On Wednesday, a federal judge in Salt Lake City ruled that the Navajo Nation has jurisdiction in a quartet of cases filed earlier this year by tribal members alleging that they were sexually abused during their time in a foster program operated by the Mormon Church from 1947 to 2000. The four tribal plaintiffs (now referred to as “the Doe Defendants”) filed their suits in the Window Rock District of the Navajo Nation Court last spring.
Rather than responding to the complaints at the tribal court level, the church instead countersued the Navajo plaintiffs in federal court, asking Judge Robert Shelby to dismiss all four cases for lack of jurisdiction, as well as an injunction to stay the proceedings from moving forward under tribal jurisdiction.
In a dual decision addressing both complaints, Shelby denied both the church’s motion to dismiss and the injunction, writing that the Mormon Church must first exhaust all remedies in tribal court.
The Mormon Church did not respond to requests for comment on Shelby’s decision.
Referring to the limited exceptions in which tribes could exercise jurisdiction over non-Indians on Indian land, Shelby wrote that the Supreme Court had established the scope of “consensual relationships” and the nexus between tribes and non-members in regards to civil tort law in previous decisions.
But in Dollar General v. Mississippi Band of Choctaw Indians, in which the Fifth Circuit ruled and the Supreme Court affirmed with a split decision earlier this year, Shelby said the courts had concluded that “it was appropriate to look to the general instead of the highly specific when determining if the activity of non-members had such an effect.”
Further, he wrote that it was necessary to allow the Navajo Nation courts to develop the factual record, because “the existing record is significantly incomplete concerning the nature and scope of the agreements [between the Mormon Church and the defendants], and any nexus between those agreements and the alleged conduct” alleged in the Doe Defendants’ complaints.
By ordering the Mormon Church to first exhaust its legal remedies in tribal court, Shelby said that the Navajo Nation judicial system would then be able to assess the facts of the case and whether jurisdiction was on the table. Further, it would allow the Navajo courts time to analyze the complex legal and factual issues at hand—thus advancing Congress’s explicit policy in promoting tribal self-governance and the development of tribal court jurisprudence.
In August, the Navajo Nation filed a motion to intervene, saying that because the Mormon Church "maintained churches on the reservation ... proselytized members on the reservation, entered into agreements with tribal members on the reservation, took tribal children from their homes on the reservation and were notified of, and failed to report, abuse on the reservation,” that the cases fall under its jurisdiction.
In its petition, the Navajo Nation said that by attempting to remove the cases to federal court without exhausting remedies in tribal court first challenged the sovereignty of the tribe, “which has substantial interest in defending these interests.”
“We are very pleased that Judge Shelby properly upheld the right of the Navajo Nation Courts to review this claim in the first instance,” said Navajo Nation attorney general Ethel Branch in a statement to ICTMN.
Attorneys for the plaintiffs also praised Judge Shelby’s decision.
“Our clients are pleased that the Utah Federal Court lawsuit, filed against them by the Mormon Church, has been dismissed,” said Craig Vernon, who represents the four Navajo defendants in the federal case along with William Keeler.
“We commend the Court for following well-established law in making this reasoned decision,” said Keeler. “We hope that the Church will now allow this case to be decided on its merits rather than engage in more legal maneuvering to get the case, originally filed in Navajo Nation, dismissed on technicalities. Our clients no longer want to suffer in shame or silence. They want answers. They want to know why this happened.”
Vernon also said that Judge Shelby’s decision was an important affirmation of tribal jurisprudence and sovereignty.
“While this decision is important to our clients,” he said, “it is also a victory for the continued sovereignty of the Navajo Nation, as well as all tribes who entered into treaties with the United States.”