Diné judge to rule on sex abuse cases
By Elizabeth Hardin-Burrola
Gallup Independent correspondent
April 10, 2018
(This updated version includes two minor copy editing corrections.)
WINDOW ROCK – A Navajo Nation judge will decide the fate of a motion seeking to dismiss five childhood sex abuse lawsuits filed against the Church of Jesus Christ of Latter-day Saints.
After listening to oral arguments during a motion hearing Monday, Window Rock District Judge Carol Perry is slated to rule if the abuse lawsuits can proceed in the Navajo Nation courts as the Navajo plaintiffs are requesting or whether the cases will be dismissed as attorneys for the Mormon Church are arguing.
The lawsuits were filed in the tribal courts as personal injury complaints alleging the sexual abuse of Native children enrolled in the LDS Church’s now defunct Indian Student Placement Program. However, jurisdictional issues have plagued the cases as they have bounced back between the tribal court and a Utah federal court.
In the words of Gallup attorney William R. Keeler to Perry on Monday, a key phrase in the litigation might be described as, “Location, location, location.”
The first lawsuit was filed in March 2016, on behalf of two adult siblings, a brother and sister identified only as RJ and MM, who claimed they had been sexually molested as students in the church placement program. Over the next 18 months, five more Navajo plaintiffs filed similar lawsuits.
RJ, MM and at least one other plaintiff attended Monday’s hearing. RJ’s case is still pending; however, MM and another plaintiff agreed to a settlement with the LDS Church in 2017 after mediation discussions. According to Keeler, an additional abuse survivor agreed to a settlement, without filing a lawsuit. The remaining civil complaints were consolidated.
In comments before Perry, attorneys for both sides agreed the alleged sexual abuse of the Navajo plaintiffs took place in off-reservation communities, either in Utah or Arizona.
A point of disagreement, however, concerns whether the conduct of LDS Indian Student Placement Program officials who worked on the Navajo Nation provides the Navajo Nation courts the necessary legal jurisdiction over the cases.
Attorneys for the plaintiffs, Craig Vernon of Coeur d’ Alene, Idaho, and Keeler, argue the conduct of those placement program officials place the jurisdiction under the Navajo courts. Attorneys for the Mormon Church, David J. Jordan of Salt Lake City, and Lynn Isaacson of Gallup, argue the conduct – and sometimes the “non-conduct” – of those placement program officials place the cases outside of jurisdiction of the Navajo courts.
During Monday’s court hearing, attorneys for both sides faced off in Perry’s small courtroom, while awkwardly sitting shoulder to shoulder at a shared table. Two additional church attorneys had to sit in the courtroom gallery because of lack of space at the table.
Legal arguments during the nearly two-hour hearing dissected provisions of the Navajo Nation’s Treaty of 1868, the U.S. Supreme Court’s decision in Montana v. United States, and the Navajo Nation’s Supreme Court’s ruling in the John Doe BF v. Diocese of Gallup clergy sex abuse case.
Jordan, whose arguments dominated the majority of the nearly two-hour hearing, repeatedly advised Perry that Navajo courts lack subject-matter jurisdiction because the alleged “tortious conduct,” or wrongful conduct, occurred off the Navajo Reservation. Jordan pointed to the John Doe BF court decision as providing a good explanation of how subject-matter jurisdiction works on the Navajo Nation.
Jordan also argued that LDS Church placement program officials on the Navajo Reservation who did not disclose reports of sexual abuse were not guilty of tortious conduct.
“Non-conduct is not conduct,” Jordan said. “Failing to do something is not conduct.”
In response, Keeler pointed back to the decision of U.S. District Judge Robert Shelby who rejected LDS Church jurisdictional arguments in November 2016. Instead, Shelby ruled the church “must first exhaust their remedies” in the Navajo Nation courts before seeking redress in the federal courts.
“What the judge was saying was you have to look to Montana to figure this out,” Keeler said, referring to the Montana v. United States decision.
Keeler and Vernon argued their clients’ cases meet the exceptions outlined in the Montana case and requested Perry allow the cases to move forward.
Vernon disputed Jordan’s assertion that placement decisions regarding Native students occurred off-reservation, explaining placement decisions were made on the reservation, particularly at an LDS office in Chinle, Arizona. Vernon told Perry that some student disclosures of abuse happened on the Navajo Reservation, and some negligent conduct of placement program officials also took place on the reservation.
Frustration and anger
After the hearing concluded, two plaintiffs expressed frustration and anger toward LDS Church officials and their attorneys. Keeler allowed them to make brief remarks in his presence.
RJ, the plaintiff who filed the first lawsuit, had responded with visible anger during the court hearing, particularly when Jordan made a number of assertions, including one about RJ’s complaint.
“The Mormon Church did actually do this to me,” RJ said, adding he was willing to swear “on a stack of Bibles” or his mother’s grave.
“I have my witnesses as well,” he said, explaining he was not afraid to testify on the witness stand. In his lawsuit, RJ stated he had disclosed his abuse to a number of LDS officials, who are listed by name in the complaint.
“What is a child’s innocence worth to people?” he asked. “Not all the money in the world will replace my innocence.”
The second person, a woman identified as plaintiff BN, explained she is still a member of the LDS Church. She said Mormon officials teach church members the importance of loving and understanding one another, believing in Christ, praying, fasting and looking to the Holy Spirit for guidance. However, BN said, she doesn’t believe LDS Church officials have demonstrated these same faith actions in their response to the Navajo plaintiffs in these abuse cases.
“When have they done this?” she said.
Instead, BN said, the LDS Church sends “pit bull” attorneys from Utah to “eke away at Navajo Nation sovereignty” and attack Navajo victims “as if we are the ones who are liars.”
BN expressed frustration with the focus on legal jurisdiction during the hearing rather than on the “rape and molestation” the plaintiffs endured.
“God does not care about location. God knows it happened,” BN said. “It’s pitiful. It’s a tragedy.”
BN said she has a question for the LDS Church’s president and 12 Apostles. “Have you fasted and prayed about my case?” she said.