Sharing Our Stories of Survival: Native Women Surviving Violence (49 page)

T
he above scenario has been a common occurrence for many women who are victims of domestic violence. In 1994, the U.S. Congress addressed this problem through the Violence Against Women Act (VAWA), which included new federal laws about protection orders and full faith and credit (FFC). This chapter provides an introduction to the federal law, and how it can work to improve the situation for women who are seeking safety.

Introduction: What Is Full Faith and Credit?

The phrase “full faith and credit” can be confusing for nonlawyers. “Full faith and credit” is a legal phrase meaning that a legal document from one jurisdiction will be acknowledged as valid and enforced in another jurisdiction. In the legal phrase, “faith” does not refer to religion and “credit” does not refer to money.

The concept of full faith and credit is not new. Perhaps the most common example of full faith and credit in practice is in your wallet right now. If you drive from California to New Mexico, you do not have to stop in Arizona and then in New Mexico to get new driver’s licenses. Your driver’s license is valid and enforceable throughout the country and in many other countries as well. If you get married in California and later move to Washington state, you do not have to get married again in Washington state. If you then get divorced in Washington state and move to North Dakota, you do not have to get divorced again in North Dakota. These are all examples of full faith and credit in action between states.

Traditionally, the concept of full faith and credit has been limited to state governments. The U.S. Constitution specifically addresses the issue in Article IV, Sec. I:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof

Despite the full faith and credit clause in the U.S. Constitution, many states historically failed to recognize or enforce protection orders from other states or tribes. Although the states were enforcing other types of orders from other states, domestic violence protection orders were a relatively new type of order. European Americans had long considered domestic violence a private matter and were very slow to accept the new trend of state intervention.

Full faith and credit in the context of violence against women and protection orders is far more complex than in the context of driver’s licenses, marriage certificates, or divorce decrees. As with most topics in federal Indian law,
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full faith and credit in the context of violence against Native women is even more complex.

One tool for addressing violence against Native women is to use full faith and credit to help build a flawless safety net that bridges across all jurisdictional boundary lines. In building this net, tribal nations reaffirm their sovereignty, affirmatively acting to protect all women, including Native women. Wherever that net is in place, survivors of domestic violence and stalking can travel, taking their protection orders with them for safety.

Violence Against Women Act and Full Faith and Credit

In 1994, the U.S. Congress enacted the Violence Against Women Act (VAWA). VAWA is a series of federal laws designed to protect all women in the United States from domestic violence, dating violence, stalking, and sexual assault. Although VAWA is a single act, it is actually
codified
in various places throughout the federal code. In 2000, and again in 2005, Congress made significant changes and amendments to VAWA.

Two provisions included in the original VAWA and amended in 2000 and 2005 relate specifically to enforcing protection orders across jurisdictional lines. The first is the federal definition of “protection order” found at 18 U.S.C. § 2266(5). The second is the full faith and credit provision, with several subsections found at 18 U.S.C. § 2265.

VAWA and its full faith and credit provisions are federal laws. In the U.S. Constitution there is a clause that says whenever the states have laws that differ from federal law, the federal law “trumps” or supersedes that inconsistent state law. That clause reads:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
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This clause is called the “Supremacy Clause” because it declares the U.S. federal Constitution, and all federal laws and treaties, to be the “supreme law of the land.” Lawyers and professors disagree about whether the Supremacy Clause also applies to tribal governments. Since tribal nations are separate sovereigns with their own constitutions, many experts believe that the U.S. Constitution does not apply directly to tribal governments. However, a line of U.S. Supreme Court cases dating back to 1896 have established the idea that Congress has “plenary power” to regulate Indian affairs.
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According to the Supreme Court, Congress can enact certain kinds of laws to limit tribal nations’ sovereign powers of self-governance and has done so several times. Therefore, most scholars of the VAWA view the act as binding law for tribal governments as well as state governments.

Defining “Protection Order”

The definition of a “protection order” under the VAWA is very broad.

The term “protection order” includes

(A) any injunction, restraining order, or any other order issued by a civil or criminal court for the purpose of preventing violent or threatening acts or harassment against, sexual violence, or contact or communication with or physical proximity to, another person, including any temporary or final order issued by a civil or criminal court whether obtained by filing an independent action or as a pendente lite order in another proceeding so long as any civil or criminal order was issued in response to a complaint, petition, or motion filed by or on behalf of a person seeking protection; and

(B) any support, child custody or visitation provisions, orders, remedies or relief issued as part of a protection order, restraining order, or injunction pursuant to State, tribal, territorial, or local law authorizing the issuance of protection orders, restraining orders, or injunctions for the protection of victims of domestic violence, sexual assault, dating violence, or stalking.
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Notice first that the definition says “any
injunction,
restraining or other order.” The order does not have to be called a “protection order” or “restraining order” or “no contact order.” The definition is broad enough to include all orders, regardless of what they are called, so long as they were issued to prevent violence, threats, sexual violence, harassment, contact, communication, or physical proximity to any other person. The person the order protects does not have to be married to or dating the person subject to the order. The order may be temporary, as with an
ex parte order
or emergency order. The order also may be of a limited duration, for example, one year, or the order may be permanent or good for the life of the protected party. The protected party could have gone before a court to ask for a protection order, or the judge may have issued the order on his or her own as part of an ongoing criminal case. So, temporary or final, civil or criminal, “a rose by any other name,” it is a “protection order” under the VAWA.

