Protections Orders

What is Abuse?

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Current tribal law states that “Abuse means inflicting or attempting to inflict physical injury on an adult by other than accidental means, physical restraint, or malicious damage to the personal property of the abused party.”

What can I do if I am abused?

• Call the police as soon as it is safe to do so.  Charges may be filed if the abuser’s acts constitute a crime.  You may also petition the court for an Order of Protection.  

• You can leave the home as soon as it is safe to do so.  

• Call the White Buffalo Calf Woman Society, Inc. (605-856-2317) or another shelter or safe place for shelter and assistance.  

 

Safety for yourself and your children if you have children is the priority.

What is a Protection Order?

A Protection Order is a civil court order that can be issued by a judge if he/she finds probable cause to believe that the applicant has been physically abused, threatened with physical abuse or her/his personal property has been damaged by a family or household member (spouse, girlfriend/boyfriend, intimate partner, “significant other” or family member residing in the same house with you).  Violation of a Protection Order may be a criminal offense.

What is a Restraining Order?

A Restraining Order is also a civil court order that can be issued by a judge if he/she finds probable cause to believe that the applicant has been physically abused, threatened with physical abuse or her/his personal property has been damaged by a non-family or household member (for example, a neighbor).  Violation of a Restraining Order may be a criminal offense.

Am I eligible for a Protection Order?

Any and all who have been subjected to abuse or threatened by abuse by a present adult family or household member may seek relief (a Protection Order) under tribal law by filing a sworn petition alleging such abuse by the Respondent.   The Rosebud Sioux Tribe must have jurisdiction over the matter – either the Petitioner and/or the Respondent are Rosebud Sioux tribal members, or you are and have been a resident of the Rosebud Sioux Tribe Reservation, and the abuse happened within the Rosebud Sioux Tribe Reservation boundaries (on tribal land).

You are the Petitioner if you are the person alleging abuse in a petition for an Order of Protection or a Restraining Order.  

 

The Respondent is the person alleged to have abused another in a petition for Order of Protection or a Restraining Order.

What does a Protection Order do?

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A Protection Order is a court order directing the Respondent to refrain from abusing or threatening to abuse the Petitioner, and

(a) It may grant the Petitioner possession of the residence or household to the exclusion of the Respondent by evicting the Respondent, by restricting possession to the Petitioner, or both.

 (b) It may direct the Respondent to provide suitable housing for the Petitioner when the Respondent is the sole owner or lessee of the residence or household.

(c) It may award temporary custody of, or establish temporary visitation rights, with regard to any minor children born to or adopted by the parties.

(d) It may award financial support to the Petitioner and such persons as the Respondent has the duty to support.

 

Relief granted regarding (a) through (d) shall be ordered only after the Petitioner or Respondent have been given an opportunity to be heard by the Court.

Where can I go to get a Protection Order?

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You can go the Rosebud Sioux Tribe courthouse in Rosebud, South Dakota, to get the appropriate form to complete and file with the civil court clerk.  There aren’t any filing or service fees for a Protection Order.  (For a Restraining Order you will be charged a filing fee of $20 and a service fee of $15, or you can complete and file a Waiver requesting that the judge waive either or both of those fees if you are financially unable to pay.)  

 

You can also call the White Buffalo Calf Woman Society, Inc. (605-856-2317) and ask for assistance and support in completing and filing a Protection Order, and support during the show cause hearing.  If you decide to obtain a Protection Order on your own, it is best if possible for you to wait until the judge has a chance to review your petition for the Order of Protection and the court clerk can prepare a temporary Protection Order, which she/he will provide a copy to you, a copy to law enforcement, and a copy will be served on the Respondent.  That way you will have a copy of the Order when the Respondent has been served and if it is necessary for you to call the police because of the Respondent’s attempt to further abuse you.  

 

A “show cause” hearing date and time will be set by the clerk and will be stated on the “Ex Parte Order of Protection and Notice of Hearing” that you and the Respondent will receive.  

 

If you do not attend that hearing, the Protection Order and everything that has been court ordered within it will be dismissed.

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What happens at the “show cause” hearing?

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• If both parties attend the show cause hearing, both of you will have the opportunity to testify.  

• If you are the Petitioner (or Plaintiff), you will testify first.  

• The other party will testify afterwards.  

• You will have the opportunity to question your witnesses and present your evidence.  

• The other party will have the opportunity to cross-examine you and your witnesses.  

• When it is the other party’s time to present his/her case, you will also be able to cross-examine him/her and his/her witnesses.  

 

The judge will make a decision as to whether your Protection Order will become “permanent” (up to one year).  

 

If the Respondent or Defendant does not appear for the hearing, you might testify regarding the incident that happened to cause you to petition the court for a Protection Order, or just be asked by the judge if you want the Protection Order to be permanent.

What happens if a violation takes place?

 

Call the police.  

You should carry a copy of your Protection Order with you at all times, so that if it becomes necessary for you to call the police, you will have it to show the responding officer.  

 

An arrest for a violation of an Order of Protection may be with or without a warrant.  A law enforcement officer may arrest the Respondent without a warrant if the officer has the proper jurisdiction over the area in which the Petitioner resides (for example, a Mission sheriff cannot arrest the Respondent if the Petitioner lives in Two Strike); the officer has probable cause to believe the Respondent has violated the Order of Protection; and the officer has verified whether there is an Order of Protection in effect against the Respondent.   In addition, the Petitioner/Plaintiff should go to the court and complete and file a Motion for Order to Show Cause stating the way in which the Protection Order was violated by the Respondent/Defendant.   A date and time will be set for a show cause hearing.

Remember that it is a crime under tribal law for one person to physically abuse,  threaten to physically abuse, or physically restrain his/her spouse, girlfriend/boyfriend, “significant other,”  intimate partner, or family or household member (living within the same residence), or inflict malicious damage to the personal property of the abused party.