Approved Ordinances for the Te-Moak Tribe of Western Shoshone
Last amended: 2003
TITLE 17 - DOMESTIC VIOLENCE
See the enacting ordinance below.
Chapter 1. General Provisions
Section 17-1-1. Policy
It
is hereby declared as a matter for the Te-Moak tribe's policy and legislative
determination that the public interest
and the interests of the Bands of the Te-Moak Tribe demand that the
Bands provide itself, its members and other persons living within the
territorial jurisdiction of the Bands with an effective means of preventing
acts of domestic violence and of affording judicial protection and relief
to those who are the victims of domestic violence.
Section 17-1-2. Definitions
(1) Domestic abuse: "Domestic abuse "means the intentional and unlawful infliction of physical harm, bodily injury, assault, or the intentional and unlawful infliction of the fear of imminent physical harm, bodily injury, or assault between family or household members, or a criminal sexual act in violation of this code committed against a family or household member by another family or household member.
(2) Harassment: "Harassment" means repeated intrusive, or unwanted acts, words, or gestures that are intended to adversely and unlawfully affect the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target.
(3) Family or household member: "Family or household member" means spouses, former spouses, parents and children, persons related by blood within the second degree of consanguinity and affinity, persons who have a child in common regardless of whether they have been married or have lived together at any time, and any other persons who are presently residing together or who have resided together in the same household within the past two (2) years. "Family or household member" also includes a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time.
(4) Complainant: "Complainant" means the victim or intended victim of the domestic abuse and/or harassment or, in the case of a minor victim or intended victim, the "complainant" means the parent, guardian or legal or physical custodian of the minor as well as said minor, without regard to whether or not said "complainant" is the person who actually signed the criminal complaint.
(5) Actor: "Actor" means the person alleged in a citation, criminal complaint, petition, motion or other pleading to have committed an act of domestic abuse and/or harassment or who has been named as a respondent in either a state or tribal court domestic abuse and/or harassment proceedings.
(6) Order for protection: "Order for Protection" means any order issued by the Court of Indian Offenses pursuant to this Chapter or any similar order issued by a state or other tribal court having competent jurisdiction over the parties and the subject matter, provided that a certified copy of such state or other competent court order has been filed with the Clerk of the Te-Moak Court of Indian Offenses together with an affidavit or personal service of the same upon the respondent named therein.
Section 17-1-3. Jurisdiction
(1) The Te-Moak Court of Indian Offenses shall have civil jurisdiction to issue temporary and/or permanent restraining orders in all domestic abuse and harassment proceeding arising within the territorial jurisdiction of the tribe whenever either the actor or the Complainant is an Indian person.
(2) The Te-Moak Court of Indian Offenses shall also have jurisdiction to hear any proceeding seeking to enforce, modify, enlarge or limit the provisions of an existing order for protection issued by any other state or tribal court having competent jurisdiction over the parties and subject matter, provided that:
(a) A certified copy of said state or tribal court order has been previously filed with the Clerk of the Te-Moak Court of Indian Offenses;(b) A copy of the same has been personally served upon the respondent (defendant) named therein, and
(c) The scope of Te-Moak Court of Indian Offenses proceedings is limited either to alleged violations which have occurred or to matters which may take place, within the boundaries of Te-Moak Tribe.
Section 17-1-5. Order for Protection
(1) The court may, after a hearing upon an application setting forth allegation of domestic abuse and/or harassment and being satisfied by a fair preponderance of the evidence presented in support of said petition, complaint or motion that said allegations are true, issue either a temporary or permanent restraining order:
(a) Enjoining the actor from committing any act of domestic abuse and/or harassment against the victim or victims;(2) The court may at any time after the filing with the Clerk of the Te-Moak Court of Indian Offenses an application and upon a finding by the court that said application sets forth probable cause that the alleged domestic abuse and/or harassment has in fact taken place and, upon a further finding that such a restraining order is reasonably necessary to ensure the safety and security of the complainant, issue an ex parte temporary restraining order:(b) Enjoining the actor from having any contact with the victim or victims;
(c) Enjoining the actor from being at or in proximity to the dwelling or residence or the victim or victims;
(d) Establishing and/or restricting temporary custodial and visitation rights of and with the minor children, if any, of the parties;
(e) Providing for the temporary support of the minor children, if any, of the parties,
(f) Requiring the actor to undergo evaluation to determine the need, if any exists, for counseling and treatment for anger control, substance abuse, chemical dependency, parenting, marriage, or any other form of counseling and treatment which may be reasonably required to correct the conditions which gave rise to the incident (s) of domestic abuse and/or harassment, and
(g) Requiring the actor to complete the treatment program (5) recommended by the evaluation, if any is recommended, and have a copy of completion submitted to the court.