The Full Faith and Credit Provision of the VAWA: § 2265(a)

The VAWA full faith and credit provision reads:

Full Faith and Credit—Any protection order issued that is consistent with subsection (b) of this section by the court of one State, Indian tribe or territory (the issuing State, Indian tribe or territory) shall be accorded full faith and credit by the court of another State, Indian tribe or territory (the enforcing State, Indian tribe or territory) and enforced by the court and law enforcement personnel of the other State, Indian tribal government or Territory as if it were the order of the enforcing State or tribe.
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The VAWA defines “State” to include, “a State of the United States, the District of Columbia, and a commonwealth, territory, or possession of the United States” in 18 U.S.C. § 2266(8).

Interestingly, the term “Indian tribe” is not clearly defined in 18 U.S.C. § 2265. Most experts agree that the term refers to federally recognized tribal governments.

As long as a protection order, as defined under 18 U.S.C. § 2266(5), is consistent with the requirements of 18 U.S.C. § 2265(b), federal law requires that it must be given full faith and credit and enforced by the courts and law enforcement officers of another state or tribe. For example, if a Passamoquoddy tribal court enters a lifetime protection order against a non-Native man to protect a Native woman, a Maine state court must enforce that order as long as the order meets the basic requirements for fairness set out in the next subsection of the full faith and credit law.
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What Are the Requirements of § 2265(b)?

In order to be entitled to full faith and credit and be enforced in another jurisdiction, a protection order must satisfy some basic requirements. The statute reads:

Protection Order—A protection order issued by a State or tribal court is consistent with this subsection if—

(1) such court has jurisdiction over the parties and matter under the law of such State, Indian tribe or territory; and

(2) reasonable notice and opportunity to be heard is given to the person against whom the order is sought sufficient to protect that person’s right to due process. In the case of ex parte orders, notice and opportunity to be heard must be provided within the time required by State, tribal or territorial law, and in any event within a reasonable time after the order is issued, sufficient to protect the respondent’s due process rights.
⁷

The first part of this subsection means that a state, tribal, or territorial court had to have the power, according to that state, tribe, or territory’s laws, to issue a protection order concerning those people named in the order. For example, a bankruptcy court might not have power to issue a domestic violence protection order, but a court of general jurisdiction probably would. Courts generally have jurisdiction over the people (or the “parties”) if both have some sort of connection to the state, tribe, or territory. However, there are some challenges regarding tribal jurisdiction over nonmembers and non-Indians (see chapter 14).

The second part of this subsection says that the person subject to the order also had to have had advance notice that the order would be entered and an opportunity to be heard to argue why the court should not issue the order. Due process is a legal term that refers to the requirement that courts treat people fairly. This requirement of notice and opportunity to challenge the order serve to protect the due process rights of the person subject to the order. If the order is issued on an emergency basis or ex parte, meaning that only one of the parties is present, then the person subject to the order must have an opportunity to contest the order within a reasonable period of time after the emergency order is issued. Typically the time frame is about ten to twenty days after the order, but this varies widely from one jurisdiction to another. This protects the due process rights of the person subject to the order.

No “Mutual” Protection Orders!

What about the due process, or basic fairness rights, of the person who sought protection from abuse in the first place? A widespread problem nationwide can be illustrated by the following example.

Penny goes to court and fills out a written petition for a protection order asking the court to help protect her from further threats or acts of violence by her boyfriend, Ron. The court issues a temporary protection order and sets a date for Penny and Ron to come back to court two weeks later so the judge can decide whether to issue another order for a longer amount of time. In the meantime, a law enforcement officer serves Ron with a copy of the temporary protection order and the petition Penny wrote out to the judge. The officer tells Ron that he has to go to court to see the judge in two weeks if he does not want the temporary order extended or a new order issued against him.

Two weeks later Penny and Ron both appear before the judge as scheduled. The judge reads over Penny’s written petition again, and then asks Ron a question. Ron tells the judge that Penny is exaggerating and that she is the one who is really violent in their relationship and that she throws things at him and has even slapped him across the face in the past. The judge, frustrated and thinking about the twenty other domestic violence hearings she has that morning, says, “It sounds like you’re both acting violently and immaturely in your relationship. I’m issuing an order that neither of you is to communicate with the other in any way. You can pick up a copy of the order with the clerk’s office. Next case!” What this judge has just done is issue a “mutual protection order.” That is, it is an order that contains cross-relief
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against both of the parties, the
Petitioner,
Penny, and the
Respondent,
Ron. It would not be a mutual order if Penny obtained one order from one court and Ron obtained another order from another court. In that case Penny and Ron would have two competing orders, rather than one mutual protection order. In one of the competing orders Penny would be the Petitioner and Ron would be the Respondent. In the other, Ron would be the Petitioner and Penny would be the Respondent.