Alaska News

Attorney general says tribal protective orders must be enforced

The Walker administration is making a sharp turn toward more recognition of tribal rights in civil cases where someone is seeking protection from domestic violence, stalking or sexual assault.

Alaska Attorney General Craig Richards in an opinion issued Thursday said that law enforcement officers must enforce tribal protective orders just as if they came from an Alaska court. That includes arresting accused abusers who violate orders to stay away, the opinion said.

Under the Parnell administration, law enforcement officers did enforce tribal orders but required them to be registered in state court. It's an extra step for victims in crisis as well as for tribal courts, which in remote villages may be far from a state courthouse. The state has allowed tribal courts to fax the orders, at least recently.

If a victim was in imminent danger, however, officers could intervene even if the order wasn't formally filed with the state.

Richards examined the matter after Public Safety Commissioner Gary Folger asked how the 1994 federal Violence Against Women Act, known as VAWA, affected domestic violence protective orders.

The federal law says jurisdictions must give "full faith and credit" to one another's protective orders, including tribal orders, even if they aren't registered and even if a state requires registration.

That overrides a state law requiring registration of protective orders in state court, according to the opinion signed by Richards and four other state attorneys.

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The attorney general recommended the Legislature rewrite the state law to bring it in line.

"But regardless of whether that occurs, the State must enforce unregistered tribal and foreign protection orders as though an Alaska court has issued them," the opinion said.

Tlingit-Haida tribal judge David Voluck said the state's history of pushing against tribal courts "created a lot of uncertainty."

Through his region's tribal family safety court that began about 2½ years ago, about 20 protective orders a year were issued -- and registered, he said. Tribes shouldn't have to do that, but as a practical matter it didn't make sense to fight over that issue, he said.

"God forbid somebody dials 911 and they are relying on your order and you take a position that might be right, but that leads to delay or confusion," said Voluck, who hears cases in Sitka and Juneau as well as through a "telejustice" remote system.

Broad acceptance of protective orders is intended to keep victims safe at the most dangerous time, when they are trying to leave an abusive relationship, said Sarah Deer, law professor at William Mitchell College of Law in Minnesota who last year was named a MacArthur Fellow for her work to protect Native women from sexual violence.

Women shouldn't have to get a new protective order every time they move or travel, she said.

The new Alaska opinion is consistent with the 21-year-old law, she said.

"I'm just kind of flabbergasted this hasn't been understood before because it has been on the books for so long," she said.

In fact, Tony West, then the U.S. associate attorney general, told the Parnell administration a year ago that the state's requirement for registration was "inconsistent with federal law."

Then-state Attorney General Michael Geraghty had told him that if the tribal order wasn't filed in state court, troopers ordinarily wouldn't recognize it or enforce it by making an arrest, West wrote in a July 28, 2014, letter back to Geraghty. West offered to help bring Alaska law enforcement into compliance.

Protective orders typically contain provisions to keep suspected abusers and stalkers away from victims' homes, places of work, children's schools and the like. Under state law, violating those restrictions amounts to a crime. Violators can be arrested.

"The troopers have always acted to secure the scene and protect victims in an emergency, but previously the understanding was that tribal or foreign protection orders had to be registered with a local state court before the officer could enforce the order," Jacqueline Schafer, an assistant attorney general and the lead co-author of the opinion, said in an email.

To enforce a tribal order, a victim simply needs to show a law enforcement officer the piece of paper, Deer said. But the system isn't perfect in other states either. Police may resist enforcing an unfamiliar order or challenge whether a tribal hearing was fair to all, she said.

If the order includes all required information, an officer who enforces it in good faith has immunity from accusations of false arrest, she said.

Officers in Kentucky, bordered by seven states, were struggling with many different formats for protective orders. A simple fix came when all the states agreed on a uniform, easy-to-recognize cover sheet, she said.

Some Lower 48 jurisdictions still tell women to get a protective order from both tribal and state court.

"At the end of the day the issue is safety," Deer said. "If there's a woman who's in danger and they say it's better to register that order or get a second protection order, she should do that to stay alive."

Lisa Demer

Lisa Demer was a longtime reporter for the Anchorage Daily News and Alaska Dispatch News. Among her many assignments, she spent three years based in Bethel as the newspaper's western Alaska correspondent. She left the ADN in 2018.

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