TRIBAL DOMESTIC VIOLENCE CASE LAW

TRIBAL DOMESTIC VIOLENCE CASE LAW
Annotations for Selected Tribal Cases Related to Domestic Violence
Prepared by:
Tribal Law and Policy Institute
This project was supported by Grant No. 2003-WT-BX-K001 awarded by the Office on Violence Against
Women, U.S. Department of Justice. Points of view in this documents are those of the authors and do not
necessarily represent the official position or policies of the U.S. Department of Justice.
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TRIBAL DOMESTIC VIOLENCE CASE LAW


Annotations for Selected Tribal Cases Related to Domestic Violence



























Prepared by:
Tribal Law and Policy Institute

Tribal Law and Policy Institute
8235 Santa Monica Blvd. Suite 211 West Hollywood California 90046 tel.(323)650-5467 fax(323)650-8149 staff@tribal-institute.org

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INTRODUCTION

This compendium is designed to assist tribal judicial officers in understanding how some tribal govern-
ments have handled certain legal issues within the context of domestic violence cases. While a great deal
of research has been done on case law in the state systems, little to no analysis has been done on the tribal
judicial approach to domestic violence. This compendium, developed as part of an overall code-writing
workshop curriculum for tribal governments, will assist tribal legislators as well. Understanding how laws
are interpreted by the court systems may impact the development of laws that provide safety to tribal citi-
zens.

This compendium does not include every tribal court opinion on domestic violence. It is limited to those
tribal court opinions that have been published and disseminated to the public, including cases found in the
Indian Law Reporter, the Oklahoma Tribal Court Reports, and the Northwest Regional Appellate Court
Reporter, as well as cases available on the internet. Tribal courts that do not publish opinions are not in-
cluded in this compendium.


HOW TO USE THE COMPENDIUM

The decisions listed in this compendium are not binding on any jurisdiction other than the one which issued
the decision. Whether or not a particular tribal court chooses to cite to another tribal court’s opinion (as
persuasive authority) is dependant upon a number of factors, including tribal statutes, cultural similarities,
and precedence. Citing to any case outside the pertinent tribal legal system should only be done after care-
ful analysis of the relevance and impact on sovereignty.

Note: Domestic violence is most often defined as “intimate partner violence’ – but many tribes define do-
mestic violence much more broadly.


A special thank you to Claudia Bayliff of the National Judicial Education Project (NJEP), a project Legal
Momentum, for allowing us to use her compendium model as a template; and thank you to M. Catherine
OliverSmith for her research assistance.
Tribal Domestic Violence Case Law I
Tribal Law and Policy Institute
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Table of Contents



I. Civil Cases


A. Child Custody
1


B. Definition Of Domestic Abuse
3


C. Jurisdiction
4


D. Termination Of Parental Rights
5


E. Violation Of A Protection Order
7



II. Criminal Cases


A. Arrest
9


B. Detention
11


C. Evidence
12


D. Self-Defense
14


E. Sentencing
16


F. Verdict
17
Tribal Domestic Violence Case Law II
Tribal Law and Policy Institute
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1 Tribal Domestic Violence Case Law - Annotations for Selected Cases

I. CIVIL CASES

A. CHILD CUSTODY


Eastern Band of Cherokee Indians Supreme Court

Arneach v. Reed, 2000.NACE.0000003
http://www.versuslaw.com

Facts: Arneach (Father) and Reed (Mother) have three children in common. Father is an enrolled member
of the Eastern Band of Cherokee Indians (EBCI) and resides on Cherokee trust lands. Mother is a citizen
and resident of Ohio and is not an enrolled member of the Tribe. Although Father and Mother previously
lived together on Cherokee trust lands, they were never married. The youngest child, daughter S.A., never
lived on tribal land and was not an enrolled member in the tribe, although she is listed on her birth certifi-
cate as being part Indian. The two boys, W.A. and S.A., are both enrolled members of the tribe and both
have lived on reservation land.

Mother filed for an emergency domestic violence restraining order against Father in a state court in Ohio
and was granted temporary custody of the three children. Two days later, Father filed a custody suit with
the Court of Indian Offenses (now the Cherokee Court). Ten days afterward, Mother filed a Consent
Agreement and Domestic Violence Protection Order in the Ohio Courts. She was granted temporary cus-
tody of the children with visitation to Father. She motioned to dismiss the custody determination in the
Court of Indian Offenses. The Court filed its order on January 27th, 1999, finding jurisdiction over custody
matters involving the children of the parties under the Eastern Band of Cherokee Indians Tribal Ordinance
No. 168 (1994).

