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86539368.2 0056812-00002
David J. Jordan (1751)David J. Williams (9186)
STOEL RIVES LLP
201 S Main Street, Suite 1100Salt Lake City, UT 84111
Telephone: (801) 328-3131
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
THE CORPORATION OF THEPRESIDENT OF THE CHURCH OF
JESUS CHRIST OF LATTER-DAY
SAINTS, a Utah corporation; LDS
FAMILY SERVICES
Plaintiffs
v.
RJ MM, and BN, individuals
Defendants.
AMENDED MOTION FOR
TEMPORARY RESTRAINING
ORDER/PRELIMINARY INJUNCTION
Civil No. 2:16-cv-00453-RJS
Judge Robert J. Shelby
STATEMENT OF RELIEF SOUGHT AND GROUNDS THEREFOR
Defendants RJ, MM, and BN have filed claims against these Plaintiffs in the Navajo
Nation District Court seeking damages for alleged acts of child abuse occurring while they were
living with nonmember host families in Utah cities and towns outside the Navajo
reservation. Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiffs hereby move
for a temporary restraining order and a preliminary injunction precluding Defendants from
proceeding with their claims in Navajo Tribal Court.
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This Motion is made on the following grounds:
1. The Navajo Tribal Court lacks subject matter jurisdiction over Plaintiffs because
none of the alleged conduct took place on the Navajo reservation;
2. Plaintiffs will suffer irreparable harm if forced to litigate in the Navajo Tribal
Court;
3. The balance of harms supports enjoining the proceedings in the Navajo Tribal
Court; and
4.
The public interest will not be harmed by enjoining the Navajo Tribal Court
proceeding.
I.
INTRODUCTION
United States Supreme Court precedent recognizes that Indian tribes may exercise civil
subject-matter jurisdiction over nonmembers in limited circumstances “‘where tribes possess
authority to regulate the activities of nonmembers,…’” Nevada v. Hicks, 533 US 353, 358 n.2
(2001) (quoting Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997).) That said, the Supreme
Court has never decided a case in which a tribal court was found to have jurisdiction over a
nonmember, even for activities within reservation boundaries. See id. See also Montana v.
United States, 450 U.S. 544 (1981); Strate, 520 U.S. 438. What is more, the Supreme Court has
never suggested that a tribal court could exercise jurisdiction over the off-reservation activities of
a nonmember. Indeed, the Court has emphasized that tribal sovereignty stems from the tribes’
right to control their land and does not extend beyond reservation boundaries. See, e.g., Plains
Commerce Bank v. Long Family Land and Cattle Co., 554 U.S. 316, 328-332, 128 S.Ct. 2709,
2719-20 (2008).
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Here, Defendants have filed claims against these Plaintiffs in the Navajo Nation District
Court (the “Tribal Court”) seeking damages for alleged acts of child abuse occurring while they
were living with nonmember host families in Utah cities and towns outside the Navajo
reservation. These claims far exceed the well-established jurisdictional limits of tribal courts.
Simply put, because the claims involve nonmember activity outside the reservation, the Tribal
Court has no jurisdiction. As such, Plaintiffs seek injunctive relief precluding Defendants from
proceeding with their claims in the Tribal Court.
II.
RELEVANT FACTS
1. In two separate actions, Plaintiffs (hereinafter the “Church Entities”) have been
sued in the Tribal Court by Defendants RJ, MM, and BN1, who are members of the Navajo tribe.
See RJ and MM Amended Complaint, attached hereto as Ex. A, at ¶¶ 6-7; BN Complaint,
attached hereto as Ex. B, at ¶¶ 5-6.
2. Doe Defendants claim that, between 1965-1972 (BN) and 1976-1983 (RJ and
MM), they participated in the ISPP; that, as part of the ISPP, they agreed to be placed in the
homes of host families outside the Navajo reservation to attend public school, and that, while
living in those homes, they were sexually assaulted. See Ex. A at ¶¶ 7, 14-24, 27; Ex. B at ¶¶ 6,
13-18, 21.2 Doe Defendants do not allege that any abuse occurred on Navajo tribal lands.
Instead, every act of abuse that they allege occurred in Utah, far from the reservation.
1 RJ, MM, and BN are now adults but, because they are alleged to have been sexually abused as
children, fictitious names have been used to protect their privacy. Hereafter, they will be
referred to as “Doe Defendants.”
2 Unfortunately, but not surprisingly, because Plaintiffs’ claims stretch back more than 40 years,
some witnesses have passed away.
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using both traditional Navajo healing methods and medical services; if needed.” Ex. A at ¶¶ 54-
73; Ex. B at ¶¶ 48-68.
III.
ARGUMENT
It is well-established that courts have the inherent authority to grant temporary restraining
orders “‘to preserve the status quo pending a final determination of the rights of the parties,’ in
order ‘to preserve the power to render a meaningful decision on the merits.’” Resolution Tr.
Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir. 1992) (quoting Lundgrin v. Claytor , 619 F.2d 61,
63 (10th Cir. 1980); Tri-State Generation & Transmission Ass’n, Inc. v. Shoshone River Power,
Inc., 805 F.2d 351, 355 (10th Cir. 1986)). The Tenth Circuit requires that the Church Entities
demonstrate four factors to establish that temporary injunctive relief is appropriate. They are: (1)
a substantial likelihood of success on the merits; (2) irreparable injury if the injunction is denied;
(3) the threatened injury to the movant outweighs the injury to the non-movant; and (4) the
injunction would not be adverse to the public interest. Dominion Video Satellite, Inc. v.
EchoStar Satellite Corp., 269 F.3d 1149, 1154 (10th Cir. 2001); Stevens v. Ocwen Fed. Bank
FSB, No. 2:06-CV-397 TS, 2006 WL 1409139, at *1 (D. Utah May 17, 2006) (“[t]he standard
for granting a TRO is the same as that for a preliminary injunction”). The Church Entities satisfy
each of these elements.3
3
With regard to the preliminary injunction factors, the Tenth Circuit has held that each factor isnot necessarily given equal weight.
The touchstone for obtaining [injunctive] relief is a showing of irreparable harm coupled
with a substantial likelihood of success on the merits. “There must exist a probably right
and a probable danger.” However, where irreparability exists and the balance of
hardships tips in favor of a movant, the probability-of-success requirement may besomewhat relaxed: “(I)t will ordinarily be enough that the plaintiff has raised questions
going to the merits so serious, substantial, difficult and doubtful as to make them a fair
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A.
THE CHURCH ENTITIES WILL PREVAIL ON THE MERITS
1. Tribal Courts Have Strictly Limited Jurisdiction Over Nonmembers
Whether tribal courts have jurisdiction over nonmembers is a federal question. Plains
Commerce Bank , 554 U.S. at 324. Far from possessing general jurisdiction, see Nevada, 533
U.S. at 367, tribal courts exercise authority that “centers on the land held by the tribe and on
tribal members within the reservation.” Plains Commerce Bank , 554 U.S. at 327. Consequently,
tribal jurisdiction “generally does not extend to nonmembers.” Id. at 340. As the Supreme Court
has explained, “[f]or powers not expressly conferred upon them by federal statute or treaty,
Indian tribes must rely upon their retained or inherent sovereignty.” Atkinson Trading Co., 532
U.S. at 649-50.
The scope of inherent tribal jurisdiction over non-Indians is controlled by Montana v.
