Statutes | Confederated Tribes of the Umatilla Indian Reservation Crim. Code Chapter 4 Part X ยง 4.85 | 2019
A. Purpose. The Confederated Tribes of the Umatilla Indian Reservation recognize that its strength and sovereignty is grounded in its members. The future of the Confederated Tribes requires a safe and healthy community. Domestic abuse is a serious crime which erodes our future. Through this code the Confederated Tribes will continue to embrace the time honored traditions of the sacredness of our people by ensuring the safety of our people, protecting the community from the impacts of violent acts and ensuring that offenders are held accountable to the community.
B. Definitions.
1. Domestic abuse. The attempt, solicitation of, conspiracy to commit or commission of an act prohibited by Part IX, Part XII, or Section 4.89 of this Code between spouses, domestic partners, adult persons related by blood, marriage or adoption, persons cohabiting or who have cohabited with each other, persons who have been involved in an intimate relationship with each other prior to filing a petition for a protection order, or unmarried parents of a child.
2. Descendant. Persons related by descending lineal consanguinity, step-children, lawfully adopted children, foster children and wards.
C. Mandatory Arrest. When a law enforcement officer responds to a domestic disturbance call and has probable cause to believe that an offense of domestic abuse has occurred, the officer shall arrest and take into custody the predominant aggressor, but is not required to arrest both persons. A law enforcement officer shall arrest a person whom the officer has probable cause to believe violated a domestic abuse protection order.
D. Predominant Aggressor. When a law enforcement officer makes an arrest pursuant to subsection (A) of this section, the officer shall make every effort to determine who is the predominant aggressor by considering, among other factors:
1. The relative severity of the injuries inflicted or the seriousness of threats creating fear of physical injury
2. If reasonably ascertainable, the history of domestic abuse involving the persons in any jurisdiction
3. Whether any alleged crime was committed in self-defense
4. The likelihood of future injuries to each person and
5. Whether the incident occurred in the presence of children whether visually or auditorily, or perceived by them in any manner.
E. Injury Not Determinative. If the officer determines that one person was the predominant aggressor, the officer is not required to arrest the other person believed to have caused physical harm or bodily injury against the predominant aggressor, if any.
F. Prevention of Future Violence. Whenever a law enforcement officer has reason to believe that a person has been subjected to domestic abuse, the officer shall use all reasonable means to prevent further violence, including but not limited to:
1. Confiscating any weapon involved in the alleged domestic violence or taking temporary possession of any weapons found in the household
2. Assisting in obtaining transportation of the victim to a shelter if so desired
3. Assisting the victim in removing essential personal effects
4. Assisting the victim and children in obtaining necessary medical treatment
5. Giving the victim immediate and adequate notice of rights, remedies and services available which shall include the following:
"IF YOU ARE THE VICTIM OF DOMESTIC ABUSE, you have the right to go to the tribal court and file a petition requesting any of the following orders for relief: (a) an order restraining your attacker from contacting you or your children (b) an order directing your attacker to leave your household (c) an order preventing your attacker from entering your residence, school, business or place of employment (d) an order awarding you or the other parent temporary custody of a minor child or children or (e) an order directing the party not granted custody to pay support of minor children. You can obtain a copy of the officer&rsquos report at no cost to you.
You also have the right to obtain a protection order in state court.
The forms you need to obtain an order for protection can be obtained from the clerk of the court or from the Family Violence Program.
G. Mandatory Consultation. Prosecution shall not decline to file or dismiss a domestic abuse case without prior consultation and review with the arresting officer(s) and a domestic abuse advocate.
H. Protection Order Process. Any person who has been the victim of domestic abuse within the preceding 180 days may petition the Court for a protection order. The person may seek relief by filing a petition with the Court alleging that the person is in danger of abuse from the respondent, that the person has been the victim of abuse committed by the respondent within the 180 days preceding the filing of the petition, and particularly describing the nature of the abuse and the dates thereof. A petition form shall be available at the court and the Family Violence Program office.
1. The petitioner has the burden of proving a claim by a preponderance of the evidence.
2. For purposes of computing the 180-day period, any time during which the respondent is incarcerated or has a principal residence more than 100 miles from the principal residence of the petitioner shall not be counted as part of the 180-day period.
3. The Court shall not assess fees for the filing of a petition for protection order or responses to that petition.
I. Scope of Protection Orders. If the Court finds by a preponderance of the evidence that an individual has perpetrated an act of domestic abuse against another and the victim is in danger of further abuse, the court may issue an order:
1. restraining the individual from having any contact or communication, direct or indirect, including by phone, mail, email, text message, or through third persons, with a petitioner, the petitioner&rsquos children, or the petitioner&rsquos intimate partner
2. prohibiting the individual from being within a specified distance from petitioner, the petitioner&rsquos children, or the petitioner&rsquos intimate partner
3. directing the individual to leave a specified household
4. prohibiting the individual from being within a specified distance of the residence of the petitioner or the petitioner&rsquos intimate partner for the duration of the order
5. prohibiting the individual from entering the petitioner&rsquos residence, school, business or place of employment, or the children&rsquos school or daycare
6. awarding the petitioner temporary custody of or visitation with a minor child or children
7. awarding temporary child support. In the event child support is ordered, the Court shall notify the Office of Child Support Enforcement to assist in determining the amount of child support owed pursuant to the relevant provisions of the Family Law Code
8. excluding the respondent from the reservation, if the Court finds exclusion is necessary to prevent future acts of domestic abuse or
9. any other order the Court deems necessary or appropriate to ensure the safety of the petitioner or petitioner&rsquos children.
