Commissioner Gary Folger
AGO AN2013102606
No. AN2013102606 Alaska Attorney General Opinions July 30, 2015 Commissioner Gary Folger 5700 East Tudor Road Anchorage, AK 99507 450 Whittier Street PO Box 111200 Juneau, AK 99811 Re: Violence Against Women Act and tribal protection orders Our file: AN2013102606 Dear Commissioner Folger: You have requested an opinion on how the Violence Against Women Act, 18 U.S.C. § 2265 ("VAWA"), affects state enforcement of domestic violence protection orders.1 Specifically, you have asked whether VAWA requires the State of Alaska to enforce tribal protection orders that are not registered as required by Alaska law. Although your question refers to protection orders issued by Alaska tribes, the following analysis applies equally to protection orders issued by other states, territories, and non-Alaska tribes.2 VAWA expressly preempts state registration laws by requiring states to give full faith and credit to protection orders "notwithstanding failure to comply with any requirement that the order be registered or filed."3 Thus, the State cannot condition enforcement of protection orders on prior registration. Further, VAWA requires a protection order to be enforced "as if it were the order of the enforcing State."4Because violations of state protective orders are enforced by arrest, that enforcement tool also must be available for violations of tribal and foreign protection orders. This opinion also concludes that the Legislature should amend the conflicting state statutes to bring Alaska into compliance with VAWA, as most other state legislatures have done. But regardless of whether that occurs, the State must enforce unregistered tribal and foreign protection orders as though an Alaska court has issued them. I. VAWA expressly preempts state statutes that require registration of protection orders before enforcement. VAWA preempts the Alaska statutes that require registration of a protection order before the State can enforce it.5 The Supremacy Clause of the U.S. Constitution establishes federal law as "the supreme law of the land."6 Accordingly, federal law can preempt state law and render a conflicting state provision void.7 Federal preemption is primarily a question of Congress's intent.8 Congress's preemptive intent can be inferred where an actual conflict exists between state and federal law.9 "Even if Congress has not completely foreclosed state legislation in a particular area, a state statute is void to the extent that it actually conflicts with a valid federal statute."10 A conflict exists "where compliance with both federal and state regulations is a physical impossibility," or where the state "law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."11 No inference of preemptive intent is necessary here. In VAWA, Congress expressly stated that tribal and foreign protection orders must be enforced regardless of the enforcing state's registration requirements.12 Under 18 U.S.C. § 2265(d)(2), "[a]ny protection order that is otherwise consistent with this section shall be accorded full faith and credit, notwithstanding failure to comply with any requirement that the order be registered or filed."13 This express language aligns with a core purpose of VAWA, which is to ensure that dangerous individuals cannot evade a protection order simply by following the victim to a different jurisdiction.14 The clear and manifest purpose of VAWA is to require states to enforce a foreign protection order "as if it were the order of the enforcing State."15 In Alaska, violating a protective order is a crime.16 Under the statute as currently written, the State can only prosecute violations of a tribal or foreign protection order if they have been "filed" (that is, registered) in state court.17 But because VAWA reflects express congressional intent to remove state registration requirements as barriers to enforcement,18 Alaska's statutes requiring registration of tribal and foreign protection orders before enforcement are void and without effect.19 Therefore, VAWA preempts the provision of AS 18.66.140(b) requiring that foreign and tribal protection orders be filed in state court, as well as the provision of AS 11.56.740(a)(1) requiring the filing of a foreign or tribal order as an element of the crime of violating a protective order. II. Because VAWA requires the State to treat tribal and foreign protection orders the same as state protective orders, the State may also enforce those protection orders by arrest. Although Congress expressly stated that VAWA preempts state law, it did not determine the scope of Congress's intended preemption.20 VAWA states that a tribal or foreign protection order must be enforced "as if it were the order of the enforcing State."21 But did Congress intend enforcement to include arrest, thus preempting state criminal statutes that require registration before an officer may arrest for violating a protection order?22 In short, yes. We interpret VAWA's mandate that the State enforce a tribal or foreign protection order as if it were a state order to mean that the same enforcement tools that are available for a state order—including arrest—must be available for tribal and foreign orders that otherwise meet VAWA's requirements.23 In other words, officers may arrest an offender for violating a tribal or foreign protection order to the same extent that they can arrest an offender for violating a protective order issued under Alaska law. This interpretation is supported by a guide issued by the National Center on Protection Orders and Full Faith and Credit.24 This guide states that the issuing jurisdiction—the tribe or foreign jurisdiction—determines who is protected, the terms and conditions of the order, and how long the order is effective.25 But the enforcing jurisdiction—here, the State of Alaska—determines how to enforce the order, including how to detain the offender, whether to notify a victim of release, the penalties for violation, and the responding officer's arrest authority.26 Therefore, before arresting an offender for violating the tribal or foreign protection order, a state officer must determine whether the arrest would be proper if the order had been issued instead by the State of Alaska. If the violation subjects...