United States, 450 U.S. 544 (1981). Montana reaffirmed that “the inherent sovereign powers of
an Indian tribe do not extend to the activities of nonmembers of the tribe.” Id. at 565 (emphasis
added). This statement of the limits of tribal power over nonmembers has become known as the
“ Montana Rule.”4 While acknowledging the possibility that tribal courts, in appropriate
ground for litigation and thus for more deliberate investigation.”
Community Comm. Co., Inc. v. City of Boulder, Colo., 660 F.2d 1370, 1375-76 (10th Cir. 1981)
(citations omitted). As detailed below, the Church Entities easily satisfy all four elements.
4
Montana addressed the tribe’s power to impose hunting and fishing regulations on non-Indianland within the reservation rather than the adjudicatory authority of the tribal courts. Followingthe Montana decision, in Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997), the U.S. Supreme
court expanded the Montana Rule to the tribe’s adjudicative jurisdiction:
As to nonmembers, we hold, a tribe’s adjudicative jurisdiction does not exceed its
legislative jurisdiction. Absent congressional direction enlarging tribal court jurisdiction, we adhere to that understanding. Subject to controlling provisions in
treaties and statutes, and the two exceptions identified in Montana, the civil
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circumstances, may have civil jurisdiction over nonmember conduct within the reservation’s
borders, the Supreme Court has never endorsed the exercise of civil adjudicatory authority over a
nonmember. And no Supreme Court decision has ever recognized tribal jurisdiction over a
nonmember for conduct outside of tribal lands. See Plains Commerce Bank , 554 U.S. at 332
(“ Montana and its progeny permit tribal regulation of non-member conduct inside the
reservation….”) (emphasis in original).
The Montana Rule governs this case. While the Rule is subject to two limited
exceptions,5 those caveats only apply to conduct occurring on the reservation. See, e.g., Hornell
Brewing Co. v. Rosebud Sioux Tribal Court , 133 F.3d 1087, 1091 (8th Cir. 1998). In Hornell,
for example, the Eighth Circuit stated that the Montana exceptions did not apply because the
conduct at issue occurred outside the reservation.
Indian tribes do, however, “retain inherent sovereign power to exercise some
forms of civil jurisdiction over non-Indians on their reservations.” The operative phrase is “on their reservations.” Neither Montana nor its progeny purports to
allow Indian tribes to exercise civil jurisdiction over the activities or conduct ofnon-Indians occurring outside their reservations.
Id. (citing Montana, 450 U.S. at 465) (emphasis in original); see also Philip Morris USA, Inc. v.
King Mountain Tobacco Co, Inc., 569 F.3d 932, 938 (9th Cir. 2009) (“[T]ribal jurisdiction is, of
authority of Indian tribes and their courts with respect to non-Indian fee landsgenerally “do[es] not extend to the activities of nonmembers of the tribe.”
5 “A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers
who enter consensual relationships with the tribe or its members, through commercial dealing,
contracts, leases, or other arrangements. … A tribe may also retain inherent power to exercise
civil authority over the conduct of non-Indians on fee lands within its reservation when thatconduct threatens or has some direct effect on the political integrity, the economic security, or
the health or welfare of the tribe.” Montana, 450 U.S. at 565-566.
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course, cabined by geography: The jurisdiction of tribal courts does not extend beyond tribal
boundaries.” (citing Atkinson Trading Co., 532 U.S. at 658 n. 12, 121 S. Ct. 1825).)
There is good reason for restricting tribal jurisdiction over nonmembers. As Justice
Souter noted, nonmembers compelled to litigate in tribal courts lack customary procedural
protections:
Tribal courts []differ from other American courts (and often from one another) intheir structure, in the substantive law they apply, and in the independence of their
judges. Although some modern tribal courts “mirror American courts” and “are
guided by written codes, rules, procedures, and guidelines,” tribal law is still
frequently unwritten, being based instead “on the values, mores, and norms of atribe and expressed in its customs, traditions, and practices,” and is often “handed
down orally or by example from one generation to another.” … The resulting lawapplicable in tribal courts is a complex “mix of tribal codes and federal, state, and
traditional law,” which would be unusually difficult for an outsider to sort out.
Nevada, 533 U.S. at 384-385, 121 S. Ct. 2304 (Souter, J., concurring) (quotations and citations
omitted). More significantly, nonmember litigants in tribal court do not enjoy the federal
constitutional right of due process or the guarantees of the Bill of Rights. See Duro v. Reina, 495
U.S. 676, 693 (1990) (“It is significant that the Bill of Rights does not apply to Indian tribal
governments.”).
2. The Navajo Tribal Court Lacks Jurisdiction Here
a. Tribal jurisdiction does not extend to tort claims arising from
abuse that occurred outside the reservation.
The Tribal Court cannot exercise jurisdiction over the Church Entities because the
alleged abuse took place outside the borders of the Navajo reservation. Doe Defendants claim
they were the victims of abuse while living with nonmember host families in various Utah cities
and towns. (Fact ¶ 2). They do not claim that any of the alleged abuse occurred on the
reservation. Without even an allegation that they were injured on Indian lands, Doe Defendants
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more, placement decisions were not made on tribal lands. Rather, those decisions were made by
LDS Social Services employees operating from their offices in Cedar City and Salt Lake City,
assisted by ecclesiastical leaders in the cities and towns of the host families with whom the tribal
members were placed. ( Id.)
Second, Defendant RJ claims he disclosed the abuse to an agent of the Church Entities
when he was visiting the reservation. (Fact ¶ 3.) This allegation cannot give rise to tribal court
jurisdiction, even if true, because hearing a report of abuse is not an “act” occurring on the
reservation. RJ’s complaint is not that the agent acted on the reservation, but that he did not act
in failing to report what he had allegedly heard. Non-action on the reservation cannot give rise
to tribal jurisdiction. See Plains Commerce Bank , 554 U.S. at 332 (“ Montana and its progeny
permit tribal regulation of nonmember conduct inside the reservation….” (emphasis in original).)
Finally, Doe Defendants allege that the failure to report the abuse to their parents, police
or child protective services occurred on the reservation. (Fact ¶ 3.) Again, this allegation is not
of an “act” that occurred on the reservation. At most, Doe Defendants allege the Church Entities
did not do something on the reservation they should have done. Simply put, there is no conduct
occurring on the reservation that would trigger an exception to the Montana Rule and, therefore,
the judicial powers of the Navajo Nation do not extend to the Church Entities.
b. Any doubts should be resolved against tribal jurisdiction because
of the threatened loss of the Church Entities’ constitutional rights.
That Doe Defendants are seeking to extend tribal jurisdiction far beyond of the bounds
set by the U.S. Supreme Court is highlighted by the relief they seek. Doe Defendants would
impose world-wide changes to church policy. These changes include the removal of church
leaders when any allegation of abuse is made, specifying to whom church leaders must report
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The church autonomy doctrine is a corollary of the Constitution's separation of church
and state–a recognition that churches have "autonomy in making decisions regarding their own
internal affairs." Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 655 (10th Cir.
2002). Prohibiting a church from speaking in opposition to legal measures inimical to its
interests would be an unmistakable instance of viewpoint discrimination in violation of free
speech, see Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995), and a
prior restraint on core political speech. See Org. for a Better Austin v. Keefe, 402 U.S. 415
(1971) (prior restraint); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346 (1995) (political
speech).
