Law enforcement must uphold tribal protection orders the same as state protective orders, whether the order has been registered with the state or not, the attorney general announced in an opinion Thursday. Attorney General Craig Richards also encouraged the legislature to amend state law to comply with the Violence Against Women Act.
“I’m very excited to see this,” says Richard Peterson, president of the Tlingit-Haida Central Council. “I think it’s a step in the right direction in rural, tribal justice. It’s going to really, I think, have great impact and effect on our tribal court system and will have a great impact on tribal courts.”
Peterson says Tlingit and Haida is looking forward to more positive action from the Walker administration on tribal issues such as putting land into trust and transboundary mining.
The attorney general says the Violence Against Women Act clearly supersedes Alaska’s conflicting law requiring registration of tribal court and so-called “foreign” protection orders. The opinion basically affirms VAWA’s provision that tribal court and out-of-state protective orders need not be registered with the state to be enforced — a provision with which the Parnell administration refused to comply.
Nick Gasca, a lawyer for the Tanana Chiefs Conference based in Fairbanks, says the opinion is an indication of the thawing relationship between the state and Alaska tribes.
“This again no doubt reflects his position that with applicable law — instead of fighting tribes at every case, despite the fact that the law says otherwise, at least in this case — that he’s moving forward to correct the department’s previous position and reconcile relationships with tribes,” Gasca says.
The provision in VAWA requiring states to honor protective orders issued by other states and tribes was included when the act was first passed in 1994. When Congress reauthorized the act in 2013, a disagreement between the state and the Department of Justice regarding the validity of unregistered protective orders intensified.
In a December 2013 letter to the Indian Law and Order Commission, then-Attorney General Michael Geraghty said that while tribal court protective orders must be registered with the state to be enforceable, Alaska State Troopers could — “without the formality of State court registration” — choose to enforce the order if “confronted with an emergency or tense situation.”
After a June 2014 meeting with Tony West — then an associate attorney general with the Department of Justice — Geraghty sent a follow-up letter listing things the federal government could do to “help address public safety issues affecting Alaska Natives” and Native youths. The letter requested more funding for tribal courts, prevention efforts and support for village public safety officers, among other things.
About a month later West responded to Geraghty’s letter. He acknowledged Geraghty’s suggestions, but focused on how Alaska’s law requiring registration of tribal protective orders directly contradicted federal law. West offered to discuss a way to bring Alaska into compliance and offered training on the provisions of VAWA.
Jacqueline Schafer, an assistant attorney general with the State of Alaska, says the opinion intentionally doesn’t address the sticky issue of tribal jurisdiction. The opinion also makes clear that officers can enforce tribal court directives that are clearly intended to be protective orders. Tribal court orders aren’t necessarily standardized.
“It’s really just saying that as long as the order is clear that the issuing court says that it had jurisdiction and that they provided due process and that the order meets the requirements of VAWA, then the officer will enforce that order on the ground. It doesn’t matter if the order was registered or not,” Schafer says.
She says there is no set protocol for a situation in which a victim claims to have a tribal protection order, but doesn’t have a copy of it on hand and hasn’t registered it with the state. Schafer says she could imagine the officer simply contacting the tribal court in that case to ensure that the order exists.
“That would be an easy resolution but it would be most protective (for) the victim to have the order registered with the state court, and that’s a fairly simple process, you just fax the order to the state court,” she says.
The opinion does mention that orders must meet the requirements of VAWA in order to be valid. One condition is that the order must provide the other party due process. The opinion also points out, however, that the U.S. Supreme Court has indicated a tribal court’s obligation to provide due process does not mean tribal courts must use the same procedures as state or federal courts. What constitutes due process could be a point of contention for someone who wants to challenge a protective order issued against them, but Schafer says this area of the law is also to be determined.