Kenaitze Indian Tribe

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Kenaitze Indian Tribe
P.O. Box 988
Kenai, AK 99611
Phone: (907) 283-3633
Fax: (907) 283-3052

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Domestic Relations Code

Chapter 10: Protection for the Elders and Vulnerable Adults of the Kenaitze Indian Tribe

Section 1. Policy, Purpose and Enforcement

  1. Policy
  2. Purpose
  3. Enforcement

Section 2. Application of this Chapter

Section 3. Definitions

Section 4. Duty to Report Abuse of an Elder

Section 5. Immunity for Reporting and Confidentiality

Section 6. Failure to Report, Bad Faith Reports, and Penalty for Retaliation

  1. Failure to Report
  2. False Reports
  3. Retaliation

Section 7. Procedures for Reporting, Investigation, Petition, Notice, and Hearing

  1. Reporting
  2. Investigation
  3. Petition and Hearing

Section 8. Elder Protective Services and Placements

  1. Voluntary Placements and Protective Services
  2. Involuntary Protective Placement and Services
  3. Funding of Protective Placements and Services
  4. Plan for Delivery of Services to Elders

Section 9. Emergencies

  1. Emergency Action
  2. Petition
  3. Orders
  4. Notice
  5. Hearing
  6. Forcible Entry
  7. Risk of Immediate or Irreparable Harm

Section 10. Rights of Elders, Their Families and Caretakers

Section 1. Policy, Purpose, and Enforcement

  1. Policy: It is the traditional way of the Kenaitze Indian Tribe to honor and respect the Tribal Elders. The Elders of the Kenaitze Tribe are valuable resources as they are our custodians of tribal history, culture and tradition. Thus, it is in the best interest of, and serves the welfare of the Kenaitze Tribe to protect tribal Elders. It is also in the best interest of the Tribe to protect vulnerable tribal members.
  2. Purpose: The purpose of this Chapter is to protect Elders and vulnerable adults within the jurisdiction of the Kenaitze Tribe from abuse as defined in this Ordinance. This Ordinance shall be liberally interpreted in order to achieve its purpose. This Ordinance provides for:
    1. Reporting abuse or neglect to the Tribal Court;
    2. Receiving reports of and investigating suspected abuse or neglect; and
    3. Delivering emergency and non-emergency protective services to Elders and other vulnerable adults.
  3. Enforcement: The Kenaitze Tribal Court shall be the primary enforcer of this law, provided that the Kenaitze Tribal Court may enter into agreements with other courts of competent jurisdiction for enforcement when circumstances warrant such cooperation.

Section 2. Application of this Chapter

This Chapter is civil in nature. This Chapter applies to Tribal Elders and to any adult tribal members of the Kenaitze Tribe should circumstances as defined by this Chapter warrant. Any section or portion thereof containing the word "Elder" shall be liberally construed to include and mean or other "vulnerable adult" as defined by Section 3 of this Chapter.

Section 3. Definitions

In this Chapter the following words shall have these meanings:

"Abuse" is intentional or negligent infliction of bodily injury, sexual abuse, emotional abuse, unauthorized and/or improper use of funds, property or other resources of an Elder, neglect, unreasonable confinement, intimidation or cruel punishment of an Elder resulting in physical harm or pain or mental anguish by any person, including anyone who has a special relationship with the Elder such as a spouse, a child, or other relative recognized by the Tribal Council as a caretaker. Abuse is also interfering with delivery of necessary services and resources, failing to report abuse or neglect of an Elder by any person, and failing to provide services or resources essential to the Elder's practice of his/her customs, traditions, or religion.

"Caretaker" is a person who is required by tribal law, custom or state law to provide services or resources to an elder; a person who has voluntarily undertaken to provide care or resources to an elder; an institution or agency which voluntarily provides or is required by tribal law, custom or state/federal law to provide services or resources to an elder, including the duty to follow-up on placements, and any such institutions or agency which receives anything of value in return for providing services or resources. Caretakers also include employees of the institutions or agencies.

"Elder" is a member or spouse of a member of the Kenaitze Tribe who is 55 years or older.

"Incapacity" is the current inability or functional inability of a person to sufficiently understand, make, and communicate responsible decisions about himself as a result of mental illness, mental deficiency, physical illness or disability, chronic use of drugs or liquor, use of prescription medication and/or illegal drugs and to understand the consequences of any such decision. Incapacity may vary in degree and duration and shall not be determined solely on the basis of age.

"Protective Placement" is the placement of an Elder in a hospital, nursing home, residential care facility, or with a different family or person, or transfer of the Elder from one such institution to another with the Elder's consent or appropriate legal authority.