Even if jurisdiction in the Tribal Court were a close question—and it is not—Doe
Defendants’ quest to deprive the Church Entities of their constitutional rights should decide the
matter. Repeatedly, the Supreme Court has expressed concern that tribal authority over
nonmembers is unconstrained by constitutional protections. See Plains Commerce Bank , 554
U.S. at 337 (“The Bill of Rights does not apply to Indian tribes.”) (citation omitted); Duro v.
Reina, 495 U.S. 676, 693 (1990) (focusing on “consent and the protections of citizenship” is
proper because “[i]t is significant that the Bill of Rights does not apply to Indian tribal
governments.”). Indeed, Montana’s “presumption against tribal-court civil jurisdiction squares
with … an overriding concern that citizens who are not tribal members be ‘protected … from
unwarranted intrusions on their personal liberty.’” Nevada, 533 U.S. at 384 (Souter, J.,
concurring) (quotation omitted). Hence, unless this Court enjoins the Doe Defendants, the
Church Entities will be compelled to defend themselves in a tribal forum where their
constitutional rights are being openly attacked.
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3. Exhaustion In Tribal Court Is Not Required
As a general rule, “federal courts should abstain from hearing cases that challenge tribal
court jurisdiction until tribal court remedies, including tribal appellate review, are exhausted.”
Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1149 (10th Cir. 2011). But “[w]hen the
dispute involves non-Indian activity occurring outside the reservation, however, the policies
behind the tribal exhaustion rule are not so obviously served.” Texaco, Inc. v. Zah, 5 F.3d 1374,
1377 (10th
Cir. 1993). For this reason, federal courts have recognized exceptions to the
exhaustion requirement, including “where it is clear that the tribal court lacks jurisdiction and
that judicial proceedings would serve no purpose other than delay.” Thlopthlocco Tribal Town v.
Stidham, 762 F.3d 1226, 1238 (10th Cir. 2014) (citations omitted).
The conduct giving rise to Doe Defendants’ claims in Tribal Court did not occur on the
reservation. As such, the policies supporting the exhaustion rule are not served here. Seen for
what it is, Doe Defendants are attempting to invoke Tribal Court jurisdiction over nonmembers
for activities outside of the reservation. That goes directly against well-established case law that
cuts off Tribal Court jurisdiction at the reservation border. It is clear that the Tribal Court lacks
jurisdiction here, and, for that reason, exhaustion would serve no purpose other than to delay.
See, e.g., Crowe & Dunlevy¸640 F.3d at 1149; see also Strate, 520 U.S. at 459; Hornell Brewing
Co., 133 F.3d at 1093 (seeing “no need for further exhaustion” because it was “plain that the
Breweries’ conduct outside the Rosebud Sioux Reservation does not fall with the Tribe’s
inherent sovereign authority.”)
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B.
THE CHURCH ENTITIES WILL SUFFER IRREPARABLE HARM IF
FORCED TO LITIGATE IN A COURT WITH NO JURISDICTION
Because the Tribal Court lacks jurisdiction, the Church Entities will suffer irreparable
harm if forced to litigate there. A litigant demonstrates irreparable harm by showing “a
significant risk that he or she will experience harm that cannot be compensated after the fact by
monetary damages.” RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1210 (10th Cir. 2009).
Furthermore, “[a] plaintiff who can show a significant risk of irreparable harm has demonstrated
that the harm is not speculative” and will be deemed to have satisfied its burden. Id. Here, the
Church Entities clearly satisfy that burden.
First, as discussed above, because Doe Defendants’ requested relief would violate the
Church Entities’ First Amendment rights, and because tribal law is unconstrained by federal due
process protections, the Church Entities would be irreparably harmed by being subjected to tribal
court jurisdiction. See, infra, § III(A)(2)(b). “The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S.
347, 373-74 (1976) (citation omitted). Indeed, this Court has held that the “[v]iolation of core
constitutional rights is almost always an irreparable harm.” Utah Republican Party v. Herbert ,
133 F.Supp. 1337, 1346 (D. Utah 2015) (citing Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir.
2012) (“[W]hen an alleged constitutional right is involved, most courts hold that no further
showing of irreparable injury is necessary”). For this reason alone, the Church Entities have
demonstrated irreparable harm.
What is more, Courts have routinely concluded that the risk of being forced to spend
unnecessary time, money, and effort litigating in a court that does not have jurisdiction
constitutes irreparable harm. See, e.g., Crow v. Dunlevy, P.C. v Stidham, 609 F.Supp.2d 1211,
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1222 (N.D. Okla. 2009); see also UNC Res. Inc. v. Benally, 518 F. Supp. 1046, 1053 (D. Ariz.,
1981) (granting motion for preliminary injunction given plaintiff’s argument that tribal court
lacked jurisdiction); Kerr-McGee Corp. v. Farley, 88 F.Supp.2d 1219 (D.N.M. 2000)("The Court
finds that Kerr-McGee will suffer irreparable damage if Tribal Claimants are not enjoined from
proceeding in Navajo Court, as demonstrated by the expense and time involved in litigating this
case in tribal court."); Seneca-Cayuga Tribe Of Oklahoma. State of Oklahoma, 874 F.2d
709(10th Cir. 1989) ("The Tribes would also be forced to expend time and effort on litigation in
a court that does not have jurisdiction over them...."); Chiwewe v. The Burlington Northern and
Santa Fe Railway Co., 2002 WL 31924768 (D.N.M.)(same). As shown above, the Tribal Court
lacks jurisdiction in this matter and, therefore, the Church Entities’ would suffer irreparable harm
if compelled to litigate in that forum.
C.
THE BALANCE OF HARMS SUPPORTS ENJOINING THE
PROCEEDINGS IN TRIBAL COURT
Doe Defendants will not suffer unfair prejudice if proceedings in Tribal Court are
enjoined. They can file their suit in Utah courts, the proper forum, and seek relief there. Given
the infancy of this case, there will be no significant delay associated with a change in forum.
In contrast, the Church Entities would be irreparably harmed by having to litigate in a
forum where federal law does not authorize tribal jurisdiction over non-Indians and where they
would be subject to the loss of their most basic constitutional rights. See infra §III(B).
D.
THE PUBLIC INTEREST WILL NOT BE HARMED BY ENJOINING
THE TRIBAL COURT PROCEEDING
There is usually little public interest in a tort dispute between private parties. However,
where, as here, the constitutional rights of one of party are threatened, the public interest weighs
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heavily in favor of protecting those rights. See Nevada, 533 U.S. at 384 (Souter, J., concurring)
(expressing an overriding concern that citizens who are not tribal members be ‘protected … from
unwarranted intrusions on their personal liberty.’”)
There is also a significant public interest in preventing a tribal court from exercising
jurisdiction over nonmembers where it has none. See Ford Motor Company v. Todocheene, 258
F.Supp.2d 1038, 1057 (D. Ariz. 2002). Courts have routinely held that the public interest is
served by preventing tribal courts from proceeding in cases where they lack jurisdiction. See, e.g.
UNC Resources Inc. v. Bennalfy, 514 F. Supp. 358 (D.N.M. 1981) ("Nor will the public interest
be harmed by an injunction preventing the defendants from participating in an unlawful exercise
of tribal power."); Chiwewe v. The Burlington Northern and Santa Fe Railway Co., 2002 WL
31924768 (D.N.M.)(same); Kerr-McGee Corporation v. Farley, 88 F.Supp.2d 1219 (D.N.M.
