CHAPTER 4-9
REMEDIES

4-9-1 Scope.

Remedies are measured where the private and individual rights of a person are enforced or its violation is prevented. Every order granting such remedies shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail the act sought to be restrained; and is binding upon the parties who receive actual notice of the order by personal service or otherwise.

4-9-2 Types of Remedies.

(A)    The restraining order is intended to forbid and limit the performance of particular acts, or threatened acts, until such time when a hearing can determine whether an injunctive relief should be issued and is generally a provisional remedy.

(B)    The injunction is a command to refrain from or perform a particular act for the benefit of another. Generally, it is a preventive and protective remedy, aimed at future acts, and it is not intended to redress past wrongs. The injunction may be a temporary or final remedy.

4-9-3 Temporary Restraining Order.

A temporary restraining order may be granted without written or oral notice to the adverse party only if it clearly appears from specific facts shown that immediate and irreparable injury, loss, or damage will result. Temporary restraining orders should not be granted except in cases of extreme urgency.

Every temporary restraining order granted shall be endorsed with the date of issuance; in the clerk’s office and entered of record; and why the order was granted; and shall expire by its terms within ten (10) days, unless for good cause shown, is extended for a longer period and shall be served. On two (2) days notice the adverse party may appear and move its dissolution or modification and the Court shall proceed to hear and determine such motion as expeditiously as justice requires.

4-9-4 Preliminary Injunction.

No preliminary injunction shall be issued without notice to the adverse party. Notice may be in the form of an order to appear or in such form as the Court shall direct. The burden of showing the criteria for issuance of a preliminary injunction remains with the moving party.

4-9-5 Preliminary Injunction-Criteria.

Unless a statute of the Tribe provides specifically for preliminary injunctive relief upon a showing of particular circumstances, no preliminary injunction shall be granted unless upon hearing the evidence presented by the parties the Court determines that:

(A)    There is substantial likelihood that the moving party will eventually prevail on the merits of their claim for a permanent injunction or other relief, and

(B)    The moving party will suffer irreparable injury unless the preliminary injunction issues. Irreparable injury means an injury which cannot be adequately remedied by a judgment for money damages, and

(C)    The threatened injury to the moving party outweighs whatever damage or injury the proposed preliminary injunction may cause the opposing party, and

(D)    The preliminary injunction, if used, would not be adverse to the public interest, and would not violate the public policy of the Tribe or the United States.

4-9-6 Injunction is Equitable.

(A)    Relief by way of a restraining order or injunction is and shall be issued, or refused, in the sound discretion of the Court.

(B)    No injunction shall be issued to control the discretion or action of a Governmental officer or employee when such has been delegated the authority to exercise his discretion in determining how to act upon the subject matter, and is acting or refusing to act in a manner not prohibited by tribal law or the Indian Civil Rights Act.

(C)    The tribal court shall not issue any injunction, writ or other order to restrain, enjoin, direct or determine the actions of Tribal Council or tribal government in carrying out the discretionary functions provided for in Article X, Sec. 2(b).

(1)    The Tribal Council’s discretionary functions in this respect include, without limitation, (a) the discretion to determine the sufficiency of the form and extent of the detailed statement of charges, (b) the discretion to determine the particular manner and extent of any procedures for providing an opportunity to appear and answer the charges, (c) the discretion to determine the particular manner and extent of any procedures for initiating, conducting and determining the Article X, Sec. 2(b) meeting in general and (d) the discretion to finally determine whether the facts have shown that a Council member has committed an act of moral turpitude, nonfeasance or malfeasance in office, gross neglect of duty, misconduct reflecting on the dignity and integrity of the tribal government or embezzlement of tribal property or assets. These discretionary functions of the Tribal Council shall not be subject to judicial direction, appeal or review.

(2)    Under no circumstances whatsoever shall any tribal judge issue any order or be involved in any judicial proceeding involving an Article X, Sec. 2(b) matter when any aspect of the Sec. 2(b) charges involves a judicial proceeding over which the judge presided or for which the judge has issued any order.

(3)    With respect to any non-discretionary functions under Article X, Sec. 2(b), no temporary restraining order or temporary injunction shall be requested or considered before the final decision is rendered by the Tribal Council on the question of removal.