"Protective Services" are services provided to an Elder with the Elder's consent or with appropriate legal authority and include, but are not limited to, social case work, psychiatric and health evaluation, home care, day care, legal assistance, social services, health care, case management, guardianship, conservatorship, and other services consistent with this Ordinance. It does not include protective placement.

"Reporter" is someone who notifies the Kenaitze Tribal Court of a suspected abuse of an Elder or vulnerable adult.

"Retaliation" is threatening a reporter of Elder abuse or the reporter's family in any way, causing bodily harm to the reporter or the reporter's family, causing the reporter or any of the reporter's family to be reprimanded by an employer, terminated from a job, suspended from general assistance, or damaging the reporter's or the reporter's family's real or personal property in any way.

"Vulnerable adults" are those persons over 18 who are mentally or physically incapacitated by physical conditions or by drug or alcohol induced conditions.

Section 4. Duty to Report Abuse of an Elder

Failure to report cases of suspected abuse or neglect of an Elder or vulnerable adult is a violation against the Kenaitze Tribe and subject to fine under Section 6 of this Ordinance. The following people are required to report cases of suspected abuse or neglect of an Elder to the Kenaitze Tribal Court. This duty shall apply 24 hours per day 7 days per week.

  1. The Elder's family or caretaker;
  2. Any tribal employee, including the Tribal Administrator;
  3. Any tribal appointed or elected official;
  4. Any employee of a tribally owned business, even if not managed by the Tribe;
  5. Any medical doctor or dentist, nurse, physicians' assistant, human services worker, or Elder service provider;
  6. Any person or agency or employee of such agency with a fiduciary duty to the Elder such as a lawyer, accountant, financial institution, property manager, or conservator;
  7. Any person who has good reason to suspect that an Elder had been or is being abused or neglected; or
  8. Volunteers of the Kenaitze Indian Tribe.

Section 5. Immunity for Reporting and Confidentiality

A person who in good faith reports suspected abuse or neglect of an Elder is immune from any civil or criminal suit based on that person's report. The name of a reporter who reports abuse as required by this Chapter is confidential and shall not be released to any person unless the reporter consents to the release because it would be necessary to protect the Elder. No evidentiary privilege except for the attorney-client privilege may be raised as a justifiable defense or reason for failing to report suspected Elder abuse or for testifying as required by this Chapter.

Section 6. Failure to Report, False Reports, and Penalty for Retaliation

  1. Failure to Report. Any person who is required by this Chapter to report suspected Elder abuse and fails to do so is subject to a fine of up to $500.00 if found guilty by the Kenaitze Tribal Court. The tribal court shall assess this penalty only after petition, notice, and opportunity for hearing, and a determination that the person has a mandated duty to report, had good reason to suspect elder abuse or neglect, and failed to report as required. The Court shall follow procedures for notice and hearing as set forth in the Kenaitze Court Code at Chapter 2, Sections 15 and 16.
  2. False Reports. Any person who makes a report of suspected Elder abuse knowing it to be false is subject to a fine of up to $500.00 if found guilty by the Kenaitze Tribal Court, and in addition, any of the sentencing options that the Court has at its discretion in the Kenaitze Court Code, Chapter 2, Section 18. As set forth in the Kenaitze Court Code, Chapter 2, Sections 17, such cases may also be referred to the tribe's Traditional Conflict Resolution Program if appropriate. The tribal court shall assess a penalty or impose a sentence only after petition, notice, and opportunity for hearing, and a determination that the person made a report knowing it to be false. The Court shall follow procedures for notice and hearing as set forth in the Kenaitze Court Code at Chapter 2, Sections 15 and 16.
  3. Retaliation. If a person retaliates for the reporting of a suspected case of Elder abuse, the Kenaitze Tribal Court may utilize the full range of sentencing options at its discretion. A sentence shall be imposed only after a petition, notice, and opportunity for hearing, and a determination that the person engaged in such retaliation. The Court shall follow procedures for notice and hearing as set forth in the Kenaitze Court Code at Chapter 2, Sections 15 and 16.

