Estimated read time: 3-4 minutes
This archived news story is available only for your personal, non-commercial use. Information in the story may be outdated or superseded by additional information. Reading or replaying the story in its archived form does not constitute a republication of the story.
SALT LAKE CITY — A U.S. District judge will decide whether four Navajos' allegations of sexual abuse in a now-defunct LDS Church foster placement program belongs in Navajo Nation court or federal court.
On Monday, Judge Robert Shelby also put a hold on their attorney's attempt to take a deposition from LDS Church President Thomas S. Monson until he has decided the jurisdictional question.
Shelby indicated issuing a subpoena for President Monson this early in the federal case was premature. He said it "seems to me to invite the court to question what is motivating the litigation in this case." Lawyers on both sides agreed not to file any other motions while Shelby deliberates.
Four Navajos, including two siblings, sued The Church of Jesus Christ of Latter-day Saints in three separate lawsuits in tribal court, alleging they were sexually abused during their time with foster families in Utah in the late 1970s and early 1980s.
The lawsuit seeks written apologies, unspecified damages, changes in church policy to ensure that sexual abuse is reported first to authorities and the creation of a task force to address any cultural or social harm to Navajos in the Indian Student Placement Program.
David Jordan, an attorney for the LDS Church, wants the case moved from Navajo Nation court in Window Rock, Arizona, to federal court in Salt Lake City. He argued in a court hearing that the alleged abuse did not take place on the Navajo reservation, and that tribal courts have no jurisdiction over conduct that does not occur on the reservation.
"It matters where things happen," Jordan told the judge.
Craig Vernon, a lawyer for the Navajo plaintiffs, agreed that the alleged abuse didn't take place on the reservation but was the result of placement decisions made on the reservation. He contends tribal court is the proper venue for the lawsuits to be argued.
"This is almost an attempt to take sovereignty away from a sovereign nation," he said.
Navajo Nation attorney Andrew Fitzgerald also argued that the case belongs in tribal court.
Shelby called the issues raised in the case an area of law that is still evolving. He said there are no analogous federal appellate or U.S. Supreme Court decisions to rely on.
"This case is unlike any that I've seen," the judge said. "As best as I can tell this area of the law is still evolving."
The judge, however, did say upfront that he couldn't see anyone making a strong argument showing the tribal court lacks jurisdiction over all the claims made in the lawsuit.
"Mr. Jordan, that's not good news for the church entities as long as I'm correct," Shelby said.
Jordan said he recognized he was swimming upstream but argued some of the claims in the lawsuit were made in bad faith and there is nothing wrong with the Indian placement program in and of itself.
"You've given us a lot to think about," Shelby said at the end of the three-hour hearing.
Tribal members who wished to participate in the program did so voluntarily with the agreement of their families, according to the church. LDS Social Services, now called LDS Family Services, had an office in Cedar City with regional responsibility for the program, including working with members of the Navajo Nation.
The Indian or Lamanite Student Placement Program started in 1947 and declined in the 1990s, ending with the graduation of the final students around 2000, according to the LDS Church.
