As we noted a few weeks ago, the Navajo Nation Supreme Court remanded a suit against the Gallup Diocese. The suit apparently alleges sexual abuse against Catholic priests and others against the plaintiff, a John Doe. The case does not have national importance yet, but it one day could.
Consider a class action suit brought in tribal court against any number of Catholic dioceses around the nation. We could have them here in Michigan in relation to the Holy Childhood school abuses, which are extensive and extensively documented.
Most outsiders would say why not sue in state or federal court, but a significant portion of the claimed abuses would have happened within reservation boundaries, making tribal court jurisdiction an issue. If the torts alleged occurred on church property, then the Montana case becomes the “pathmarking” doctrine. Since the church probably never consented to tribal jurisdiction, what remains is Montana 2 — the so-called health, welfare, political integrity, and economic security exception to the general rule that tribes cannot assert jurisdiction over nonmembers.
A class action successfully proving intergenerational trauma and multiple wrongful deaths could arguably meet the Montana 2 criteria, even in a federal circuit court.
So that raises the specter of Supreme Court review. Seven of the nine Justices, at least right now, are Catholic. Will they have to recuse themselves? Actually, they aren’t required to at all, but will they? I would guess no. It’s one thing to persuade the Court to affirm tribal jurisdiction, but another to persuade the Court to affirm jurisdiction over a Catholic diocese.
I always thought the commentary about the fact that there are so many Catholics on the Court was kind of silly, until I started thinking about this case.
Interesting, and strange.
Turtle Talk 