(4)    Any tribal court order issued in violation of any part of this section is void and shall not be enforced in any respect.

(5)    Nothing in the tribal code shall be construed to limit or modify the Tribal Council’s authority to remove a Council member as provided for in Article X, Sec. 2(b). The provisions of this section shall supercede and shall be fully enforced notwithstanding any other tribal code provisions to the contrary.

(Amended by PBP TC No. 2000-187, September 27, 2000)

4-9-7 Enforcement.

(A)    A restraining order or injunction granted by a Judge may be enforced as the act of the Court. Disobedience of any order or injunction may be treated as contempt.

(B)    Any domestic violence protection order issued by a State or Indian tribe that is consistent with this subsection shall be accorded full faith and credit by the Prairie Band Potawatomi Nation and enforced as if it were the order of the Prairie Band Potawatomi Nation.

(1)    A domestic violence protection order issued by a State or Tribal Court is consistent with this subsection if:

(a)    such Court has jurisdiction over the parties and matter under the law of such State or Indian tribe; and

(b)    reasonable notice and opportunity to be heard is given to the person against whom the order is sought sufficient to protect that person’s right to due process. In the case of ex-parte orders, notice and opportunity to be heard must be provided within the time required by State or Tribal law, and in any event within a reasonable time after the order is issued.

(2)    Mutual domestic violence protection orders issued by another State, Tribal, or territorial court are not entitled to full faith and credit. Mutual protection orders are:

(a)    Protection orders issued against both parties in which the original defendant did not file a cross or counter petition, complaint or other written pleading seeking such a protection order; or

(b)    Protection orders issued against both parties in which the original defendant filed a cross or counter petition and the court did not make specific findings that each party was entitled to such an order.

(C)    Contempt shall be punishable by a fine not to exceed $5,000 or by a term of imprisonment in the tribal jail not to exceed six months, or both.

(Amended by PBP TC No. 2008-166, July 17, 2008)

4-9-8 Modification.

A judgment containing an injunction may be modified or dissolved by separate action upon showing that the facts and circumstances have changed to the extent that the injunction is no longer just and equitable, or that the injunction is no longer needed to protect the rights of the parties.

4-9-9 Order of Protection from Domestic Violence.

(A)    Petition for an order of protection. A petition to obtain an order of protection under this section may be filed by:

(1)    Any person claiming to be the victim of domestic violence,

(2)    Any family member or household member of a person claimed to be the victim of domestic violence, on behalf of the alleged victim, or

(3)    The Tribal Prosecutor

(B)    Petition Process.

(1)    A petition shall allege the existence of domestic violence, and shall be verified or supported by an affidavit made under oath stating the specific facts and circumstances justifying the requested order.

(2)    No filing fee shall be required for a petition under this section.

(3)    Standard, simplified forms with instructions for completion shall be available for persons not represented by counsel.

(C)    Temporary Ex-parte Order of Protection.

A temporary ex-parte order of protection may be granted with or without written or oral notice to the adverse party only if it appears from specific facts shown that immediate threat will result in the absence of the order of protection. Temporary ex-parte orders of protection should only be issued in cases of extreme urgency.

Every temporary ex-parte order of protection granted shall be endorsed with the date of issuance; in the clerk’s office and entered of record; and why the order was granted; and shall expire by its terms within fifteen (15) days, unless for good cause shown, is extended for a longer period and shall be served. On two (2) days notice the adverse party may appear and move its dissolution or modification and the court shall proceed to hear and determine such motion as expeditiously as justice requires.

Within fifteen (15) days after the granting of the ex-parte order of protection the Court shall hold a hearing to determine whether the order should be vacated, extended for an additional fifteen (15) days, or modified in any respect.

If an ex-parte order is not granted the court shall serve notice to appear upon both parties and hold a hearing on the petition for order of protection within seventy two (72) hours after filing the petition; Provided that, if notice cannot be personally served within twenty four (24) hours, the parties shall be served by posted notice, and the court shall hold a hearing on the petition within fifteen (15) days after the filing of the petition.

(D)    Permanent Order of Protection.

The court may grant a permanent order of protection for duration not to exceed twelve (12) months unless extended by the court at the request of the victim or the court.

(Amended by PBP TC No. 2000-187, September 27, 2000; amended by PBP TC No. 2008-166, July 17, 2008)