Sisseton-Wahpeton Sioux Tribe: Tribal Codes

CHAPTER 52

PROTECTION FROM DOMESTIC VIOLENCE ORDINANCE

 

BE IT ENACTED BY THE SISSETON-WAHPETON SIOUX TRIBAL COUNCIL to prohibit domestic violence, to provide protection for adults who have suffered harm or threats of harm at the hands of another family or household member, and to impose legal intervention and penalty to violators of this law..

52-O1-01 DEFINITIONS OF TERMS:

52-01-02 Adult - means any person eighteen (18) years of age or older, or an individual who is otherwise emancipated.

52-01-03 Court - means the Sisseton-Wahpeton Sioux Tribal Court.

52-01-04 Domestic Violence - means intentionally inflicting, or attempting to inflict, physical injury, physical restraint, or malicious damage to the personal property of the victim.

52-01-O5 Family or Household Member - means spouses, persons living with spouses, persons related by blood or marriage, and other persons residing jointly in the same dwelling unit who are eighteen (18) years of age or older, or who are emancipated.

52-01-06 Petitioner/victim - means person alleging abuse in a Protection Order petition and throughout the proceedings described in this chapter.

52-01-07 Respondent abuser - means person alleged to have abused another in a Protection Order petition and throughout subsequent Court proceedings.

52-02-01 JURISDICTION
This ordinance shall invoke the civil jurisdiction of the Sisseton-Wahpeton Sioux Tribal Court over Indian and Non-Indian persons subject to the Courts jurisdiction. The jurisdiction of the Court shall remain in effect until such time as a complaint for divorce is filled and/or the Court orders the dissolution or modification of any Protection Order.

52-03-01 PETITION FOR RELIEF
Any or all persons who have been subjected to domestic violence or to threats of abuse by an adult member of their family or household may seek relief under this chapter by filing a sworn petition in Court, alleging such violation by the respondent/abuser.

52-04-01 DUE PROCESS OF LAW IN PROVIDING IMMEDIATE PROTECTION, SUBSEQUENT HEARING, AND ASSIGNING PAYMENT FOR COURT COSTS AND ATTORNEY FEES

52-04-02 Upon the filing of a petition under this ordinance; the Court shall immediately; for good cause shown; issue an Ex Parte Protection Order. An immediate and present danger of abuse to the petitioner/victim shall constitute good cause for purposes of this section.

52-04-03 Within ten (10) days after such order is issued under this chapter; a Hearing shall be held, at which time the. Court shall either dissolve any Ex Parte Protection Order on the respondent/ abuser; or shall (if the petitioner/ victim has proved the allegation of abuse by a preponderance of the evidence) extend the Protection Order for a definite period of time, not to exceed one (1) year.

52-04-04 Any Ex Parte Protection Order shall be in effect until the time of the Hearing.

52-04-05 If no Ex Parte Protection Order has been issued as of the time of the Hearing; and the petitioner/victim proves the allegation of abuse by a preponderance of the evidence; the Court may at that time issue a Protection Order for a definite period of time; not to exceed one (1) year.

52-04-06 The Court shall cause a copy of the petition and notice of the date set for the Hearing on such petition; as well as another copy of the Ex Parte Protection Order; to be served on the respondent/ abuser at least five (5) days prior to such Hearing. Such notice shall advise the respondent/abuser that (s)he may be represented by Counsel.

52-04-07 If the Court; after the Hearing; issues or extends a Protection Order; the petitioner/ victims Court costs and attorney fees shall be assessed against the respondent/abuser.

52-05-01 SCOPE OF THE PROTECTION ORDER
Any Protection Order granted under this ordinance to protect the petitioner/ victim from domestic violence may include, but is not limited to the following:

1. Directing the respondent/abuser to refrain from abusing; or threatening to abuse; the petitioner/victim;

2. Granting to the petitioner /victim possession of the residence, household furnishings and utensils; or automobile to the exclusion of the respondent/ abuser by evicting the respondent/abuser; by restraining possession to the petitioner/victim; or by both;

3. Directing the respondent/ abuser to provide suitable, alternate housing for the petitioner/ victim when the respondent/ abuser is the sole owner or lessee of the residence or household;

4. Assigning an officer of the Court to assist the petitioner/ victim in removing personal- property and household goods remaining in the residence if the respondent/abuser is to occupy it;

5. Awarding temporary custody of; or establishing temporary visitation rights with regard to; any minor children born to or adopted by the parties; or

6. Awarding financial support to the petitioner/ victim and such persons as the respondent/victim has the duty to support. Relief granted pursuant to Subsections be, of this section shall be ordered only after the petitioner/victim and respondent/abuser have both been given an opportunity to be heard by the Court.

