FAQs on State Enforcement of Tribal Court Protective Orders

What is a protective order?

Under federal law, a protective order is any injunction, restraining order, or any other order issued by a civil or criminal court for the purposes of preventing violence and includes any support, child custody or visitation provisions, orders, remedies, or relief issued as part of a protection order pursuant to state, tribal, territorial, or local law.  In other words, it is an order from a State or Tribal court restraining one individual’s actions for the purpose of preventing violence against another. 

Can a tribal court issue a protective order against someone who is not a member of their tribe or someone who is not currently living in the village?

In some circumstances a tribal court may be able to issue a protective order against a non-member outside of their village. Whether a tribal court has jurisdiction over an individual will depend on several factors, including where the previous acts of violence occurred, whether the victim or abuser is a member of the tribe, and the laws of the individual tribe.

Will the state serve tribal protective orders?

Service of a tribal protective order by the State is not required under state or federal law. As a general policy, AST will not serve Tribal Protective Orders and a tribal court should not expect to rely on trooper service. However, if (1) the order has been sent to the troopers, (2) a trooper has contacted the individual for another reason, and (3) the trooper knows that the order has not been served, the trooper will effectuate service at that time. This requires that the line trooper has knowledge of the order and its service status at the time of contact. For information on how to submit orders to the Troopers contact Darlene Dye, AST Tribal Liaison, Darlene.dye@alaska.gov.

Will the Alaska State Troopers provide stand-by assistance related to a tribal court domestic violence protective order?

A stand-by order is a court order authorizing law enforcement to go with a victim to retrieve belongings from an abuser’s home to ensure the victim’s safety. The Alaska State Troopers are not required by state or federal law to provide stand by assistance for a tribal court order. However, where the local post has the available staffing and time to accompany a victim in this situation, they will do so to further protect that victim so long as the order is related to protecting a victim of domestic violence, sexual assault, dating violence, or stalking.

Who can enforce a protective order issued by a tribal court?

Both the issuing tribe and the State can enforce a tribal court protective order. However, there are limitations in enforcement by either entity. A tribe may not criminally enforce a protective order issued against a non-Indian unless granted special tribal criminal jurisdiction under the Violence Against Women Act. This special tribal criminal jurisdiction allows select Alaska tribes to exercise criminal jurisdiction over non-Indians in crimes of domestic violence. No tribe within the State currently has special tribal criminal jurisdiction. The State can only enforce a protective order through means that would otherwise be consistent with Alaska law.

What does state criminal enforcement include?

Under Alaska Law, it is a criminal offense to knowingly commit an act with reckless disregard that the act violated a protective order. This means an individual must know about the order (i.e. service), the act occurred while the order was in effect (after issuance but before its expiration) , and the act violated a provision that:

1. prohibits the respondent from threatening to commit or committing domestic violence, stalking, or harassment;
2. prohibits the respondent from telephoning, contacting, or otherwise communicating directly or indirectly with the petitioner;
3. removes and exclude the respondent from the residence of the petitioner, regardless of ownership of the residence;
4. directs the respondent to stay away from the residence, school, or place of employment of the petitioner or any specified place frequented by the petitioner or any designated household member;
5. prohibits the respondent from entering a propelled vehicle in the possession of or occupied by the petitioner;
6. prohibits the respondent from using or possessing a deadly weapon if the court finds the respondent was in the actual possession of or used a weapon during the commission of domestic violence;
7. directs the respondent to surrender any firearm owned or possessed by the respondent if the court finds that the respondent was in the actual possession of or used a firearm during the commission of the domestic violence;

The violation of a protective order in state court is a misdemeanor offense. This means that an individual can be arrested, criminally prosecuted, and sentenced to up to 1 year in jail.

What must a tribal court order include to be enforced by the state?

The state cannot enforce protective orders that are not facially valid. To be facially valid an order must contain: (1) the names of the parties, (2) the date the order was issued, (3) an expiration date, (4) the name of the issuing court, (5) the signature of a judicial officer or other designated person, (6) specify the terms and conditions and (6) those orders must be similar to those listed in AS 18.66.100(c)(1)-(7) (see previous answer). If any of these are missing, the order is not enforceable by the state.

Are there tribal court orders that the state could not criminally enforce?

Yes. It is only a criminal violation under Alaska law if the order is a protective order as defined under Alaska Law. This means that stand alone custody orders or banishment orders are not enforceable as the offense of violation of a protective order. However, if the conduct is a violation of some other criminal offense, such as assault or trespass, a state police officer could arrest an individual for those offenses.

What constitutes a banishment order?

A banishment order is an order – whether standalone or contained within another order such as a protective order – that restricts an individual from being present within an entire village. A banishment order may include language like, “X may not be present within the village,” or “X is excluded from the village,” or similar language. These are express banishment orders and cannot be enforced by the State of Alaska as they violate the Alaska Constitution. This does not mean that the tribe’s decision to exclude violates tribal law, only that the state cannot enforce the order under state law without violating the individual’s rights.
Orders or conditions that are a de facto banishment are also unenforceable. De facto banishment is a broad no-contact provision or proximity term that effectively prevents the abuser from living in the village. Whether a provision is an unenforceable de facto banishment is necessarily a case-by-case analysis and includes factors like the village’s layout and the size of exclusion zone. An exclusion order will be enforceable by the state if it is limited to (1) a reasonable length of time; (2) reasonable exclusion of an individual from specific locations (e.g. buildings, parks, limited perimeters around certain addresses) within a village, and (3) the restrictions are reasonably related to keeping safe an identified person whom the tribal court has determined is threatened by the excluded individual’s presence.

What if a tribal court protective order includes a banishment provision along with other provisions?

The state would be unable to enforce the banishment provision. However, all other valid provisions would remain enforceable, assuming they are substantially similar to AS 18.66.100 as discussed above. In other words, one unenforceable provision does not mean the entire order is not enforceable.

What can a tribal court do to ensure state enforcement?

 A tribal court can include any condition they would like in an order so long as it is allowable under the tribal laws. This includes banishment or broad exclusion orders. However, if a tribal court would like to ensure state enforcement of an exclusion order, the court is encouraged to speak with the local trooper post. The local post will discuss the factual situation with its chain of command and provide the state’s position on a proposed order so that the tribal court can take that into account when finalizing their orders.

Who can a tribal court or petitioner contact if a protective order is not being enforced by the state?

It is recommended that the issue be escalated through the Department of Public Safety, or other police department, and the agency’s chain of command. This means that if a line trooper or other police officer has already declined to enforce a protective order, an individual should request to speak to their supervisor. Line troopers routinely confer on these issues with their supervisors, so they are likely already familiar with the situation, and will loop in the Department of Law if necessary. Contact information for each Trooper Detachment can be found on the Department of Public Safety’s website. The chain of command for the Alaska State Troopers is Detachment Commander < Lieutenant < Sergeant < Line Trooper: