Western District of Michigan Issues First Federal Decision Upholding Tribal Authority to Issue a Civil Protection Order Against a Non-Indian Under the Violence Against Women Act

On September 27, 2018, the United States District Court for the Western District of Michigan upheld the authority of the Nottawaseppi Huron Band of Potawatomi (“NHBP”) to issue and enforce civil protection orders against non-Indians under the Violence Against Women Act (“VAWA”), 18 U.S.C. § 2265(e).  See Spurr v. Pope, No. 1:17-cv-1083 (W.D. Mich. Sept. 27, 2018).  This is the first federal decision to address tribal jurisdiction under section 2265(e) of VAWA.  Kanji & Katzen represents NHBP in all aspects of the case.

In 2013, Congress amended section 2265(e) to affirm tribal authority to issue civil protective 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.  The district court decisively rejected the plaintiff’s challenge to tribal jurisdiction, holding that section 2265(e)’s plain text clearly confirms tribal authority to enter protection orders against non-Indians as well as Indians.

Additionally, the district court affirmed two important limitations on federal court review of tribal court decisions: (1) that tribal court determinations of tribal law do not by themselves serve as a basis for federal question jurisdiction, and (2) that outside of the habeas context, the Indian Civil Rights Act does not provide a federal cause of action to challenge tribal court decisions.