John Doe BF v. Diocese of Gallup

Navajo Tribal Court Suit against Gallup Diocese: Interesting, Even Strange Supreme Court Implications

Matthew L.M. Fletcher

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.

Navajo Nation Supreme Court Remands Sexual Abuse Claims against Catholic Church to Tribal District Court

Matthew L.M. Fletcher1 Comment

Here is the opinion in John Doe BF v. Diocese of Gallup.

From the court’s summary:

In this appeal of a district court’s order of dismissal in a personal injury action due to late filing, the Supreme Court has reversed the dismissal.  The case concerns allegations of child sex abuse on a Navajo teenager by a Catholic priest based on events that occurred almost twenty years ago. The district court did not find that the statutory conditions that would allow late filing were met.  However, the Supreme Court determined that the district court impermissibly required argument and witnesses at a status conference, and furthermore, applied the wrong standard.  The matter is remanded for further proceedings, including detailed findings on jurisdiction over the non-member defendants.

The court’s commentary on the complexity of adjudicating nonmember rights is worth reading, and demonstrates why the Navajo judicial system is a leader in tribal court adjudication:

The federal courts are a separate jurisdiction with very limited civil authority in Indian Country. Notwithstanding this limitation, federal court rulings profoundly affect tribal civil authority involving non-members in ways that have become “erratic and standardless.” Thomas P. Schlosser, Tribal Jurisdiction Over Non-Members, 37 Tulsa L. Rev. 573 (2001-2002). Some federal courts have even crossed jurisdictional lines and have begun treating our tribal courts and administrative agencies like subordinate courts rather than a separate sovereign adjudicative system. See, e.g., Amended Judgment in Red Mesa Unified School District et al v. Sara Yellowhair, et al, issued by the United States District Court for the District of Arizona, No. CY-09-807I-PCT-PGR (D. Ariz January 6, 2011) (voiding tribal court orders and enjoining tribal court action in a consolidated employment-related matter in which the protections of the Navajo Nation Preference in Employment Act were found to be inapplicable to all employees of Arizona state-funded schools located on the reservation). We are an Indian sovereign judicial  system, and as such there is no statutory mandate for our courts to apply the decisions of federal courts within our jurisdiction. However, we do so in the area of our civil jurisdiction over non-members out of the need to participate in, essentially, a political relationship. The jurisdictional barriers created by the federal courts, unilaterally imposed without consulting Congress or the tribes, must be practically resolved through engagement.

Our post on the Yellowhair case is here.