Perry denies LDS motion to kill sex abuse cases
By Elizabeth Hardin-Burrola
Gallup Independent correspondent
June 2, 2018
WINDOW ROCK – Window Rock District Judge Carol Perry has denied a motion by attorneys for the Church of Jesus Christ of Latter-day Saints seeking to dismiss five sex abuse lawsuits filed by Navajo plaintiffs.
The lawsuits were filed in Navajo Nation tribal courts as personal injury complaints alleging the sexual abuse of Native children enrolled in the Mormon Church’s now defunct Indian Student Placement Program. Church attorneys had argued the Navajo courts lacked jurisdiction over them as non-Indian defendants and because the alleged sexual abuse took place in off-reservation Utah communities.
A court hearing on the matter was held in the Window Rock District Court April 9.
In a ruling dated May 25, Perry denied the church’s motion to dismiss for lack of jurisdiction and instead ruled the Navajo Nation Courts have proper personal and subject matter jurisdiction.
“Based upon review of the record, the law and the arguments presented, this Court finds It has proper personal and subject matter jurisdiction over the above stated case,” Perry stated in her ruling for each of the five cases.
Perry cited jurisdiction based on the Treaty of 1868, Navajo Nation laws and the “application of the Montana Test,” which refers to the U.S. Supreme Court decision in Montana v. United States.
According to Perry’s ruling, the paramount issue in the abuse cases concerns the best interest and well-being of Navajo children, along with the importance of protecting Navajo sovereignty.
“This Court’s decision to assert jurisdiction is made in the best interest of Navajo children because in our culture children are viewed as the future, ensuring the existence and survival of the Navajo people in perpetuity,” the ruling states. “Furthermore, it is the duty of this Court to protect the Navajo Nation’s sovereignty including customary laws and our sacred land.”
Regarding the Montana Test, Perry’s ruling stated the Navajo Courts have subject matter jurisdiction in the case because the Navajo plaintiffs’ claims meet the consensual relationship exception under Montana court decision.
Perry explained a consensual relationship and contract was established between representatives of the LDS Church and the parents of the Navajo plaintiffs when the parents agreed to and permitted the participation of their children in the church’s Indian Student Placement Program.
The judge also ruled that other off-reservation defendants were also under the Navajo Court’s jurisdiction: “While the alleged sexual abusers or those who allegedly failed to report instances of abuse may have never visited the Navajo Nation, this Court asserts jurisdiction because they have voluntarily participated in the program by accepting Navajo children into their Utah homes – thus acting as agents and parties to the contract.”
Salt Lake City attorney David J. Jordan, the lead attorney for the LDS Church, declined to comment when contacted Friday.
“It is not our practice to comment on court rulings,” Jordan said in an email.
Jordan had been asked for a response to Perry’s ruling, and he had been asked about the church’s legal options.
However, William Keeler of Gallup and Craig Vernon of Coeur d’ Alene, Idaho, attorneys for the Navajo plaintiffs, were pleased with the ruling and agreed to an interview on Thursday, the day they received a copy of Perry’s decision.
“It’s in the order, but I think what comes out of it is it’s the well-being of the Navajo children, and also it’s a clear victory for tribal sovereignty,” Keeler said of the decision’s key points.
Perry’s ruling, Vernon said, makes it clear that Navajo Courts have jurisdiction over matters concerning Navajo children “whether they’re inside or outside” of the Navajo Nation.
“I think the second take-away,” Vernon added, “is she is going to protect sovereignty, and she is going to repel any attacks on tribal sovereignty.”
Keeler and Vernon said they have another mediation session scheduled with attorneys for the LDS Church in Santa Fe on July 6. The mediator, Frank “Dirk” Murchison of Taos, previously mediated settlements for three of their other Navajo clients who also alleged they were sexually abused as children in the Mormon Church’s Indian Student Placement Program. Murchison, Vernon noted, successfully mediated the settlement agreement with sex abuse survivors in the Diocese of Gallup bankruptcy case.
In spite of the scheduled mediation, Keeler said he expects LDS church attorneys will file an appeal. That appeal would then go before the Navajo Nation Supreme Court.
“Frankly, we hoped that they would take a more pastoral approach,” Vernon said.
“The Mormon Church is a church,” he said. “And we would hope they would take a more pastoral approach and decide that, hey, we’ve got a mediation coming up on July 6. Maybe it’s time to try to allow these people to have a little bit of justice and to end this attack on tribal sovereignty.”
“Because an appeal is two things,” Vernon added. “That’s going to delay or deny justice to our clients, and it’s also a coordinated attack on tribal sovereignty. That’s what an appeal signals.”