(a) Enjoining the actor from committing any acts of domestic abuse and/or harassment against the victims or victims.(b) Enjoining the actor from having any contact with the victim or victims;
(c) Enjoining the actor from being at or in close proximity to the dwelling or residence of the victim or victims, and
(d) Requiring the actor to appear before the court to respond to the allegations contained in said application at a hearing set for the purpose.
(3) The court may make any further orders as are just and reasonable and as it seems necessary to secure compliance with its orders.
(4) An ex parte temporary restraining order shall remain in effect for a period not to exceed fourteen (14) days or until the next session of the Court, if sooner held, unless otherwise extended for good cause by an order as provided herein.
Section 17-1-6. Application for Order for Protection
(1) Any person who is a victim or intended victim of domestic abuse and/or harassment or who is the parent, guardian or custodian of a minor victim or intended victim, or who is the legal guardian incompetent victim or intended victim, in a writing setting forth the allegations of domestic abuse and/or harassment and in a form approved by the tribal court and sworn to before a notary public or before the Clerk of Te-Moak Court of Indian Offenses, may apply for an order for protection pursuant to this section.
(2) The Tribal or BIA Police Officer, acting upon behalf of the tribe, may also apply for an order for protection in the same manner as set forth above and in such circumstances where he reasonable believes that the same is necessary for the safety and well-being of a victim or intended victim or intended victim who is a minor and whose parent, guardian or other custodian has unreasonable failed or refused to seek such an order. In such an event, the application shall fully set forth the factual basis for the requested action.
Section 17-1-7. Conspicuous Notice
A Court order granted under this section, or any state or tribal court order filed pursuant to this section, must contain a conspicuous notice to the respondent named therein of the specific conduct that will constitute a violation of the order, that violation of the order is a misdemeanor, and that a peace officer must arrest without warrant and take into custody a person who the peace officer has probable cause to believe has violated a restraining order.
(1) Copy to law Enforcement Agency. A certified copy of an order for protection granted pursuant to this section or an order for protection issued by a state or other tribal the Clerk of the Te-Moak Court of Indian Offenses pursuant to Section 17-1-3, (2), herein shall be forwarded by the Clerk of the Te-Moak Court of Indian Offenses within twenty-four (24) hours to the tribal or BIA Police.
Section 17-1-8. Hearing and Notice Thereof
(1) Upon the filing of an application seeking an order for protection pursuant to this section, upon the granting by the Te-Moak Court of Indian Offenses of an ex parte order for protection, or upon the request of any party to an order for protection issued by a state or other tribal court and filed with the Te-Moak Court of Indian Offenses pursuant to Section 17-1-3, Subdivision (2), the Clerk of the Te-Moak Court of Indian Offenses shall schedule a hearing to be held upon the merits of the application, the need for the continuance of the ex parte order, or the need for the continued enforcement or to modify, enlarge or limit the state or other tribal court order for protection, as the case may be.
(2) The hearing shall be held within fourteen (14) days of filing of said papers or at the next scheduled hearing of the court, whichever occurs sooner, unless said time period is otherwise extended for good cause.
(3) The respondent, the applicant, the complainant and/or victim(s), the tribal or BIA Police, the tribal prosecutor and the Tribal Health Services shall each be served with written notice of the time and date such hearing will be held. Such service shall be made in the same manner as service of summons and notice is otherwise provided herein.
(4) The hearing shall be conducted in an informal manner as a civil proceeding and factual finding shall be made by the court a jury.
(5) The burden of proof shall be upon the applicant who shall be represented, if so requested, by the tribal prosecutor.
(6) The respondent shall be have the right to be represented by counsel of his/her own choosing and at his/her own expense.
