Council closes protection order loophole

by Dec 11, 2017NEWS ka-no-he-da0 comments





An EBCI tribal member from the Birdtown Community was at her wits end earlier this year as she was being stalked by an individual, but she found no recourse.  After going to the Cherokee Tribal Court, she was told there was nothing they could do so she was directed to go to Swain County.

She did.  But, she was told because she lived on the Qualla Boundary that she was outside of their jurisdiction.  She was stuck in a void of law.  “I didn’t know where to turn.”

She turned to the law and approached several tribal leaders who helped her work with the EBCI Office of the Attorney General to draft legislation to close the void.

Tribal Council took action during its regular session on Thursday, Dec. 7 to close that void.  By a unanimous vote (11-0) of those present, Council passed Ordinance No. 17 (2017) which established Chapter 50C in the Cherokee Code entitled Civil No-Contact Orders.

“This would create, in tribal law, something similar to what is available under state law,” Michael McConnell, EBCI interim attorney general, said during discussion on the legislation.  “If a person off the Boundary is being stalked or harassed in certain ways, they can go to the court, in state court, and say, ‘I need help.  This person is causing me this problem’.”

He added, “The court does its examination and determines whether a protective order should be issued.  But, at least that mechanism is available. Up to now, that mechanism has not been available for tribal members seeking protection here in the Cherokee Court.”

McConnell explained that the Tribe currently has 50B Domestic Violence Protection Orders.  “A 50B (Domestic Violence Protection Order) relies on the relationship between the two parties.  There has to be an intimate relationship of some kind.  This Civil No-Contact Order does not require that kind of relationship.  It’s available for anybody.”

The legislation itself explains its purpose, “…this chapter is to provide protection within the territory of the Eastern Band of Cherokee Indians to persons who have been the victim of nonconsensual sexual contact or stalking.”

To obtain a 50C Civil No-Contact Order, one must file a complaint in the Cherokee Tribal Court or by filing a motion in an existing civil action.  The complaint must be filed by the victim themselves or a competent adult on behalf of a minor victim.  There are no court costs or fees associated with these filings.

According to the legislation, “After the petitioner files a complaint or motion seeking a civil no-contact order, a hearing on that petition or motion shall be set by the court for a date within 14 days of filing.”

The legislation outlines seven possible forms of relief in the order including:

  • Order the respondent not to visit, assault, molest, or otherwise interfere with the victim.
  • Order the respondent to cease stalking the victim, including at the victim’s workplace.
  • Order the respondent to cease harassment of the victim.
  • Order the respondent not to abuse or injure the victim.
  • Order the respondent not to directly or indirectly contact the victim by telephone, written community, or electronic means.
  • Order the respondent to refrain from entering or remaining present at the victim’s residence, school, place of employment, or other specified places at times when the victim is present.
  • Order other relief deemed necessary and appropriate by the court, including assessing attorneys’ fees to either party.

The tribal member was present for Thursday’s session, but did not speak.  Birdtown Rep. Albert Rose, who helped her get the ball rolling on the legislation, spoke to her and stated, “I’m in support of this.  Nobody needs to ever go through what you’ve been going through.”

Tribal Council also passed Ord. 30 (2017) on Thursday which creates Cherokee Code Chapter 50D authorizing Permanent Civil No-Contact Orders against Sex Offenders on behalf of the Crime Victim.  “One of the problems with the current state of the law is that somebody can get a protective order for a certain amount of time, but sometimes it doesn’t last long enough,” said McConnell.  “This one would allow people, in certain settings, I would say egregious situations, to get a civil no-contact order that could run for many years and potentially a lifetime.”

That legislation states that the new Chapter, “…is to offer a mechanism for providing lifetime protection within the territory of the Eastern Band of Cherokee Indians to persons who have been the victim of sexual assault and abuse.”

The filing and processes for the 50D action are virtually identical to that of the 50C.

Both ordinances will become law once ratified by Principal Chief Richard G. Sneed.

(Note: The One Feather does not, by policy, identify the victims of sexual or domestic violence and/or abuse, stalking, etc.)