On August 28, 2019, the United States Court of Appeals for the Sixth Circuit upheld the authority of the Nottawaseppi Huron Band of Potawatomi (“NHBP”) to issue a civil protection order against a non-Indian under the Violence Against Women Act (“VAWA”), 18 U.S.C. § 2265(e). See Spurr v. Pope, No. 18-2174 (6th Cir. Aug. 28, 2018). This is the first decision of a federal appeals court to address tribal jurisdiction under section 2265(e) of VAWA.
Kanji & Katzen represented NHBP in all aspects of the case.
In 2013, Congress amended section 2265(e) to affirm tribal authority to issue civil protection orders against “any person” for conduct occurring within a tribe’s Indian country. Pursuant to this provision and NHBP tribal law, the NHBP Tribal Court issued a civil protection order barring the plaintiff, a non-Indian, from harassing and stalking a tribal member. Rejecting plaintiff’s challenge to NHBP’s exercise of civil jurisdiction over her, the Sixth Circuit held that section 2265(e) “unambiguously” recognizes that tribal courts possess “the power to issue civil protection orders against any person in matters arising in the Indian country of the Indian tribe,” and that the provision’s reference to “any person” includes persons who are “Indian or non-Indian, tribal member or non-tribal member.”
Additionally, the Sixth Circuit concluded that tribal sovereign immunity barred plaintiff’s claims against NHBP and the NHBP Supreme Court. It rejected plaintiff’s argument that 28 U.S.C. § 1331 abrogated tribal sovereign immunity, explaining that “[t]o upset the baseline rule of tribal immunity, the statute’s text ‘must unequivocally express that purpose’ – shout it, not whisper it.”