2000).
IV.
CONCLUSION
The Church Entities’ request for a temporary injunction satisfies all four elements
required for relief. They will prevail on the merits because tribal court jurisdiction is
unquestionably lacking. They face irreparable harm if forced to proceed with the defense of the
suit in a forum with no jurisdiction. In comparison, there is no unfair prejudice to Doe
Defendants, who may pursue their claims in Utah courts. Finally, the public interest would be
served by appropriately limiting the jurisdiction of the Tribal Court.
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Therefore, the Church Entities request that the Court grant the present motion and enjoin
any further proceedings in the Tribal Court
DATED: June 3, 2016.
STOEL RIVES LLP
/s/ David J. Jordan
David J. Jordan
David J. Williams
Attorneys for Plaintiffs
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EXHIBIT B
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William
R. Keeler
Kpplen & Kpelpn,
LLP
108 E. Artec Avenue
Gallup,
NM 87301
Phone:
(505)722-5608
Attorneyfor Plaintiff
NAVAJO
NATION
DISTRICT
COURT
DISTRICT
OF
WINDOW
ROCK.
ARIZONA
BN,
vs.
THE
CORPORATION
OF
THE PRESIDENT
OF
THE
CHURCH
OF JESUS CHRIST
OF
LATTER-DAY
SAINTS, a
Utah corporation;
LDS
FAMILY
SERVICES,
a
Utah corporation,
Plaintifl
case No.
nB_C-r'
-1
,l
_
|
Lf
COMPLAINT
FOR
PERSONAL
INruRY
Defendants.
Plaintiff,
through counsel, and
based upon
information and
belief
available at the time of
the filing
of this
Complaint,
brings
this
Complaint
under
Navajo
Law
for damages
resulting from
injuries
suffered by Plaintiff
as a
result
of Defendants' negligence
and
other
misconduct
described
herein.
I. JURISDJCTIqN
AND
VENUE
l.
At the
time
of
the
events
described in this Complaint, all
parties
resided
on
and/or
maintained continuous and systematic
contacts
with
the
Navajo
Nation.
2.
This
Court
has civil,
personal
and
subject-matter
jurisdiction
over the
Defendants
based
upon
the consensual
relationships between
the Defendants and the
Navajo
Nation.
3. This
Court has civil,
personal
and subject-matter
jurisdiction
over
the
Defendants
because
the conduct
of
the Defendants described
herein
threatens
the health,
welfare and cultural
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well-being
of the Navajo Nation.
II. PARTIES
4.
Plaintiff
BN
is
an
adult
female
who is
an
enrolled
member
of
the
Navajo Nation.
Plaintiff
was a minor at
the time
of the
sexual
abuse alleged
herein. During
the
relevant
time
period,
Plaintiff
was a resident
of the Navajo Nation where she
was taken
from
the
Navajo Nation
by
the Defendants
and
placed
with
foster families
in
Utah.
There,
Plaintiff
was
sexually
abused.
The
name
used by Plaintiff in this
Complaint is
not
the
real
name of Plaintiff, but
is
a
fictitious
name used
to
protect
the
privacy
of
Plaintiff, a
victim
of
childhood sexual
abuse.
5. Defendant
Corporation of the President of the Church of
Jesus
Christ of
Latter-day
Saints,
is
a corporation
duly
organized and
operating
pursuant
to
the laws
of Utah
(hereinafter
COP ).
COP
operates church meetinghouses
within
the Navajo Nation
and in tens of thousands
of
other locations
worldwide and
is
one
of
the corporate entities through
which
the
LDS
Church
conducts its affairs.
At all relevant
times. the COP
conducted continuous and systemic
activities
within the
Navajo Nation.
6. Defendant
LDS Family
Services is
a
nonprofit Utah
corporation
owned
and
operated
by the
COP.
At
all
relevant times,
LDS
Family
Services was acting
as
the
agent
of
the
COP.
Upon information
and
belief,
LDS Family
Services
formerly
operated
under the
name LDS
Social Services. From approximately
1947
to the mid 1990's, LDS Family Services operated
a
program
known as the Indian
Placement
Program or
the
Lamanite
Placement Program
(hereinafter
the
LPP ).
At
all relevant times,
Plaintiff was
sexually
abused
while
she was
participating
in the LPP
and
while
she
was
in
the
care and
custody
of
the
Defendants.
At all
relevant
times,
LDS Family
Services,
in
association
with
the
other
Defendant, COP,
conducted
continuous and systemic activities within the Navajo Nation.
7. Defendants COP and
LDS Family Services
will
be
referred
to
collectively
throughout
the
complaint
as the
LDS
Defendants
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III.
RELEVANT
FACTS APPLICABLE TO
PLAINTIFF
8.
At all times
material
hereto,
Plaintiff was a
participant
in
the LPP described in this
Complaint.
Upon
information
and
belief, the LPP was developed and maintained
at
the behest of
and
for the
benefit
of
the
LDS
Defendants.
According
to
the
1968
version
of
the
Lamanite
Handbook
of
the Church
of Jesus Christ
of
Latter-day
Saints,
in
September
of
1946,
the acting
President of the
Church, George Albert
Smith,
appointed
Spencer
W. Kimball
to head the
General
Lamanite
Committee
with
the charge
to
see
that the
gospel
was carried to all
the children
of
Lehi
(which
includes
the Lamanites)
all
over the world. Kimball's
commitment
to
the
Native
Americans
(commonly
referred
to
as Lamanites
by
the Defendants)
is explained in a January 7,
2076 article
in Indian Country
Today:
Kimball's commitment
to the Native Americans stemmed from
the
Mormon
belief
that
America's
indigenous
people
actually fled from
Israel in the
year
600
B.C.
After
settling
in
an unspecified
location
in
the Americas,
the
people
split
up into
two
groups:
the
Nephites, a righteous and
civilized
people;
and the Lamanites,
an
idle,
savage
and bloodthirsty
people
who,
after
hardening
their
hearts, were
cursed
by God
with a
skin
of
blackness and
thus
became
loathsome.
Read
more at http:li'indiancountrytodat'meclianetv,ork.cont/20I6i0l
i}Tiassintilation-lool-
or-blessirtg-irt,side-mormon-indian-sludent-placement-rtroqrant-
162959
9. The
LDS
Church's
desire
to convert Native
American or
Lamanite children and
assimilate them into
their
culture reflects
teachings
in
the
Book
of Mormon,
a
book
of
canonized
scripture
unique
to the Mormon religion.
According
to this canonized
Mormon
scripture, because
the
Lamanites
had
hardened their hearts
against
the Lord,
they were
cursed
with a skin
of
blackness
to
distinguish them from the righteous Nephites.
And
he had caused
the cursing to
come upon
them,
yea, even
a
sore
cursing,
because
of
their
iniquity.
For behold, they
had hardened
their
hearts
against
him, that they
had become
like
unto a flint; wherefore,
as
they were
white, and exceedingly
fair
and
delightsome, that they might not be enticing unto
my
people
the
Lord
God did
cause a
skin of blackness
to
come
upon
them.
(2
Nephi
5:2I,
Book of
Mormon).
10. At
the
time Plaintiff was taken
from
the Navajo
Nation
and
placed
into
Mormon
foster
homes,
the
LDS
Church taught that the Native
Americans,
including
the
Plaintiff, were
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Lamanites
as described
in
the
Book of
Mormon and summarized above. The leaders of the LDS
Church
felt
driven
to
instruct the
Lamanites
within the Navajo Nation
concerning
their
true
ancestry and
convert
them
back
to the
one true faith. Therefore, converting
the
Navajo
Nation
children and
immersing them
into white Mormon
culture was not
only
rooted in
Mormon
scripture
but
believed to be divinely
directed as
the
way
to
redeem
and
restore
the Lamanites
to
their
prophetic
destiny.
An
example
of
this belief is
a
quote
by
long-time Mormon
Prophet,
Spencer
W.
Kimball, who
suggested that Latter-day
Saint
Native
Americans
were
gradually
turning lighter,
essentially
breaking
the dark
skin
curse:
I
saw
a
striking
contrast in the
progress
of
the Indian
people
today... The day
of
the
Lamanites
is
nigh.
For
years
they
have
been
growing
delightsome, and
they
are
now
becoming
white and delightsome,
as
they were
promised.
In
this
picture
of
the
twenty Lamanite
missionaries,
fifteen of the twenty were as light as
Anglos,
flve were
darker
but equally
delightsorne.
The
children in
the
home
placement
progran
in
Utah are
often lighter
than their
brothers
and
sisters in the
hogans
on
the reservation.
At
one meeting
a
father and rnother and
their
sixteen-year-old
daughter
we
represent,
the little
member
girl-sixteen-sitting
between
the dark
father
and rnother,
and it was
evident
she
was several
shades
lighter than her
parents----on
the
same
reservation,
in the
same hogan, subject
to
the
same sun
and
wind
and
weather
....
These
young
members
of
the
Church are
changing to
wlriteness
and
to delightsorneness.
Conference
Report, October
1960;
Improvement
Era,
December
1
960,
pp.
922-23.
1i.
Upon
information
and
belief, in
order
to
qualifu
for
the LPP,
Navajo
Children had
to
be at least
eight
years
old and baptized
members
of
the
Mormon
Church in
good
standing.
Plaintiff
was
baptized a member
of
the
Mormon
Church
while
residing on
the Navajo Nation.
The
decision
to
remove Plaintiff
from
her
family was made
by
case
workers and/or employees
and/or
agents
of the LDS Defendants
while
on the Navajo
Nation.
Plaintiff was then transported
off
the
Navajo
Nation
and
moved
to Utah
and placed
with
Mormon
foster
families.
Upon information
and
belief, the
foster
families
received
stipends and/or subsidies
(and
were
promised
unspecified
spiritual blessings)
from
the
LDS
Defendants for
each
Native
American child
placed
in the home.
12.
Upon
information
and belief
and
at
all relevant times, the Mormon foster families
whose
homes Plaintiffs were
placed,
were the employees
and/or
agents
of the
LDS
nto
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Defendants.
At
all relevant
times, the LDS
Defendants had care and custody of the
Plaintiff during
Plaintiff
s
involvement
with
the LPP and for the
duration of their
placement
into Mormon foster
family homes
in
Utah.
All acts
of sexual abuse alleged herein took
place
during
the
LPP
while
Plaintiff
was in the custody
and
control
of the Defendants.
Plaintiff
BN
13.
In
August
of
1964,
LDS Defendants
removed
BN from her
home,
within the
boundaries
of the Navajo Nation,
and
placed
her
with a
foster
family in
Utah of
what is believed
to be
BN's
5th
grade year.
Following
completion
of
this
school
year,
BN returned
to
her home on
the
Navajo
Nation.
14.
In
approximately
August
of 1965,
for the
start
of what
is
believed
to
be
BN's
sixth
grade
year
in
school,
BN
was again
removed from her
home on
the Navajo Nation and
placed
with
the C. family
in River
Heights, Utah.
During
BN's
placement
in
the C. home,
BN
was sexually
molested
on
multiple
occasions
(to
include sexual
penetration)
by her foster father. This
sexual
abuse started
at the end
of
September 1965 and continued
until
the end of the school
year (May
of
1966).
After
school
ended,
BN returned
home to the Navajo Nation.
15.
In August
of
1966,
BN
was
again
removed
from
her
home
and
transported
to Utah.
Prior to
being
placed
with
her
new
family
in Utah,
BN,
upon
arriving
in Utah, underwent
a
medical
examination
(with
no
one
else
present)
by someone whom she believes
was
a
physician.
This
physician
or health care
provider
examined
BN in a
location, believed
to
be a
cultural
hall,
in a
Mormon
Chapel
or
Stake
Center, that was
arranged
in
a
series of
rooms
by what
BN
recalls as
partitions .
This
health care
provider
sexually
molested and raped BN during this examination.
He
felt
BN's
breasts,
checked
her vaginal
area
without
any gloves
on
and
made a
comment that
she
didn't
have a hymen.
This term was unfamiliar to
BN
at the time. He then went on to ask her
if she had already
given
birth or
was sexually
active. BN
was scared
and so she
didn't tell
this
health
care
provider
about
being repeatedly
raped
by her
foster father during
the
previous
school
year.
This
health care
provider
continued
with his so-called
exam by
continuing to
violate
her
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with
his
finger
while asking her if
it
felt
good
and telling
her
that
he could tell
she
had
sex
lots
of
times
before.
This healthcare
provider
then
scooted
BN further
down on the exam
table.
BN had her
eyes closed
waiting
for it
to
end, when to her horror
this
so-called
medical
exam
escalated into
a full-blown rape situation. This health care
provider
then
penetrated
BN
with
his
penis.
He
quickly
ejaculated
and
then
proceeded
to
clean
BN.
BN
was
now in tears as
this health
care
provider
told her
she
had
passed
the exam
,
that
she
would be ok
and that
she was free to
go.
16.
During her
12th
grade year,
BN
was
placed
in the W. home
in
Orem, Utah.
BN was
raped
on several occasions by her much
larger and
stronger
foster brother.
After the
first
time
she
was
raped,
BN
left
her
room
and
told
both
of
her
foster
parents
what
had
happened. Her
foster
parents
said
it
wouldn't
happen
again
and
proceeded
to
partially
blame
her
for
the rape saying that
she
turned
guys
on because she
had big tits .
Unfortunately,
it
did
happen
again,
on
multiple
occasions.
BN
remembers
screaming and crying
while
she
was being
raped.
She
is
sure
her
foster
parents
heard
her but did
nothing.
She
told her foster
parents
that she
continued
to be raped,
still
nothing was done to
protect
her.
17.
Additionally, BN
disclosed the
sexual
abuse she
suffered
in
12th
grade
to
agents
of
LDS Defendants, including but
not limited
to
her LPP
case
worker.
Again,
nothing
was done and
she
continued to
be
raped
by her foster brother.
18. BN recalls another incident
when
her foster
brother
raped
her
on
the
Provo Lake
beach.
She escaped
and
ran back home sobbing
to her foster
dad
who told
her that
anything
that
happens stays in this house.
19. As
a
direct
result
of the wrongful
conduct
alleged
herein, BN
has suffered,
and
continues
to
suffer
great
pain
of mind
and
body,
shock,
emotional
distress,
physical
manifestations
of
emotional
distress,
embarrassment,
loss of
self-esteem,
disgrace,
humiliation,
and
loss
of
enjoyment of
life;
has
suffered
and continues
to
suffer
spiritually;
was
prevented and
will continue
to
be
prevented
from
performing Plaintiff
s
daily
activities
and obtaining
the
full enjoyment
of
life;
has sustained
and continues
to sustain
loss of
earnings
and
earning
capacity;
and/or
has
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incurred
and
continues to incur expenses
for medical
and
psychological
treatment, therapy,
and
counselins.