7. Ordering counseling for the respondent/ abuser from the Indian Health Service Mental Health/Social Services component; or from another appropriate agency; requiring that reports on the results or outcomes of sessions held be submitted to the Court.

52-06-01 STATEMENT OF PENALTY FOR VIOLATION INCLUDED IN PROTECTION ORDER
Any Protection Order issued under this ordinance shall include the statement of the maximum penalty which may be imposed pursuant to Section 52-13-01 for violating such order.

52-07-01 PROTECTION ORDER NOT TO AFFECT TITLE TO REAL PROPERTY
No Protection Order made under this ordinance shall in any manner affect title to any real property.

52-08-01 WITHDRAWAL OF PETITION FOR RELIEF
The petitioner/ victim shall not be permitted to withdraw the petition after it is filed during the period pending the Hearing.

52-09-01 EXECUTION OF BOND NOT REQUIRED
The Court shall not require the execution of a bond by the petitioner/ victim in order to issue any Protection Order under this ordinance.

52-09-01 REFERRAL BY THE COURT FOR COUNSELING AND/OR THERAPY
The Court shall refer the victims of domestic violence for counseling and/or therapy and shall require the agency to report to the Court on the progress or status of the petitioner/victim.

52-11-01 DURATION OR MODIFICATION OF THE PROTECTION ORDER
All Protection Orders shall be effective for a fixed period of time, not to exceed one (1) year. The Court may modify: its order at any time upon subsequent motion filed by either party; together with an affidavit showing a change in circumstances sufficient to warrant the modification. Prior to modifying the Protection Order; the Judge shall review and consider progress reports on the psychological and emotional status of both the petitioner/victim and the respondent/abuser.

52-12-01 COPIES OF PROTECTION ORDER TO BE ISSUED
A copy of any Protection Order granted under this chapter shall be issued to the petitioner/victim; the respondent/ abuser, all law enforcement agencies; and to the counseling agency or agencies directed to provide services.

52-13-01 PENALTY FOR VIOLATION OF PROTECTION ORDER
Upon violation of the Protection Order, the Court may hold the respondent/abuser in civil contempt and punish him/her in accordance with the law.

52-14-01 ARREST FOR VIOLATION OF PROTECTION ORDER (INCLUDING ARREST WITHOUT WARRANT)

52-14-02 An arrest for violation of a Protection Order issued pursuant to this ordinance may be with or without a warrant.

52-14-03 Any law enforcement officer may arrest the respondent/ abuser without a warrant under the following circumstances:

1. The officer has proper jurisdiction over the area in which the moving party resides;

2. The officer has reasonable cause to believe the respondent/ abuser has violated or is in violation of a Protection Order; and

3. The officer has verified whether a Protection order is effect against the respondent/abuser. If necessary, the police officer may verify the existence of a protection Order by telephone or radio communication with an appropriate law enforcement agency.

52-14-04 No Ex Parte Protection Order can be enforced under this Section until the respondent/ abuser has been served with the Protection order, has been otherwise notified; or if twenty-four (24) hours from the time of issuance has lapsed.

52-15-01 DOE PROCESS OF LAW FOR ARRESTEE
A person arrested pursuant to this chapter shall be brought before the Court within forty-eight (48) hours to answer a charge of contempt for violation of the Protection order, at which time the Court shall:

1. Set a certain time fogy Hearing on the alleged violation of the Protection-Order within seventy-two (72) hours after arrest, unless extended by the Court on the motion of the arrested person;

2. Set a reasonable bond pending the Hearing on the alleged violation of the Protection Order; and

3. Notify the person who has procured the Protection Order and direct that party to show cause why a contempt order should be issued.

52-16-01 RIGHT OF RELIEF NOT AFFECTED BY PETITIONER/VICTIM LEAVING THE RESIDENCE OR USING NECESSARY FORCE FOR DEFENSE

52-16-02 The petitioner/ victim right to protection under this chapter shall not be affected if the petitioner/victim leaves the residence or household to avoid abuse.

52-16-03 The petitioner/victims right to protection under this chapter shall not be affected if the petitioner/ victim uses such physical force against the respondent/ abuser as is reasonably believed necessary to defend the petitioner/victim or another person from imminent physical injury or abuse.

52-17-01 SEVERABILITY
If any clause, sentence, paragraph, section, or part of this code shall, for any reason be adjudicated by any Court of competent jurisdiction, to be invalid or unconstitutional, such judgement shall not affect, impair, or invalidate the shall be confined in its operation to paragraph, section, or part thereof directly involved in the controversy in which the judgement shall have been rendered.

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