[Adopted 10-14-1993 by Ord. No. 93-21; amended in its entirety 5-1-2008]
The Menominee Indian Tribe of Wisconsin, recognizing the fact
that domestic violence is not a part of our traditional values and
culture, enacts this article for the purpose of combating domestic
violence on the Menominee Indian Reservation. This article is both
a penalty enhancer which attaches to an underlying crime committed
under domestic violence conditions and designed to provide increased
protections for the victims.
This article shall be titled "Domestic Violence."
As used in this article, the following terms shall have the
meanings indicated:
A romantic or intimate social relationship between two individuals
17 years of age or older, but "dating relationship" does not include
a casual relationship or an ordinary fraternization between two individuals
in a business or social context. A court shall determine if a dating
relationship existed by considering the length of the relationship,
the type of the relationship, and the frequency of the interaction
between the individuals involved in the relationship.
Any one or more of the following engaged in by a person 17
or older against his or her spouse or former spouse, against a person
17 or older whom the person resides with or formerly resided with,
against a person 17 or older whom the person has created a child with
or against a person age 17 and older whom the individual has been
involved with in an intimate or dating relationship:
A weapon that acts by force of gunpowder to fire a projectile,
regardless of whether it is inoperable due to disassembly, and includes
but is not limited to any rifle, shotgun, or handgun.
Any weapon designed or redesigned, or made or remade, and
intended to be fired while held in one hand and to use the energy
of an explosive to expel a projectile through a smooth or rifled bore.
Any member of the Menominee Tribal Police Department, the
Menominee Tribal Conservation Warden, or other bona fide peace officer
acting within his official capacity.
In a domestic violence incident, when the responding law
enforcement officer receives complaints from two or more opposing
persons, the officer shall use the following factors to evaluate each
complaint separately and determine who the predominate aggressor is:
the injuries to the parties involved, the presence of defensive injuries
to the parties involved, past history of domestic abuse by either
party, the severity of harm/violence in the incident, and the difference
in power maintained by either party during the incident.
A weapon designed or redesigned, made or remade, and intended
to be fired from the shoulder or hip and designed or redesigned and
made or remade to use the energy of a propellant in a fixed shotgun
shell to fire through a rifled bore either a number of ball shot or
a single projectile for each single pull of the trigger.
A weapon designed or redesigned, made or remade, and intended
to be fired from the shoulder or hip and designed or redesigned and
made or remade to use the energy of a propellant in a fixed shotgun
shell to fire through a smooth or rifled bore either a number of ball
shot or a single projectile for each single pull of the trigger.
A.
Law enforcement officers shall arrest the apparent predominate aggressor
involved in an incident of domestic violence if the law enforcement
officer has:
B.
Law enforcement officers will avoid multiple arrests and arrest only
the predominate aggressor unless there is probable cause to arrest
multiple persons.
C.
Law enforcement officers shall notify the on-call domestic violence
advocate immediately once an arrest is made under this article and
the scene is secure.
D.
If children are present during the domestic violence episode at which
both parents or legal guardians are arrested, the Menominee County
Department of Human Services will be contacted immediately.
E.
Upon arrest for any crime under domestic violence conditions which
involved the use of or threatened use of a firearm, law enforcement
shall confiscate any and all firearms and ammunition on the suspect's
person or in the suspect's vehicle or residence. The firearms and
ammunition will remain in the custody of law enforcement pending the
outcome of the criminal case. The firearm and ammunition will be returned
to the accused if found not guilty of committing the crime(s) as charged.
If the accused is found guilty, the Court will order the firearm(s)
sold at public auction with the proceeds deposited with the Menominee
Indian Tribe of Wisconsin.
A.
If a law enforcement officer does not make an arrest under this article
when the officer has reasonable grounds to believe that a person is
committing or has committed domestic violence and the person's acts
constitute a violation of a criminal ordinance, the law enforcement
officer shall prepare a written report stating why the person was
not arrested. The report shall be sent to the Tribal Prosecutor's
office within 24 hours of the report of the incident to law enforcement.
The Tribal Prosecutor shall review the report to determine whether
the person involved in the incident should be charged with the commission
of a crime.
B.
If the Prosecutor finds in the officer's report that sufficient evidence
exists suggesting that the commission of a crime under domestic violence
conditions did take place, the Prosecutor may issue a motion with
a supporting affidavit to the Court requesting an arrest warrant on
the person(s) believed to have committed the crime.
A.
A person arrested pursuant to this article shall be held in jail
for a period not to exceed 36 hours, excluding Saturdays, Sundays,
official holidays and court closings.