IV. FIRST
CAUSE
OF
ACTION
CHILDHOOD
SEXIJAL ABUSE
20. Plaintiffs
incorporate
all
paragraphs
of
this
Complaint
as
if
fully set
forth
herein.
21.
Between
approximately
1965 and
1972, Plaintiff, on multiple occasions,
was
sexually abused
while
she
participated
in
the LPP under the care and custody of the LDS
Defendants.
22.
The sexual abuse was either
committed by individuals who
at
all
times
were
in
the
course and scope
of
acting
as
seryants andlor
agents
of
the
LDS
Defendants,
or was
committed by
others who
were known
to these servants and/or agents
or
under the control and supervision
of
these servants and/or
agents, making
the
LDS Defendants vicariously liable for
the
injuries
caused
by
Plaintiff
s abusers
under the doctrine
of respondeat superior.
23.
Upon
information
and
beliei
prior
to
or during the
abuse
alleged
above,
the LDS
Defendants
knew,
had reason
to
know,
or were otherwise on notice of the unlawful sexual conduct
by
certain
foster
family
members under
the
LPP.
Defendants failed
to
take reasonable
steps
and
failed to
implement
reasonable safeguards to
avoid
acts
of
unlawful sexual conduct
in
the future
by
these certain
foster
family
members
and
health care
providers,
including,
but
not
limited
to,
removing Plaintiff
from the foster
homes
where
sexual
abuse
was
occurring
and/or
placing
Plaintiff in foster
homes where they knew
or should
have known that
Plaintiff
was at
an
increased
risk of being
sexual
abused.
Furthermore,
at no
time
during the
periods
of
time
alleged
did
Defendants
have in
place
a system
or
procedure
to supervise
and/or monitor employees,
volunteers, representatives,
or
agents to ensure that they did not molest or abuse
minors
or
allow
such
to occur.
24.
Upon information
and
belief, after
learning
that BN was
being
sexually
abused
during her
participation
in the LPP, the LDS Defendants,
by
and
through
their
agents,
ratified
the
wrongful
conduct
described
herein
by failing to
report
it
to
law enforcement
authorities,
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Defendants
vicariously
liable for the
injuries
caused under the doctrine of
respondeat superior.
30.
Upon
information and
belief,
after learning
of the
health
care
providers
and LPP
foster families'
wrongful
conduct, the LDS Defendants,
by
and through
their
agents,
ratified the
wrongful
conduct described herein by failing to report
it
to
law
enforcement
authorities,
prospective
LDS members, current
LDS
members, their families,
victims, and the
public.
31.
Upon
information and
belief,
prior
to
or during the
abuse alleged above,
the
LDS
Defendants
knew,
had
reason
to
know,
or
were
otherwise on
notice of
the
unlawful
sexual conduct
by LPP foster
family
members. The
LDS Defendants
failed to take
reasonable steps and
failed
to
implement reasonable
safeguards to avoid acts
of
unlawful
sexual conduct
in the future by the LPP
foster
families, including, but not limited to,
removing
Plaintiff
from
LPP foster
family
homes
where
sexual
abuse was
occurring. Furthermore, at
no time during the
periods
of
time
alleged
herein
did the
LDS
Defendants have
in
place
a
system
or
procedure
to
supervise
and/or monitor
employees,
volunteers,
representatives,
or
agents to
ensure
that they did not molest or abuse minors
in
Defendants'
care,
including
the Plaintiff.
32.
As
a
result
of
the above-described conduct,
Plaintiff
has suffered,
and continues to
suffer,
great
pain
of
mind
and
body,
shock, emotional
distress,
physical
manifestations
of
emotional
distress, embarrassment,
loss
of self-esteem,
disgrace,
humiliation,
and loss
of
enjoyment of life; have
suffered
and continue to suffer spiritually;
was
prevented
and
will continue
to
be
prevented
from
performing
Plaintiff
s
daily
activities
and obtaining the full
enjoyment
of
life; has sustained
and will continue
to
sustain
loss
of
earnings and
eaming
capacity;
and/or has
incurred
and
will continue to incur
expenses
for medical
and
psychological
treatment, therapy,
and
counselins.
VI. THIRD CAUSE OF
ACTION
-
NEGLIGENCE
33. Plaintiff
incorporates all
paragraphs
of this Complaint
as if
fully set
forth
herein.
34. The LDS Defendants
had a
duty
to
protect
the minor
Plaintiff
when
Plaintiff
was
entrusted
to their
care
by
Plaintiff
s
parents.
Plaintiff s
care, welfare,
and/or
physical custody
was
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temporarily
entrusted
to
the LDS Defendants. The LDS
Defendants
voluntarily
accepted the
entrusted
care
of Plaintiff. As
such,
Defendants owed Plaintiff,
a
minor
child,
a
special
duty
of
care, in addition
to a duty
of
ordinary
care, and
owed
Plaintiff
the higher duty of
care that adults
dealing
with
children
owe to
protect
them from
harm.
35.
The
LDS Defendants, by and through
their agents, servants
and employees,
knew
or
reasonably
should have
known of
the
dangerous
and exploitive
propensities
of
some
of the
health care
providers
and LPP foster
family members.
It was foreseeable
that
if
Defendants
did
not
adequately exercise
or
provide
the duty
of
care owed
to
children
in
their care, including but
not
limited
to
Plaintiff,
the children
entrusted
to Defendants'
care
would be vulnerable
to
sexual
abuse
by
certain LPP foster
family
members.
36. The LDS Defendants breached their duty of
care
to
the
minor
Plaintiff by
allowing
certain LPP foster
family
members and health care
providers
to come
into contact with the minor
Plaintiff
without
supervision; by
failing
to
adequately
supervise
certain
LPP foster
family members
and health care
providers
whom they
permitted
and enabled
to
have
access
to
Plaintiff;
by failing
to
investigate
or
otherwise confirm or
deny
such
facts about certain
LPP foster
family members
or
health
care
providers; by
failing
to
tell
or concealing
from
Plaintifl
Plaintiff
s
parents,
guardians,
or
law
enforcement
officials
that
certain
people
described
above were or
may have been sexually
abusing
minors;
by failing to tell
or concealing
from
Plaintiffs
parents,
guardians,
or law
enforcement officials
that
Plaintiff
was
or
may have
been
sexually
abused after
Defendants
knew
or had reason to know about
the sexual
abuse,
thereby continuing
to endanger Plaintiff.
37
.
The negligent
acts of
removing
Plaintiff
from the Navajo
Nation and
the decision
to
place
her
in dangerous
homes or
situations occurred in
part
on the Navajo
Nation.
Likewise,
the
failure to
disclose to
Plaintiff s
parents,
to
police
or to child
protective services, the sexual
abuse
that
was occurring within the LPP also occurred
within the Navajo
Nation.
