitation.
After the entry of an initial custody or visitation order, a finding of domestic violence always constitutes a finding of changed circumstances in any proceeding to modify custody or visitation of a child.
Victims statements shall be admissible as probative evidence. The trier of fact may assign whatever weight to the statement it deems appropriate.
5-5-90 Notice of Rights of Victims and Remedies and Services Available—Required Information to be Provided by Health Service Providers (a) The Colville Tribal Health and Indian Health Service shall make available to their staff, and to all patients, a written notice of the rights of victims and of the remedies and services available to victims of domestic violence, as they are set forth in section 5-5- 10(b). (b) Any health care practitioner, who becomes aware that a patient is a victim of domestic violence, shall provide the patient with the notice in section 5-5-10(b). (c) Written notice provided by the Colville Tribal Health and Indian Health Service, their staff or any health care practitioner, for general distribution to the public shall not include the addresses of shelters, unless the location is public knowledge.
(a) The purpose of this section, as a first step in the process of providing essential safeguards and services for families, is to avert the trauma of domestic violence and child abuse in families, by informing parents, particularly of new or young families, about domestic violence, and about the community and health care systems which are available for support and assistance. (b) The Colville Tribal Health and Indian Health Services shall provide information concerning domestic violence to parents of both newborn infants and 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 treatment of domestic violence.
(a) Any person or entity performing child abuse investigatory services within the Confederated Tribes of the Colville Reservation shall follow written procedures for screening each referral for abuse or neglect of a child to assess whether abuse or neglect of another family or household member is also occurring. The assessment shall include but is not limited to:
(b) If it is determined in an investigation of abuse or neglect of a child that the child or another family or household member has been or is a victim of domestic violence or is threatened by acts of domestic violence, and it reasonably appears to the person conducting the investigation that the child or another family or household member is in danger of domestic violence and that removal of one of the persons is necessary to prevent the abuse or neglect of the child, the responsible person or entity, shall seek the removal of the alleged perpetrator. (c) If a parent of the child has been a victim of domestic violence, appropriate services must be offered to the victimized parent.
If requested by the victim, and if practical and if the presence of the advocate does not cause any unnecessary delay in the investigation or prosecution of the case, an advocate from a local program shall be present at any prosecutorial or defense interviews with the victim, and at any judicial proceeding related to criminal acts committed against the victim.
Any health, social and advocate services staff shall not be held liable in any civil action for any action or omission made in good faith under this Chapter arising from an incident of alleged domestic violence.
5-5-100 Purpose of the Enforcement of Foreign Orders The purpose of this Chapter is to insure compliance with the Full Faith and Credit provision of the Violence Against Women Act of 1994 (V.A.W.A.) as set forth in Title 18 of the United States Code, section 2265 (18 U.S.C. § 2265), as now or hereafter amended, and to insure the safety of victims of domestic violence who are located within the jurisdiction of the Confederated Tribes of the Colville Reservation, by giving effect to Orders of Protection which fall within the scope of that Act.
(a) For purposes of this chapter, an “order of protection” means any injunction or other order issued for the purpose of preventing violent or threatening acts, harassment against, stalking, or contact or communication with or physical proximity to, another person, including temporary and final orders issued by civil and criminal courts (other than support or child custody orders), however obtained, so long as any civil order was issued in response to a complaint, petition or motion filed by or on behalf of a person seeking protection. (b) Any order of protection, except as noted in (c) below, issued by a court of any Indian tribe or State of the United States, the District of Columbia, a commonwealth, territory or possession of the United States, or Canadian or First Nations Court shall be accorded full faith and credit by the Court, and shall be enforced as if it were an order of the Court, if both:
(c) A foreign order of protection entered against both a petitioner and a respondent shall not be enforceable against the petitioner unless both:
(a) A victim who obtains a valid order of protection from another Indian tribe or State of the United States, the District of Columbia, a commonwealth, territory or possession of the United States or Canadian or First Nations Court may file that order by presenting a certified copy of the foreign order of protection to a clerk of the Court and request that the Court grant full faith and credit to that protection order. (b) There shall be a presumption in favor of validity where a foreign order of protection appears authentic on its face. (c) Filing of a foreign order of protection shall be without fee or cost. (d) Upon receipt of a foreign order of protection, the tribal court clerk shall:
If a law enforcement officer is presented with a foreign protection order, which appears valid on its face, the officer shall enforce such order as if it had been entered by the Court.
As a prerequisite to according full faith and credit to a foreign protection order, the Court may not require that the order be filed in Court and will grant full faith and credit without such filing.
Any law enforcement official of the Colville Tribes who acts in good faith in enforcing a foreign protection order and its terms shall be immune from suit for wrongful arrest or any other civil or criminal action. This immunity shall extend to a tribal officer who effects the arrest of a non-Indian for violation of a protection order. Nothing in this Chapter shall prevent the Court from entering into agreements, or establishing procedures by which orders of protection may be filed with the Court and be entitled to full faith and credit.
If any provision of this Chapter or its application to any person or circumstance is held to be invalid, the remainder of this Chapter or the application of the provision to other persons or circumstances shall not be affected. (Chapter 5-5 Adopted 6/3/04, Resolution 2004-385) Back to Top |