Statutes | Nez Perce Tribal Code Title 2 Chapter 2-2, Rule 63 | 2018
(a) Preliminary Injunction.
(1) Notice. No preliminary injunction shall be issued without notice to the adverse party.
(2) Consolidation of Hearing With Trial on Merits. Before or after the commencement of the hearing of an application for a preliminary injunction, the Court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subsection (a)(2) shall be so construed and applied as to save to the parties any rights they may have to trial by jury.
(b) There shall exist an action known as a "petition for a domestic protection order" in cases of domestic violence.
(1) A person may seek relief from domestic violence by filing a petition based on a sworn affidavit with the Nez Perce Tribal Court, alleging that they are a victim of domestic violence. Any petition properly filed under this chapter may seek protection for any additional persons covered by this chapter.
(2) A persons right to petition for relief under this chapter shall not be affected by that person having left the residence or household to avoid abuse.
(3) The petition shall disclose the existence of any custody or any marital annulment, dissolution, or separation proceedings pending between the parties, the existence of any other custody order affecting the children of the parties, and the existence of child protection, or adoption proceedings affecting the children of any of the parties.
(4) When the petitioner requests custody of any child, the petition shall disclose:
(A) The county and state where the child has resided for six months immediately prior to filing of the petition
(B) The party or other responsible person with whom the child is presently residing and
(C) The party or other responsible person with whom the child has resided for six (6) months immediately prior to the filing of the petition.
(5) A petition shall be filed:
(A) Where the petitioner currently or temporarily resides
(B) Where the respondent resides or
(C) Where the act of domestic violence occurred.
(6) There is no minimum requirement of residency to petition for a domestic protection order.
(7) The petition shall not be a matter of public record.
(c) Ex Parte Protection Order.
(1) The Court may grant an ex parte temporary protection order pending a full hearing, granting such relief as the Court deems proper, where a petition under this section alleges that irreparable injury could result from domestic violence if an order is not issued immediately without prior notice to the respondent. The temporary order may include an order:
(A) Restraining the respondent from contacting the petitioner, either directly or indirectly
(B) Restraining the respondent from committing or threatening to commit acts of domestic violence upon the petitioner
(C) Excluding the respondent from the dwelling which the parties shared or from the residence of the petitioner until further ordered by the Court
(D) Awarding temporary custody and/or establishing temporary visitation rights with regard to the minor children
(E) Restraining any party from interfering with the other&rsquos custody of the children or from removing the children from the jurisdiction of the Court
(F) Ordering other relief as the Court deems necessary for the protection of a domestic partner, including orders or directives to peace officers as allowed under this code
(G) Restraining the respondent from contacting, molesting, interfering with or menacing the minor children whose custody is awarded to the petitioner
(H) Restraining the respondent from entering any premises when it appears to the Court that such restraint is necessary to prevent the respondent from contacting, molesting, interfering with or menacing the minor children whose custody is awarded to the petitioner
(2) An ex parte temporary domestic protection order shall remain in effect for 10 days from the date of issuance.
(3) A full hearing shall be held no more than 10 days from the date of issuance of an ex parte temporary domestic protection order. The respondent shall be personally served with a copy of the temporary order and notice of hearing, in accordance with the Rules of Civil Procedure of the Nez Perce Tribal Code.
(4) If the respondent is not personally served with a copy of the temporary order and notice of hearing, the existing temporary order may be extended for 10 days from the date originally set for hearing, and a new hearing date set. The respondent must be personally served with the new notice of hearing.
(d) Domestic protection order.
(1) A court may grant the following relief, if requested, in a domestic protection order after notice and hearing, whether or not the respondent appears:
(A) Temporary custody of the minor children of the petitioner or of the parties be awarded to the petitioner or respondent if the exercise of such jurisdiction is consistent with the provisions of this code, or consistent with prior custody orders entered by a court of competent jurisdiction.