(7) The court may order the hearing to be continued upon the request of the respondent for the purpose of allowing the respondent to obtain counsel or to prepare for his/her own defense. In such an event, the court shall extend the time period of any order it has previously issued and may issue such new order(s) enlarging, modifying or altering the existing order as the fact and circumstances may justify.
(8) The respondent may either admit or deny the allegations contained in the application. Should the respondent deny the allegations, the court may then and there proceed to hear testimony and accept evidence unless the either of the parties request a further continuance and the court is satisfied the such a continuance is reasonable and necessary under the circumstances.
(9) Both parties may call such witness and offer such evidence as is deemed by the court to be relevant to the proceedings. The subpoena powers of the court shall be made fully available without restriction to both parties.
(10) Upon conclusion of the hearing the court shall makes its findings and conclusions and enter its judgment either dismissing the proceedings or issuing a permanent order for protection.
(11) Either party may subsequently move the court for an order dismissing, modifying, enlarging, extending or otherwise altering the terms of the order for protection previously issued. No such motion shall be granted or denied until a hearing has been held before the court to which all parties have been summoned or noticed to appear.
Section 17-1-9. Mandatory Arrest
(1) A police office shall arrest and take into custody any person whom the officer has probable cause to believe has committed an act of domestic abuse.
(2) A police officer shall arrest and take into custody any person whom the officer has probable cause to believe has violated an order for protection restraining the person from contact with the victim or excluding the person from the dwelling or residence of the victim if the existence of the order is verified by the officer.
(3) No person arrested and taken into police custody pursuant to this subdivision shall be released except upon Order of the Court before whom the person so arrested shall be promptly arraigned.
Section 17-1-10. Prohibited Acts
(1) Whoever intentionally violates any provision of an order for protection issued by or filed with the Te-Moak Court of Indian Offenses of conformity with this Chapter is guilty of a misdemeanor and, upon conviction, may be sentenced to incarceration for a period not exceeding thirty (30) days or payment of a fine not exceeding Two Hundred Fifty Dollars ($250.00), or both.
(2)
Whoever, after having been previously convicted of a violation of this
Chapter within one (1) year prior to a second or subsequent offense
or, having been previously convicted on two (2) or more occasions within
five (5) year prior thereto, intentionally violates any provision of
an order for protection issued by or filed with the Te-Moak Court of
Indians offenses in conformity with this Chapter is guilty of a misdemeanor
and upon conviction (may be sentenced to incarceration for a period
of one (1) year or payment of a fine not exceeding Five Thousand Dollars
($5,000.00), or both.
Chapter
2. Amendment
Section 17-2-1. Amendments This Ordinance may be amended by a majority vote of the Tribal Council members at a duly called and held meeting.
1. Provided that the Tribal Council shall deliver, by personal service or return receipt mail, the proposed amendment to this Ordinance to each Band Council office for review and comment by the Band, at least ten (10) days but no more than forty-five (45) days before a vote is taken on such proposed amendment pursuant to Article 4, Section 20 (b) of the Constitution.
CERTIFICATION
I, the undersigned, of the Tribal Council of the Te-Moak Tribe of Western Shoshone Indians of Nevada do hereby certify that the Te-Moak Western Shoshone Council is composed of 11 members of whom 6 constituting a quorum were present at a duly held meeting on the 27th day of June, 1996, and that the foregoing Ordinance was duly adopted at such meeting by an affirmative vote of 5 FOR, 0 AGAINST, 0 ABSTENTIONS, pursuant to the authority contain under Article 4, Section 3 (n) of the Constitution of the Te-Moak Tribe of Western Shoshone Indians of Nevada.
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s/s
FELIX IKE, CHAIRMAN                   Te-Moak Tribe of Western Shoshone |
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ATTEST: |
BE IT ENACTED BY THE TRIBAL COUNCIL OF THE TE-MOAK TRIBE OF WESTERN
SHOSHONE INDIANS OF NEVADA, AS FOLLOWS:
That in accordance with Article 4 - EXECUTIVE AND LEGISLATIVE BRANCH OF GOVERNMENT, Section 3 (n) of the Constitution of the Te-Moak Tribe, approved May 3, 1938, as amended on August 26, 1982, as organized under the Indian Reorganization Act of June 1934, as amended.