Tribal protective orders given equal enforcement

Alaska law enforcement officials must respond to tribal protective orders in the same way they would those issued by the state, according to an opinion released by the Attorney General last week.

The Alaska Department of Law released the opinion published by Attorney General Craig Richards on July 30 that clarified how Alaska State Troopers ought to handle tribal and other protective orders related to domestic violence not issued by the state. The opinion came at the request of Commissioner of Public Safety Gary Folger to clear up confusion between state and federal law.

Alaska statute states that law enforcement officers cannot enforce a protective order from an entity other than the state unless the order is registered in the Alaska Court System. However, the federal Violence Against Women Act, passed in 1994 and reauthorized in 2013, requires enforcement officers to enforce a protective order from a tribe “as if it were the order of the enforcing State.”

In his opinion, Richards declares that VAWA pre-empts the state legislation, requiring troopers to enforce tribal protective orders to the same degree they would state orders, including arrest of the violator. The main clarification of the opinion is that officers must enforce tribal protective orders even if they are not registered.

“Alaska’s statutes requiring the registration of tribal and foreign protection orders before enforcement are void and without effect,” the opinion reads.

Assistant Attorney General Jackie Schafer said the opinion will help troopers handle protective order violations with less confusion.

“I think it’s been a lingering question … as to how the troopers on the ground should treat tribal protection orders,” Schafer said. “It should make it easier because before, it wasn’t exactly clear what to do if a tribal order was presented and it wasn’t registered. It really removes a lot of ambiguity.”

The opinion, while helpful for enforcement officers, won’t require a large change in the way the local Kenaitze Tribal Court operates. Chief Tribal Judge Kim Sweet said the court has been in the habit of registering all the protective orders it issues with the Alaska Court System so that troopers could enforce them without hesitation.

“There hasn’t been any confusion around it (the law), and the reason is because we did our homework,” Sweet said. “We weren’t willing to risk anybody’s life over a protective order.”

Sweet said the Kenaitze Tribal Court will likely continue registering all the protective orders it issues with the Alaska Court System, just in case.

The tribe’s proximity to the Kenai Courthouse, and the ease with which the tribal court can register its protective orders, is a situation not all Alaska tribal groups enjoy, Sweet said. The Attorney General’s opinion will be “really beneficial” to tribes in more rural areas without easy access to Alaska’s court system, she said.

“The court has always worked with us,” Sweet said. “It’s pretty easy for us to walk across and get our orders registered … not all villages in the state of Alaska have that convenience. Not all of them have access to fax machines.”

In order for a tribal protective order to be enforced by state law officers, it must follow the provisions set forth in VAWA. This means the entity or tribe must have jurisdiction where the order was issued, and it must follow due process of law when it comes to giving the respondent of the protective order notice and opportunity to be heard.

Sweet said the Kenaitze Tribe has exclusive jurisdiction when it comes to issuing protective orders, and that due process is followed.

In some cases, the state has the option to review a tribal protective order to make sure it follows both of these provisions, according to the opinion.

Sweet said Kenaitze Tribal court protective orders have not traditionally been checked for due process, and Schafer said she is not sure what the likelihood of a tribal protective order failing that kind of review would be.

“That’s something that’s going to be an evolving question as the state looks at its policies,” Schafer said. “Either way, the trooper on the ground is going to act to contain the scene.”

Schafer said the Attorney General’s opinion took months of analysis and review of case law on the subject.

Kenai Police Chief Gus Sandahl said his department rarely deals with tribal protective orders. He said in the event an officer with the Kenai Police Department is faced with a tribal protective order, he or she would contact the Kenai Courthouse if there were any doubts about how to enforce it.

Reach Megan Pacer at megan.pacer@peninsulaclarion.com.

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