(B) Restraining the respondent from committing or threatening to commit acts of domestic violence upon the petitioner
(C) Restraining the respondent from contacting, harassing, telephoning, or otherwise communicating with the petitioner, either directly or indirectly
(D) Excluding the respondent from the dwelling which the parties shared or from the residence of the petitioner
(E) Other relief as the Court deems necessary for the protection of the petitioner, including orders or directives to peace officers as allowed under this code
(F) Restraining the respondent from contacting, molesting, interfering with or menacing the minor children whose custody is awarded to the petitioner
(G) Restraining the respondent from entering any premises when it appears to the Court that such restraint is necessary to prevent the respondent from contacting, molesting, interfering with or menacing the minor children whose custody is awarded to the petitioner
(H) Prohibiting the respondent from having in their possession any firearm and/or ammunition whether working or not or
(I) Suspending or revoking the respondent=s privilege to hunt with a firearm. The authority to revoke or suspend privileges extends to the rights of tribal members to hunt pursuant to the provisions of the Treaty of June 11, 1855, 12 Stat. 957 and subsequent treaties and agreements.
(2) No protection order under this section shall in any manner affect title to real property.
(3) Relief shall not be denied because the petitioner used reasonable force in self-defense against the respondent, or because the petitioner or respondent was a minor at the time of the incident of domestic violence.
(4) Any relief granted by the domestic protection order shall be for a fixed period not to exceed 90 days provided that an order obtained pursuant to this chapter may, upon written motion and upon good cause shown, be renewed for additional terms not to exceed one (1) year each if the requirements of this chapter are met. The motion to renew an order may be granted without a hearing, if not timely objected to by the party against whom the order is entered.
(5) In providing relief under this chapter, the Court may realign the designation of the parties as "petitioner" and "respondent" where the Court finds that the original petitioner is the abuser and the original respondent is the victim of domestic violence.
(6) A court shall not grant a mutual domestic protection order to opposing parties.
(e) Full Faith and Credit.
(1) Any domestic protection order issued that is consistent with subsection (b) of this section by one State or Indian tribe (the issuing State or Indian tribe) shall be accorded full faith and credit by the Nez Perce Tribe and enforced as if it were the order of the Nez Perce Tribe.
(2) A domestic protection order issued by a State or Tribal court is consistent with this subsection if:
(A) such court has jurisdiction over the parties and matter under the law of such State or Indian tribe and
(B) reasonable notice and opportunity to be heard is given to the person against whom the order is sought sufficient to protect that persons 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 or Tribal law, and in any event within a reasonable time after the order is issued.
(3) A domestic protection order issued by a State or Tribal court against one who has petitioned, filed a complaint, or otherwise filed a written pleading for protection against abuse by a domestic household member is not entitled to full faith and credit if:
(A) no cross or counter petition, complaint or other written pleading was filed seeking such a protection order or
(B) a cross or counter petition has been filed and the Court did not make specific findings that each party was entitled to such an order.
(f) Temporary Restraining Order Notice Hearing Duration. A temporary restraining order may be granted without written or oral notice to the adverse party or that partys attorney only if:
(1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or that partys attorney can be heard in opposition and
(2) the applicants attorney certifies to the Court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required.
Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance shall be filed forthwith in the clerks office and entered of record shall define the injury and state why it is irreparable and why the order was granted without notice, and shall expire by its terms within such time after entry, not to exceed ten (10) days, as the Court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless a party against whom the order is directed consents that it may be extended or a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining or protection order is granted without notice, the motion for a preliminary injunction or protection order shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction or protection order and, if the party does not do so, the Court shall dissolve the temporary restraining order. On two (2) days&rsquo notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the Court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the Court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.
(g) Security. No restraining order, preliminary injunction or protection order shall issue except upon the giving of security by the applicant, in such sum as the Court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.
The provisions of Rule 63.1 apply to a surety upon a bond or undertaking under this rule.
(h) Form and Scope of Injunction, Restraining Order or Protection Order. Every order granting an injunction and every restraining or protection order shall set forth the reasons for its issuance shall be specific in terms shall describe in reasonable detail, and not be reference to the complaint or other document, the act or acts sought to be restrained and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.