B.
A jailed party can be released from jail if the accused agrees to
apply for and comply with a judge's order restraining him or her from
interfering with the other party. The restraining order shall be in
effect for the following time periods:
(1)
Until a Menominee Tribal Judge vacates or modifies said order.
(2)
A hearing before a Tribal Judge on said restraining order shall be
had within 10 days of its issuance.
(3)
A Tribal Judge may issue a permanent restraining order for a maximum
period of time not to exceed five years and for a minimum period of
time not less than one year unless the victim requests a shorter period
of time.
The fee for obtaining a restraining order under § 368-29B shall be waived by the Court or assessed to the accused.
The Menominee tribal jail shall notify the on-call domestic
violence advocate prior to the release of any person arrested under
this article. The on-call advocate shall make reasonable outreach
to the victim as soon as he or she is notified of the release of the
person arrested in order to assess the safety of the victim and children
and provide emergency shelter if needed.
A.
A person convicted of a crime under domestic violence conditions shall submit to a domestic violence abuser assessment performed by a batterer's treatment provider utilizing Menominee Batterers Treatment Standards or certified by Wisconsin Batterers Treatment Provider Association within 15 business days of his conviction or release from jail unless ordered earlier by the Court and follow all recommendations for batterer's treatment. A person convicted of a crime under domestic violence conditions may also be required, if alcohol or drugs were a contributing factor in the incident, to submit to an alcohol or drug addiction assessment and follow all recommendations of the assessment. The Menominee Batterer's Treatment Standards will be approved through the process of general policies as per § 98-7B(1) (b).
[Amended 5-17-2018 by Ord. No. 18-12]
B.
A person convicted of any crime under domestic violence conditions
shall be ordered not to interfere with and shall cooperate with any
counseling or mental health treatment sought out by the victim in
relation to the domestic violence. The entire uninsured costs of any
such counseling or mental health treatment related to the domestic
violence shall be the responsibility of the person convicted.
C.
A person convicted of any crime under domestic violence conditions
shall be ordered to obtain counseling or mental health treatment for
his or her children in relation to the family and domestic violence,
except where an underlying Family Court order or protective order/injunction
does not permit the defendant to have contact with the children or
make decisions regarding such counseling or treatment. The person
convicted shall not interfere with and shall cooperate with all appointments
and recommendations of the mental health professional. The entire
uninsured costs of any such counseling or mental health treatment
related to the domestic violence shall be the responsibility of the
person convicted, whether such counseling is arranged by the defendant
or the victim.
A.
A person convicted of battery under domestic violence conditions
shall be sentenced to 12 months in jail with a minimum of six months
imposed and the remainder stayed to probation under the following
circumstances:
B.
A person convicted for a third or subsequent battery offense under
domestic violence conditions shall be sentenced to a minimum of three
months in jail which must be imposed and not stayed to probation.
A.
It shall be unlawful for any person who has been convicted in Tribal
Court of battery under domestic violence conditions, assault with
the threatened use of a firearm under domestic violence conditions,
or a third conviction or more for any crime under domestic violence
conditions to ship, receive, possess, conceal, store, barter, sell,
dispose of or transfer in any way, except in surrendering to law enforcement,
any firearm or ammunition for a period of three years to life from
the date of conviction.
B.
The length of the firearms prohibition shall be determined by the
Court and may be from a minimum of three years to a maximum of a lifetime.
The length of the firearms prohibition shall be included within the
sentencing order of the Tribal Court.
C.
The Court shall consider the following factors in determining the
length of the firearms prohibition:
(1)
Whether a firearm was used or threatened to be used in the underlying
conviction.
(2)
Prior criminal convictions in tribal, state, or federal court for
other violent crimes or firearms convictions.
(3)
History of homicide threats towards the victim(s) or family and friends
of the victim(s) or suicide threats.
(4)
History of mental illness and the defendant's compliance or noncompliance
with the treatment protocol of the treating physician or licensed
mental health professional.
(5)
Documentation of the use of alcohol or illicit drugs during criminal
activity.
(6)
History of compliance or noncompliance with Court-ordered counseling
and treatment and probation.
(7)
Severity of the injury to the victim in the underlying conviction.
(8)
Information contained within a pre-sentence investigation, if any.
(9)
Any other factors which the Court deems relevant to such determination.
D.
Defendants subject to the firearms prohibition may motion the Court to reduce or remove the firearms prohibition, for the purpose of hunting only, with proof of successful completion of all sentencing terms and rehabilitative programs. The Court will consider all of the factors in Subsection C when making its decision.