J. Respondent&rsquos Rights in Protection Order Proceeding. Every respondent shall be given reasonable notice and opportunity to be heard sufficiently to protect that persons right to due process.
1. Except in the case of an ex parte temporary order, a hearing on a petition for a protection order shall be heard within 30 days of filing of the petition.
2. At the time a petition for a protection order is filed, the court clerk shall issue a notice of hearing date. The Court shall forward a copy of the petition and notice of hearing date to the Umatilla Tribal Police Department. The Umatilla Tribal Police shall attempt to serve the notice on the respondent at least 7 days prior to the scheduled hearing date. The Umatilla Tribal Police Department shall file proof of service with the Court prior to the scheduled hearing date.
3. Every respondent has the right to be represented by an attorney at their own expense in any protection order proceeding.
K. Ex Parte Orders and Related Procedures. The Court may issue an ex parte temporary order for protection when it finds by a preponderance of the evidence that a petitioner is in immediate danger of domestic abuse.
1. If an ex parte temporary order is issued, the Court shall hold a full hearing within 30 days of issuance of the temporary order and provide both the petitioner and respondent with notice of the hearing at least 14 days prior to the hearing.
2. Upon issuing a temporary protection order, the Court shall provide the Umatilla Tribal Police Department with the information it has available regarding the location of the respondent. The Umatilla Tribal Police Department shall make reasonable efforts to personally serve the respondent within 7 days of issuance of an ex parte order. If personal service is not had within 7 days of issuance of an ex parte order, the Umatilla Tribal Police Department shall mail a copy of the order, return receipt requested, to the last known address of the respondent. Proof of service shall be filed with the Court.
3. Upon issuing an ex parte temporary protection order, the Court shall immediately notify the Umatilla Tribal Police Department and provide them with a copy of the order.
L. Protection Order Requirements. Every protection order issued under this section shall contain the language substantially similar to the following in a separate section immediately above the signature of the judge, if any:
CERTIFICATE OF COMPLIANCE WITH THE VIOLENCE AGAINST WOMEN ACT: This protective order meets all full faith and credit requirements of the Violence Against Women Act, 18 U.S.C. 2265. This court has jurisdiction over the parties and the subject matter. The respondent was afforded notice or this order has been issued ex parte due to immediate danger and the respondent has been given a timely opportunity to be heard or will be given an opportunity to be heard in a timely manner as provided by the law of this jurisdiction. THIS ORDER IS VALID AND ENTITLED TO ENFORCEMENT IN THIS AND ALL OTHER JURISDICTION&rsquoS UNDER FEDERAL FULL FAITH AND CREDIT LAWS.
WARNING: POSSESSION OF A FIREARM OR AMMUNITION BY RESPONDENT WHILE THIS ORDER IS IN EFFECT MAY BE PROHIBITED UNDER FEDERAL OR STATE LAW.
WARNING: ONLY THE COURT HAS THE POWER TO ALTER THESE CONDITIONS REGARDLESS OF THE CONSENT OF THE PROTECTED PARTY.
1. The Court shall provide the Umatilla Tribal Police Department and Prosecutor&rsquos Office with a copy of every protection order it issues within 24 hours of issuance.
2. The Umatilla Tribal Police Department shall make reasonable efforts to ensure every protection order issued in accordance with this part is recorded in Oregon&rsquos Law Enforcement Data System and other relevant local and national law enforcement criminal data information systems.
M. Automatic Court Protection Order in Criminal Proceedings. As a condition of release, every defendant arrested and taken into custody for a domestic abuse crime shall be issued a court order of protection prior to release from custody, which shall be deemed an order of the court and is effective without the need for judicial signature and shall remain in effect until otherwise acted upon by the Court or 180 days has passed since issuance, whichever is earlier. The Umatilla Tribal Police Department shall ensure the defendant is given a copy of the protection order prior to release from custody. A copy of the protection order shall be sent to the victim, Court, and Prosecutor&rsquos Office within 24 hours. The Umatilla Tribal Police Department shall also retain a copy for their records.
1. The protection order shall state the following:
a. The defendant is restrained from having any contact or communication, direct or indirect, including by phone, mail, email, text message, or through third persons, with the victim(s), the victim(s)&rsquo children, and the victim&rsquos intimate partner
b. The defendant is prohibited from being within 1000 feet of the victim(s), the victim(s)&rsquo children, or the victim(s) intimate partner(s)
c. The defendant shall leave the residence of the victim until further order of the Court regardless of whose name is on any lease, mortgage, or other real estate agreement
d. The defendant is prohibited from being within a 1000 feet of the residence of the victim and the residence of the victim&rsquos intimate partner regardless of whose name is on any lease, mortgage, or other real estate agreement
e. The defendant is prohibited from entering the victim&rsquos residence, school, business or place of employment, or the children&rsquos school or daycare, until further order of the Court
f. The defendant has a right to request a hearing before the Court to modify or dismiss the protection order, and has a right to have an attorney present at that hearing
g. A violation of any provision in the protection order is a crime under the laws of the Confederated Tribes of the Umatilla Indian Reservation and may be a crime in any other jurisdiction.
2. A defendant may request a hearing on the default protection order at any time.
3. A hearing on the request for hearing shall be held within 30 days of a defendant filing such a request.
4. In the event a defendant files a request for hearing within 30 days of receipt of a default protection order, the Court shall notify the Prosecutor&rsquos Office at least 7 days prior to the scheduled court date.
5. A form automatic protection order shall be made available to the Umatilla Tribal Police Department and relevant jail facility to use in accordance with this subsection.
6. The Prosecutor shall represent the Confederated Tribes at any hearing on the default protection order requested by a defendant.