38. As
a
result of the above-described
conduct,
Plaintiff has
suffered,
and
continues to
suffer
great pain
of mind and body, shock,
emotional distress,
physical
manifestations
of emotional
distress, embarrassment,
loss
of
self-esteem,
disgrace,
humiliation,
and
loss
of
enjoyment
of
life;
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has
suffered
and
continues
to
suffer spiritually;
was
prevented and
will continue
to
be
prevented
from
performing
Plaintiff s daily activities and obtaining
the
full
enjoyment
of
life;
has
sustained
and will continue
to sustain loss
of
earnings
and eaming
capacity;
andlor has
incurred
and
will
continue to incur expenses for medical and
psychological treatment,
therapy,
and
counseling.
VII.
FOURTH
CAUSE
OF
ACTION
NEGLIGENT SUPERVISION/FAILURE
TO WARN
39. Plaintiff
incorporates
all
paragraphs
of
this Complaint
as
if fully set
forth
herein.
40.
The LDS Defendants had a duty
to
provide
reasonable
supervision
of LPP
foster
families;
to use reasonable
care
in investigating
potential LPP foster
families;
and
to
provide
adequate
warning to
the
Plaintiff,
the
Plaintiff
s
family
and
minor
LPP
participants
of
certain
LPP
foster
family
members'
dangerous
propensities
and
unfitness.
4I.
The LDS Defendants by and through
their
agents, servants
and/or employees,
knew
or
reasonably
should
have
known
of
the
dangerous
and exploitive
propensities of certain
health
care
providers
and
certain LPP
foster family members
and/or that these
certain
persons
were
unfit
agents.
Despite
such knowledge,
the
LDS
Defendants
negligently
failed to
supervise
the
LPP
foster
families
and
health
care
providers whom
the
LDS
Defendants placed in
the
position
of
trust
and
authority
as
religious
instructors, surrogate
parents,
spiritual
mentors, emotional
mentors,
and/or other authority figures,
where
they were
able
to commit
(or
allow
others
to commit)
the
wrongful acts
against the
Plaintiff.
The
LDS
Defendants
further
failed
to take reasonable
measures
to
prevent
future
sexual abuse
while Plaintiff was
in the LPP.
42.
The negligent acts of
repeatedly
failing
to warn Plaintiff
and
her
family,
failing to
report ongoing
sexual abuse
to
police, placing
Plaintiff in
dangerous
homes
etc., occurred
within
the Navajo Nation,
43.
As
a
result
of
the above-described
conduct,
Plaintiff
has suffered,
and continues
to
suffer
great pain
of mind and body, shock,
emotional
distress,
physical manifestations
of emotional
distress,
embarrassment, loss
of self-esteem,
disgrace,
humiliation,
and loss
of
enjoyment
of
life;
has suffered and
continues to
suffer spiritually;
was
prevented
and
will continue
to be
prevented
I
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from
performing
Plaintiff
s daily activities
and obtaining
the full enjoyment of
life; has sustained
and will continue
to sustain loss
of
earnings
and earning
capacity; and/or has
incurred
and will
continue
to
incur expenses
for medical and
psychological
treatment,
therapy,
and
counseling.
VIII.
FIFTH
CAUSE OF
ACTION
INTENTIONAL
INFLICTION OF EMOTIONAL
DISTRESS
44.
Plaintiff
incorporates
all
paragraphs
of
this Complaint
as
if fully
set
forth herein.
45.
The
LDS
Defendants'
conduct was extreme and
outraseous
and
was intentional or
done recklessly.
46.
As
a result
of
Defendants' conduct,
Plaintiff
has
experienced
and continues to
experience
severe
emotional
distress.
47
.
As
a
result
of
the above-described conduct,
Plaintiff has
suffered,
and continues
to
suffer
great
pain
of
mind
and body, shock, emotional distress,
physical
manifestations of
emotional
distress,
embarrassment,
loss of self-esteem, disgrace, humiliation, and
loss of enjoyment of
life;
has
suffered and continues
to
suffer spiritually; was
prevented
and will continue
to be
prevented
from
performing
Plaintiff
s daily
activities and obtaining
the full enjoyment of
life; has sustained
and
will
continue
to
sustain loss
of
earnings and earning
capacity;
and/or has
incurred
and
will
continue
to incur
expenses
for
medical
and
psychological
treatment, therapy,
and
counseling.
IX.
SIXTH
CAUSE
OT
ICTION.
EAUITABL
48.
Plaintiff
incorporates all
paragraphs
of this Complaint
as
if fully
set
forth herein.
49.
Plaintiff
also
prays
for
equitable
relief from this
Court,
for
non-monetary
redress
and the
protection
of Plaintiff and
other similarly
situated
members of
the
public
and children, as
follows:
POLrcY
CHANGES
50. That
the
LDS
Defendants
change
their current
corporate
policies
regarding
reporting
of
suspected
child
sexual
abuse.
Upon information
and
belief,
the current
policy
as
set
forth in
2010
Handbook
2:
Administering
the
Church, Section
I3.6.18,
which
provides that
[i]f
a
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leader becomes
aware of
physical,
sexual or emotional
abuse
of someone
during a Church
activity,
he or she should contact
the bishop immediately.
51.
Instructions
for
bishops
are
provided
rn Handbook
I:17.3.2,
which
provides
in
pertinent
part,
[i]n
the United States and
Canada,
the
Church
has established
a
help line to assist
stake
presidents
and
bishops in cases of abuse ... When
calling
the help
line,
leaders
will be
able
to consult with
professional
counselors and legal specialists
who
can help answer
questions
and
formulate steps to take
...
Leaders can obtain
information
about
local
reporting
requirements
through the help line. Where
reporting is required by law,
the leader encourages
the member to
secure
qualified
legal
advice.
To avoid implicating the Church
in
legal
matters
to which
it
is not
a
party, Church
leaders
should
avoid testifying
in civil
or
criminal
cases
or
other
proceedings
involving
abuse. Handbook
l,
State
Presidents
and
Bishops
2010,
Section
17.3.2.
52. Despite
the
specific instructions to its high level
leaders in
Handbook
1
(which
is
not available
to the
public
at large)
contradictory instructions
are found on the Church's official
news
website.
The
online
article claims
that
[t]he
Church
has a zero-tolerance
policy
when
it
comes to abuse.
... We
cooperate
with
law enforcement
to report and investigate
abuse.
How
the
Church
Approaches
Abuse,
NEwsRooM (accessed
on May lJ,
2016)
http://www.mormonnewsroom.orglafiiclelhow-mornons-approach-abuse.
This
public
statement
contradicts the internal
policies
set forth
in
the
Church's
Handbook
1,
and misleads
members
of
the
Church
about what will
happen after they report sexual
abuse to their
Bishop
or Stake
President
Indeed,
this
language may lead members
to
believe that their Bishop or
Stake President
will report
sexual
abuse
to the
police.
Handbook
1, does not in fact, ever
instruct
these leaders
to report
abuse
to
police.
53.
Specifically,
the
Church's
public
claim that
it
cooperate[s]
with
law enforcement
to
report and
investigate abuse is
contradictedby the instructions
in Handbook
L'17.3.2, which
advises the Church leaders, [t]o avoid implicating
the Church in
legal matters
to which
it is not
a
palty,
fby
not]
testifying in civil
or criminal
cases
or other
proceedings involving
abuse. Id.
54.
Because the
current
policies
do not adequately
protect
children
but
rather aim
to
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protect
the
LDS
Defendants,
Plaintiff
requests
that
these
policies
be
changed
and include
the
followine:
a.
