[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:
DATING RELATIONSHIP
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.
DOMESTIC VIOLENCE or DOMESTIC ABUSE
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. 
Intentional infliction of physical pain, physical injury, or illness.
B. 
Intentional impairment of physical condition.
C. 
Any action and/or statement that may cause the other person reasonably to fear imminent engagement in the conduct described in this section.
FIREARM
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.
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.
LAW ENFORCEMENT OFFICER
Any member of the Menominee Tribal Police Department, the Menominee Tribal Conservation Warden, or other bona fide peace officer acting within his official capacity.
PREDOMINATE AGGRESSOR
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.
RIFLE
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.
SHOTGUN
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:
(1) 
Reasonable suspicion that the person has committed domestic violence; and
(2) 
Probable cause to believe that the person's actions constitute violation of a criminal ordinance and any one or more of the following circumstances are present:
(a) 
The law enforcement officer has a reasonable belief that continued domestic violence against the alleged victim is likely;
(b) 
Evidence exists of physical injury to the victim; or
(c) 
Evidence exists of damage or disruption to physical property at the scene of the domestic violence.
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 penalties for violating the provisions of a restraining order imposed as a result of an action arising out of this article shall be in accordance with Chapter 290, Article VI, Harassment, § 290-20, Violations and penalties, of this Code.
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:
(1) 
The victim was pregnant at the time of the battery and the perpetrator knew the victim was pregnant; or
(2) 
The battery incident occurred in the presence of anyone under the age of 17.
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.