Holding: The domestic violence restraining order from Ohio conferred parental rights and responsibilities
to Mother; however, the custody assignment was temporary. The Ohio order additionally stated that any
valid order issued by a court of competent jurisdiction on issues of custody or visitation would supersede.
Therefore, EBCI Court has jurisdiction over the custody of tribal children. The Eastern Band Cherokee
Court has jurisdiction for the purposes of determining child custody over the sons, W.A. and S.A., but the
court does not have jurisdiction over the youngest child, daughter S.A. (because she is not enrolled and has
not lived on the reservation).

Practical Application: A tribal court custody order may supersede a temporary custody assignment in a
state protection order.


Supreme Court of the Navajo Nation

Davis v. Crownpoint Family Court, 2003.NANN.0000012
http://www.versuslaw.com

Facts: Davis (Mother) has two minor children. At the time of this litigation, Halloway (Mother’s intimate
partner) had never established paternity. Halloway alleged that he was the victim of domestic abuse by

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Civil Cases 2
Mother. The Crownpoint Family Court granted an ex parte temporary restraining order to Halloway, giv-
ing him custody of the two children. The Crownpoint Court further found that Mother was an unfit parent
and she was detained at the Crownpoint Public Safety Facility. No proof was offered by Halloway to show
that Mother was indeed abusive and Mother was not afforded the opportunity to rebut the presumption of
unfitness. Halloway subsequently removed the children from the state and enrolled them in a new school.
Mother challenged the court ruling and requested that the Supreme Court order the children returned to the
Navajo Nation.

Holding: The Supreme Court reversed the decision of the Crownpoint Family Court and issued a writ of
habeas corpus to have the children returned to Mother. The lower court violated Mother’s due process
rights by finding that she was unfit without a hearing or without proof that she committed acts of abuse.
The Supreme Court further ruled that a family court has no jurisdiction to grant custody of a child without a
legal determination of paternity. Mere claim of biological parenthood is not enough to entitle a parent to
child custody. The best interests of a child are paramount in custody decisions and a determination of pa-
ternity.

Practical Application: A legal finding of unfitness should be based on evidentiary proof and a mother
who is alleged to be unfit should have the opportunity to rebut that presumption. The law specifically al-
lows this opportunity to the mother, as the Navajo Nation is matrilineal and there is a preference for child
placement with the mother.


Sombrero v. Keahnie-Sanford & Crank, 2003.NANN.0000011
http://www.versuslaw.com

Facts: Sombrero (Mother) was granted a temporary protection order (TPO) against Sandoval Crank, an
intimate partner. In her initial filing, Sombrero stated that Crank was the natural father as the basis for her
claim to child support. At the hearing, the court entered the parties' stipulated mutual domestic abuse pro-
tection order. Crank was ordered to pay monthly child support. Following a home study, the Navajo Nation
Division of Social Services recommended that Mother be given primary care of the child, Crank be given
unlimited visitation rights on his non-work days, and child support be paid by Crank of $214 per week.
Crank alleged that Mother refused to allow access to the child for visitation. Crank sought enforcement of
the orders in the court. The court enforced the orders and fined petitioner, as well as ordering petitioner to
pay all attorney fees. Crank resorted to the courts twice to enforce the visitation order because petitioner
continued to refuse him access to the child. At no time was a finding made concerning Crank's paternity.
The record shows Crank did not contest being the father of the minor child. However, the court did not
make a determination of paternity with this information.

Holding: Case was remanded to Kayenta Family Court for a finding of paternity. Custody and visitation
should not have been decided without a determination of paternity even where, as here, the parties stipulate
without a full evidentiary hearing. The family court erred when it granted custody and visitation without
first making the jurisdictional determination concerning Crank's paternity.

Practical Application: In this case, the appellate court found that the child custody, support, and visita-
tion orders were invalid without a finding of paternity. If the court does not make an actual legal determi-
nation of paternity where the parties are not married, then custody and visitation orders may not be en-
forceable, regardless of whether neither party objected to the presumption of paternity and regardless of
whether either or both parties stipulated to paternity.

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3 Tribal Domestic Violence Case Law - Annotations for Selected Cases
B. DEFINITION OF DOMESTIC ABUSE


Supreme Court of the Navajo Nation

Morris v. Williams, 1999.NANN.0000012
http://www.versuslaw.com

Facts: A property dispute arose in which Williams allegedly trespassed on Morris’ agricultural land and
used abusive language towards Morris. Morris filed for a protection order against Williams. The case was
tried as a Domestic Abuse case and was heard by the Window Rock Family Court. The family court found
that there was a "recorded history of incursions” by Williams since the early 1980s, which included the
unauthorized grazing of livestock, removal and destruction of a fence line, disruptive and unruly conduct
towards Morris and her family, and granted the protection orders. Morris appealed the decision, attempting
to enter evidence of land ownership into the case.