Where
a
charge
of
sexual abuse
of
a
child
has been made against any
agent,
leader,
or
member
of
the
Church, he
or
she shall
be
immediately removed
from exposure
to children
and
all
appropriate
safeguards shall be
made
to
keep
him or
her away
from
children
pending
investigation.
b.
Whenever any
leader or member
in the Church
has reasonable
suspicion of
child sexual abuse, whether the abuse happened
during
a
Church activity or
not, this
leader
or
member
shall
report the abuse first to the
police
and
child
protective
services.
c.
Every
Church
leader shall be
a
mandatory
reporter
of
child
sexual
abuse,
regardless
of
whether mandatory reporting
is required
by
law.
d.
That the
LDS
defendants must
bring
its
publicized
policies on
abuse
into
conformity with
its Handbool
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X.
SEVENTH CAUSE OF ACTION
-
COMMON
LAW
NUISANCE
AND REQUEST FOR INJUNCTIVE
RELIEF
55.
Plaintiff
incorporates all
paragraphs
of this Complaint
as
if
fully set
forth
herein.
56.
As
reflected
in
its
corporate
policies,
the
LDS
Defendants continue
to engage
in
efforts
to:
1) conceal
from
the
general
public,
from
police
and
applicable child
protective
services,
instances of child
sexual
abuse and,
by
extension, the
identity
of child molesters,
by failing
to
instruct
its
members
and
leaders to
report child
sex
abuse to appropriate
criminal
and civil
authorities; 2)
protect
its image and not children
by
instructing
its members
and
lower
level leaders
to report child
sexual
abuse to Bishops and/or
Stake
Presidents;
then instruct
these high level
leaders to
call
a
Church
help
line
to
consult
with
legal
and
other
professionals
instead of calling
the
police.
In
fact, the current
policy
specifically
commands
...
To
avoid implicating
the
Church
in legal matters to which it is not aparty,
Church
leaders should avoid
testifying in
civil
or
criminal
cases
or
other
proceedings
involving abuse.
Handbook I,
State
Presidents
and Bishops
2010,
Section
17.3.2.
57.
The conduct
and
concealment
by
the
LDS Defendants
has
knowingly and/or
recklessly created
or maintained
a
condition which
unreasonably endangers
the safety
and
health
of
a considerable number
of
persons,
including,
but
not
limited
to, children and residents of
the
Navajo Nation who
live
where Defendants
agents live.
Defendants'
failure to have
proper policies
and
procedures
that direct its members to
report
child sexual
abuse
to
proper
authorities
has
knowingly
and/or recklessly
endangered
the safety
and health of
people
by
allowing
child
molesters to avoid
prosecution
and remain living freely in unsuspected
communities. These
child
molesters, known to agents of
the
Defendants,
but
not to the
public,
pose
a threat
of
additional
abuse
to
children.
58.
The unreasonable,
knowing
and
reckless conduct
by
Defendants
has
specifically
been
injurious
to Plaintiff s health
in
that
Plaintiff
has experienced
mental and emotional
distress
as
a
result
of Defendants'
negligence and/or concealment;
that
Plaintiff
has
not
been
able
to
help
other
children from being molested because
of Defendants'
ongoing
corporate
policies
that
protect
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Defendants
and
child
molesters
but
expose
children.
59.
The continuing
public
nuisance
created by
Defendants
was,
and
continues
to be,
the
proximate
cause of damages to
the
general
public
within
the Navajo
Nation and of Plaintiff s
injuries and
damages as alleged.
60.
In
doing the aforementioned
acts,
the
LDS
Defendants
have acted
unreasonably by
knowingly
and/or
recklessly
creating
or
maintaining
a
condition
which endangers
the safety or
health
of a considerable
number of
persons
within the Navajo Nation,
and
with
conscious
disregard
for Plaintiff
s rights.
61.
As
a result
of
the above-described conduct.
Plaintiff
has suffered the
iniuries and
damases
described
above.
XI.
EIGHTH
CAUSE
OF ACTION-NAVAJO
COMMON
LAW
62.
Plaintiff
incorporates all
paragraphs
of this Complaint
as
if fully
set
forth herein.
63.
Dind bi beenahazanni
(Navajo
Common
Law)
consists
of
custom
and usages
of
the
Navajo
people.
64.
Navajo concept of
K'e
helps frame the Navajo
perception
of moral
right and
of
due
process
rights.
65.
A basic Navajo Common Law is
that
one
who
is
found
responsible
for inflicting
harm on another
person
must
pay
the
victim
for the harm to restore
harmony.
66.
Plaintiff BN, as
outlined
above,
suffered
harm
at
the
hands
of
the Defendants under
Navajo Common
Law
and must be made whole
by
the Defendants
in
order
to restore harmony in
her
life.
RELIEF REOUESTED,
RESTORATION
OF
NAVAJO
CULTURE,
AND
DAMAGES
67.
For approximately
50
years
the
LPP removed
thousands of
Navajo
children frorn
the Navajo Nation and frorn their
parents
and
other
family
members in an
attempt
to assimilate
thern
into
white
Monnon culture.
While this LPP
may have been
well-intentioned
by
Defendants
because
of
tlieir
own religious
and
cultural
reasons,
the social and
cultural
harm
to
the Navajo
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Nation
and its
people
must
be
addressed.
In
addition to
the social
injustice
and harm occasioned
by removing
thousands
of
children from
their
parents,
family
and home, the culture of the Navajo
Nation
has been
irreparably
hamred
by
the Defendants' continuous
and
systematic assimilation
effiorts.
68.
Therefore,
in
an efforl
to apologize for harms caused, and
to
show a
desire to restore
the
Navajo
culture that
this
program
sought to remove from its
participants,
the Defendants should
be ordered to:
a. Within thirty
(30)
days aflel
entry
of .Tudgment,
the
LDS
Defendants
send
Ietters
of
apology
to
Plaintiff. Letters
of
apology will
state
that Plaintiff was not at
fault
for
the
abuse
and
that Defendants
take
responsibility for
the
abuse.
b. That
the
LDS
Defendants write a
letter
of
apology
to
the Navajo Nation
Museum
in Window
Rock, Arizona,
for harms caused to the
people
and culture by
the
LPP.
c. That
the
LDS Delbridants establish
a task
force
that will
work
with
the
Navajo
Nation
Government in enhancing
and
restoring Navajo culture.
That this task
force design
and implement a
packet
to
be distributed
at
chapter
houses
explaining
where
individuals
can
seek
help
for
the
Navajo Tribe
to restore harmonv in their
lives.
ii.
That the
LDS
Defendants fund
this task force to implement
programs
for individuals
abused while
participants
in LLP that
will restore
harmony
in their lives
using both traditional Navajo healing methods and medical services;
if
needed.
WHEREFORE,
Plaintiff would
also
seek damages;
costs;
interest;
the
equitable
relief
described above
and
statutory/civil
penalties
according to law.
Plaintiff prays
for
such
other relief
as
the
court deems
appropriate and
just.
DATED
tnis)4av of
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Respectfully
KEELER
&
KEELER.
LLP
108 E. Aztec
Ave.
Gallup,
NM
87301
Phone:
(505)722-5608
Fax:
(505)
722-5614
CERTIFICATE
OF
GOOD
STANDING
Comes
now
the
undersigned
and
hereby
certifies to
the Court that
he
is
a
member
in
good
standing of the Navajo
Nation
Bar
Association.
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EXHIBIT C
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