Section 7. Procedures for Reporting, Investigation, Petition, Notice and Hearing

  1. Reporting. Reports of suspected elder abuse shall be made to the Program Director or other designated person of the Tyotkas Elders Program. The Elders Program shall be responsible for assigning an investigator or requesting the Court's appointment for an investigator.
  2. Investigation: The person assigned to investigate the elder abuse shall investigate the report of harm within 24 hours or one working day and shall immediately prepare a report.
    1. Investigators: Persons who shall be permitted to investigate elder abuse shall be any of the following: a qualified investigator through the tribal Elders Program, a qualified investigator through the tribal Family Services Program, or a qualified investigator appointed by the Kenaitze Tribal Court.
    2. Guidelines for Investigation: An investigator that is appointed shall exercise cultural competence and awareness in completing the investigation into elder abuse. The Elders Program and/or the Family Services program have the authority to establish guidelines for investigations into the abuse of elders. If such guidelines are established, they shall be adhered to in reporting to the court. If no such guidelines have been established, the investigator shall consider, at a minimum, the following: the position of the elder and his/her family members and caretaker; reports or statements from agencies or institutions that have information regarding the elder's circumstances; reports of medical providers; any other reports of abuse or neglect that have been made; and the elder's living conditions. The investigator shall make reasonable efforts to meet in person with the elder, his/her family, caretaker, and all other persons with relevant information. If the investigator is unable to meet in person with any of these people, he/she shall document in the report why in-person contact was not possible.
    3. Contents of Investigator's Report. The investigators report shall include at least the following information:
      1. The Elder's name, address or location, telephone number;
      2. The name, address or location, telephone number of the person(s) who is suspected of abusing the Elder;
      3. The nature and degree of incapacity of the Elder;
      4. The name, address or location, telephone number of witnesses;
      5. The name, address or location, telephone number of the Elder's caretaker;
      6. A description of the acts which are complained of as abusive; and
      7. Any other information that the investigators believe might be helpful in establishing whether abuse has occurred.
    4. Completion of Investigation. Upon completion, the investigator shall submit his or her report to the Director of the Tyotkas Elder's Program. Upon review of the investigator's report, the Director shall decide whether there is sufficient evidence to require legal action. If the Director determines that there is sufficient evidence to require legal action, it shall refer the matter to the Tribal Court by filing a Petition to Use the Tribal Court. A copy of the investigator's report shall be provided with a copy of the petition.
    5. Records of Investigations. Any investigation report filed shall remain on file and not be destroyed for a period of seven years, even if it is determined that there is not sufficient evidence to pursue legal action. However, if the investigating agency determines that the report was made in bad faith, it shall be destroyed immediately after the investigation is completed if the evidence is insufficient to show abuse or neglect.
  3. Petition and Hearing. If a Petition is filed following an investigation of elder abuse, it shall be the role of the tribal court to determine if Elder abuse has occurred. The determination shall be made only after a petition of suspected abuse has been filed, an investigation has taken place, notice of a hearing is given to all parties, a hearing is held, and the Court finds proof that is clear and convincing.
    1. Procedures: Notice and hearing procedures shall be as outlined in the Kenaitze Court Code at Chapter 2, Sections 15 and 16.
    2. Services to the Elder: If the Court finds the elder has been abused, it may provide service as outlined in Section 8, below.
    3. Consequences for Perpetrator: If the Court has found a person to have committed elder abuse pursuant to this section, it has the following options available to it:
      1. Referral to Traditional Conflict Resolution Program: The court may, at any point during the case involving elder abuse, refer the matter to the tribe's Traditional Conflict Resolution Program as set forth in the Kenaitze Court Code at Chapter 2, Section 17.
      2. Options for Sentencing: If the Court determines that a person had committed elder abuse, it may impose any of the sentencing options set forth in the Kenaitze Court Code at Chapter 2, Section 18.

Section 8. Elder Protective Services and Placements

  1. Voluntary Placements and Protective Services: Protective services or placements may be provided on a voluntary basis by the Kenaitze Tribal Court when requested by any abused elder and the Court finds the elder to be in need of services. To request voluntary services, the Elder can file a Petition for Voluntary Protective Services. The Court shall act on such petitions within 10 days. These services or placements shall be provided in the manner least restrictive to the elder's liberty and rights and consistent with the elder's welfare and needs. Such services and placements shall be provided, subject to available funding and resources, and only as determined necessary by the Kenaitze Tribal Court.
    1. Duration of Services: Voluntary services shall be provided to the Elder for no more than 30 days at a time. At the end of each period, the tribe shall reassess the elder's needs before agreeing to continue providing services and placement. Voluntary placement shall not be continued without a court order if the elder has been in placement for more than 90 days.
  2. Involuntary Protective Placement and Services: Upon an Order of the Kenaitze Tribal Court, involuntary protective services or placement shall be provided to any Elder who is incapacitated or who is abused. These services or placements shall be provided in the manner least restrictive to the Elder's liberty and rights and consistent with the Elder's welfare and needs. Involuntary placement or services shall be made only on an emergency basis (see procedures in Emergencies in Section 9, below).
  3. Funding of Protective Placements and Services: Protective services or protective placements, whether made on a voluntary or involuntary basis, shall be provided subject to available funding and resources and only as determined necessary by the Kenaitze Tribal Court. The Elder, and where appropriate the Elder's family, if able to do so, shall pay for all or part of the costs of services or placement provided to them.
  4. Plan for Delivery of Services to Elders: The Elder's Program and/or tribal social services provider shall develop a plan for the delivery of protective services to elders. In addition, a process for conducting a comprehensive physical, mental, and social evaluation of the elder shall be established.