Holding: The Navajo Nation Domestic Abuse Protection Act (DAPA) was passed "to protect all persons:
men, women, children, elders, disabled persons, and other vulnerable persons, who are within the jurisdic-
tion of the Navajo Nation, from all forms of domestic abuse as defined by this Act and by Navajo Nation
law." 9 N.N.C. § 1604(A) (1995). The term "domestic abuse" covers many kinds of misconduct, including
harassment and damage to property." 9 N.N.C. § 1605(A)(1)(h), and (f) (1995). The Act does not provide
for the distribution of property or the determination of ownership or boundaries of land. The Act is con-
cerned only with the conduct of the parties.

Practical Application: The Navajo Nation code contains a very broad definition of domestic abuse.
Thus, the law may apply to many kinds of relationships, including neighbors. The Navajo Nation Domestic
Abuse Protection Act includes harassment and property damage as forms of domestic abuse.

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Civil Cases 4
C. JURISDICTION


Ho-Chunk Nation Trial Court

Whiteagle-Fintak v. Fintak, available at:
http://Hochunknation.com/government/judicial/opinions/dv9901.htm

Facts: Whiteagle-Fintak (Mother) and her daughter are enrolled members of the Ho-Chunk Nation. and
reside on the Ho-Chunk Nation Trust Land. Fintak (Husband), a non-Indian, also resides on the Ho-Chunk
Nation Trust Land. Whiteagle-Fintak filed for a protection order against Fintak and established that Fintak
had engaged in a pattern of physical and mental abuse, including intimidation.

Holding: The Court found that jurisdiction exists over Husband due to his residing on Ho-Chunk Nation
Trust land. The traditional laws of the Ho-Chunk Nation require respect between all people. This mandate
includes a prohibition against physical violence and intimidation.

Practical Application: Since tribal governments do not have criminal jurisdiction over non-Indians1, it
may be very important for a Native woman who is victimized by a non-Indian to have access to civil reme-
dies. In this case, the trial court turned to traditional law to rule that it had civil jurisdiction over non-
Indians who reside on trust land.




1 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).

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5 Tribal Domestic Violence Case Law - Annotations for Selected Cases
D. TERMINATION OF PARENTAL RIGHTS


Cherokee Nation Judicial Appeals Tribunal

E.P. v. Cherokee Nation, 7 Okla. Tribe. 517, WL 32099967 (Cherokee)(2002).

Facts: The Cherokee Nation initiated proceedings to terminate the parental rights of E.P. based on his his-
tory of violence against the child’s mother. Evidence at a jury trial showed that E.P. had assaulted his wife
with a metal chair. E.P. also abused alcohol and showed an unwillingness to put forth a good faith effort to
comply with the standards set for him by child protection workers. A social worker testified at trial that
future spousal abuse is likely. A jury trial resulted in the termination of the parental rights of E.P., who
then appealed the decision.

Holding: The Appeals Tribunal affirmed the judgment of the lower court. Spousal abuse in child's pres-
ence is the same as abusing the child mentally and emotionally. Sufficient evidence was present for the
jury to come to the conclusion that terminating EP's parental rights would be in the best interest of the
child.

Practical Application: Abusing a spouse in the presence of a child can constitute child abuse. A parent
who is not likely to stop using violence in a relationship presents a danger to the children, and the tribal
government is justified in terminating parental rights in such cases.


Northern Plains Intertribal Court of Appeals

In the Interest of [D], Jr., 17 ILR 6081 (1990).

Facts: At a trial for termination of Father’s parental rights, the lower court, Mother was granted physical
custody of the minor child (2 and a half years old) with legal custody being given to the Sisseton-Wahpeton
Sioux Tribe. Mother has a history of alcohol abuse and has been in prison three times for misdemeanor
offenses. Father also has a history of alcohol abuse and at time of trial was incarcerated for a severe beating
he inflicted upon Mother. The minor child was witness to the severe beating. Father’s parental rights ter-
minated and he appealed to the Northern Plains Intertribal Court of Appeals.

Holding: The appellate court found that there was no evidence of emotional abuse upon the minor child by
his action of severely assaulting the mother in the present of the minor child. The trial court decision was
reversed, and denies a termination of parental rights of the natural father of a minor Indian child under the
Indian Child Welfare Act.

Practical Application: This case ruled quite differently than E.P. v. Eastern Cherokee. The appellate
court indicated that expert witnesses must testify that the child did indeed suffer emotional abuse as a result
of having observed the physical abuse of one parent perpetrated by the other. This decision was written in
1990 and may not reflect the contemporary understandings of the impact of domestic violence on children.

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