|Clergy Sex Suit Clears Hurdle
September 14, 2011
Published in the Gallup Independent, Gallup, N.M. on Sept. 14, 2011
Clergy sex suit clears hurdle
NN court reverses dismissal
By Elizabeth Hardin-Burrola
The first clergy sex abuse lawsuit filed in the Navajo Nation courts passed a major hurdle this week with an opinion issued by the Navajo Nation Supreme Court.
In an opinion released Sept. 9, the Supreme Court reversed the case dismissal by Shiprock District Court Judge Genevieve Woody in John Doe BF v. the Diocese of Gallup, et al. The case has now been remanded back to district court.
The plaintiff in the case, an adult Navajo man living in Oregon, filed the personal injury complaint in November 2007 against Charles “Chuck” Cichanowicz, a former Franciscan priest who worked for the Roman Catholic Diocese of Gallup in parishes on the Navajo Nation. The plaintiff alleged he was sexually abused as a teenage boy by Cichanowicz in the mid-1980s when Cichanowicz served as a priest at Christ the King parish in Shiprock. In addition to Cichanowicz, other defendants are the Diocese of Gallup, the Franciscan Friars of St. John the Baptist of Cincinnati and the Franciscan Friars Province of Our Lady of Guadalupe in Albuquerque, the two religious orders that supervised Cichanowicz in the 1980s.
The plaintiff’s attorneys, Patrick Noaker, of St. Paul, Minn., and William R. Keeler, of Gallup, also represent two other Navajo men who have filed similar sex abuse complaints in Window Rock District Court.
Woody dismissed the Shiprock case on Jan. 19, 2010. She found jurisdiction over the defendants on the basis of the Treaty of 1868, but ordered dismissal after determining the alleged victim had failed to file his complaint within the required statute of limitations period. Woody also cited a status hearing on Sept. 22, 2009, in which she said the plaintiff’s attorneys failed to bring in witnesses or psychological professionals to support the plaintiff’s assertion of delayed insight or delayed discovery that the sexual abuse was the cause of his injury.
Noaker and Keeler filed a notice of appeal on Feb. 11, 2010. The Navajo Nation Supreme Court heard oral arguments at the Shiprock Chapter House on June 27, 2011. In its opinion, the Supreme Court addressed the issues of jurisdiction and statute of limitations, as well as the circumstances regarding the status conference of Sept. 22, 2009.
“Navajo Nation law is clear that the civil authority of our courts to regulate non-Indian activity within the external territorial boundaries of the Navajo Nation is absolute and stems from inherent authority as recognized in the Treaty of 1868,” the court stated. However, it continued, “a finding that the action arose within our territorial boundaries must be made ... (and) the district court erred in failing to make sufficient factual findings and legal conclusions to meet the federal common law test for jurisdiction.”
Citing jurisdiction issues, the court asserted:
• “federal court rulings profoundly affect tribal civil authority involving non-members in ways that have become ‘erratic and standardless (sic).’”
• “With the passage of time, it has become clear that tribal jurisdiction over non-members is under increasing attack in federal common law.”
• “In the present climate, this governmental responsibility requires the district courts, however scarce our resources, to make a complete jurisdictional record that will withstand external jurisdictional challenges.”
• “We exhort the Navajo Nation Council to pass legislation that would require a non-member litigant to provide notice to the Navajo Nation upon initiation of that litigant’s challenge to Navajo Nation subject matter and personal jurisdiction; and further require the Navajo Nation to file a brief as amicus on the jurisdictional issue.”
The Supreme Court also examined the circumstances surrounding the status conference of Sept. 22, 2009. Woody had directed the parties to bring evidence and witnesses to the hearing and later dismissed the plaintiff’s case partly on the basis that his attorneys failed to do so at the hearing.
In contrast, the Supreme Court said, “It is clear from the plain wording of both Federal and Navajo Rule 16 that the use of pretrial conferences as a motion hearing is clearly not a use for which the conference is intended, especially where the outcome might be dismissal of the entire action.”
The Supreme Court found the district court “erred in converting a status conference into a motion hearing, (it) never met with the parties for pretrial purposes,” and it never ruled on Noaker and Keeler’s request to serve interrogatories on the defendants.
“Upon remand, the district court shall convene a pretrial conference and ensure that the parties are given reasonable opportunity to present material impacting on the timing of the filing of the complaint and other evidence relevant to the dismissal motions,” the Supreme Court stated.
Statute of limitations
Finally, the Supreme Court addressed the issue of statute of limitations. The court noted the alleged victim asserted he was unable to discover that the sexual abuse was the cause of his injury for more than 20 years, and it noted the “district court gave little weight” to the alleged victim’s assertion of delayed insight or delayed discovery. The Supreme Court pointed out that Navajo courts haven’t before been asked to interpret statute of limitations in relation to childhood sex abuse cases.
“Tracing psychological and mental injuries over many years primarily to this abuse and not to other causes will not be a simple task,” the court said. “However, we hold that this is a factual issue suitable for a jury to consider at trial, not weighed by a judge in a preliminary motion. Our courts have a duty, in parens patriae, to ensure allegations of harm to our children are fully heard and not dismissed on mere technicalities.”
The Supreme Court agreed that “reasonable diligence” in assessing whether a reasonable person could have discovered the cause or nature of an injury sooner should take into account “a person’s upbringing, culture and circumstances.”
“We interpret justice through Dine eyes. We do not blindly accept what the phrases have been taken to mean by other societies. To determine what is reasonable for member of the Navajo Nation, it is entirely appropriate to consider factors such as historical trauma and the deference expected of a people by authority figures of a colonizing culture.”
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