Section 9. Emergencies

  1. Emergency Action: The Court shall issue an emergency protection order authorizing protective services or protective placement on an emergency basis upon receiving clear and convincing evidence that an Elder:
    1. is at risk of immediate physical harm,
    2. is incapacitated and cannot consent to protective services, or
    3. an emergency exists
  2. Petition: Any person who believes that that Elder is at risk may seek an emergency protective order by filing a Petition. The petition shall contain the name, address, location, and interest of the petitioner; the name, address, location and condition of the Elder; the nature of the emergency; the nature of the Elder's incapacity; the proposed protective services, and where applicable, protective placement; the attempts, if any to secure the Elder's consent to services; any other facts the petitioner believes will assist the court.
  3. Orders: The Tribal Court's Emergency Order shall contain the following information:
    1. Services: The Order shall specifically state: 1) the emergency services to be provided to the Elder which may include, if necessary, protective placement; 2) what agency or person shall provide the services; and 3) any other information relevant to the existing emergency.
    2. Hearing date: The emergency protective order shall also specify when a hearing will be held. As set forth below in subsection E, this hearing must be held no later than 72 hours after the issuance of the emergency protective order.
    3. Duration: The emergency protection order shall be issued for a maximum of 20 days. It may be renewed one time for a maximum of 20 days provided that the evidence shows that the emergency is continuing.
  4. Notice: The copy of the Emergency Order and a copy of the Petition must immediately be provided to the Elder, the Elder's family and the Elder's caretaker. If possible, the notice shall be provided prior to implementing the protective services.
  5. Hearing: The tribal court shall hold a hearing on a Petition to provide protective services or placement to an elder within 72 hours after the Emergency Order is issued. The Elder, the Elder's Family and the Elder's caretaker shall be provided at least 24 hours advance notice of the hearing. The Elder, the Elder's Family and the Elder's caretaker shall be provided an opportunity to be heard at the hearing and to ask questions of the investigator or other persons that are alleging that the Elder is in need of services. If the Court finds that there is clear and convincing evidence that the Elder is in need of protective services, it may continue the Emergency Order for up to 20 days. If the Court does not find such evidence exists, then it shall dismiss the Emergency Order.
  6. Forcible entry: The Kenaitze Tribal Court may authorize a forcible entry to enforce the emergency protection order after attempts to gain voluntary access to the Elder have failed.
  7. Risk of Irreparable or Immediate Harm: If there is good cause to believe that an emergency exists and that an Elder is at risk of immediate or irreparable harm and, based on personal observation, an investigator and/or law enforcement officer believes that the Elder will be irreparably harmed during the time an emergency protective order is secured, the investigator and/or law enforcement officer shall immediately protect the Elder including, where necessary, transporting the Elder for medical treatment or to an appropriate facility. Immediately after the Elder is protected, a petition for an emergency order shall be filed and the procedures for securing such an order shall be followed.

Section 10. Rights of Elders, Their Families and Caretakers

Elders and family of Elders have the following rights:

  1. An Elder, the Elder's family, and caretakers shall be informed about an elder abuse investigation before it begins unless an emergency exists.
  2. An Elder may refuse to accept elder protection services (even if there is good cause to believe that the elder has been or is being abused), provided that he/she is able to care for him/herself and/or has the capacity to understand the nature of the services offered.
  3. The Elder's family or caretaker may refuse for themselves, but not for the Elder, elder protection services offered pursuant to this Code.
  4. An Elder, the Elder's family, or caretaker may refuse to allow an investigator into their home. In this situation, the investigator may seek a warrant for forcible entry before entering the home.
  5. The Elder, Elder's family and caretaker have the right to notice of hearings and the right to attend any proceeding pertaining to the determination of the Elder's situation. The Elder shall be present at the hearings unless the Tribal Court determines that the Elder's health would be at risk.
  6. The Elder, Elder's family and caretaker have the right, at their own expense, to seek an independent medical, psychological, or psychiatric evaluation of the Elder. These records shall be released to the Kenaitze Tribal Court if the Elder or caretaker wants the Court to consider such evaluations.
  7. Whenever it appears that an investigation may lead to criminal charges being filed under the State's criminal statute, the investigator shall inform the elder's family and caretaker of their rights as allowed by the Indian Civil Rights Act.

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