Navajo high court to hear priest abuse case
By Bill Donovan
Special to the Times
WINDOW ROCK, Oct. 7, 2010
The hearing involves the case of John Doe vs. the Diocese of Gallup and Father Charles Cichanowicz. The question at issue is whether the alleged victim waited too long to sue his abuser, and further whether a tribal court has jurisdiction over the case since it involves a non-Indian defendant.
Because of the nature of the complaint, the plaintiff's name is not revealed in court documents. A Navajo living in the Shiprock area, he claims that at the age of 14 - he's now 37 - he was sexually molested by Cichanowicz. He claims that on two occasions he was given alcohol by Cichanowicz, who then engaged in sexual acts with him.
Cichanowicz, who is no longer a priest, was a member of the Franciscan Friars of St. John the Baptist assigned to Shiprock.
The plaintiff decided to sue for damages in 2007 when he realized that the problems he had been having in life were rooted in the abuse he suffered.
On Jan. 19, Shiprock District Court Judge Genevieve Woody dismissed the case with prejudice - meaning it cannot be refiled - on grounds that the statute of limitations had run out.
Under tribal law, plaintiffs have two years to file a lawsuit based on personal injury. In this case, the plaintiff said he complied with the law because he first began realizing the effect of the abuse in 2005, two years before he filed the lawsuit.
Woody noted in her ruling that there were no witnesses to the plaintiff's claim that his realization occurred in 2005, and that the court had to rely solely on the plaintiff's own testimony.
In the appeal filed before the Navajo Supreme Court, the plaintiff's attorneys, William Keeler of Gallup and Patrick Noaker of St. Paul, Minn., claim that Woody failed to take into consideration tribal laws that provide for a delayed discovery of injury, which extends the time the case can be filed "until the plaintiff discovers or should have discovered that the abuse caused his injuries."
"The sexual abuse did not appear injurious to plaintiff at the time of the abuse," the appeal brief said. "In fact, at the time of the sexual abuse, the sexual act performed misled the plaintiff into believing the acts were pleasurable."
As a result, his lawyers argued, the alleged victim "went through life not understanding that he had even been injured by the sexual contact."
"Unfortunately, the trial court misunderstood this delayed discovery of sexual abuse injury," the Shiprock plaintiff stated. "In fact, the trial court placed much weight on facts that were not even in the record or in evidence."
The brief said that the Shiprock court "took the position that delayed discovery of injury is a novel legal position when just the opposite is the case."
The brief pointed out that this is a common experience by those who experience sexual abuse as children, and that Native children experience a greater incidence of sexual abuse than children in other racial groups.
Indeed, Larry Echo Hawk, assistant secretary of the Interior for Indian Affairs, has said that "some (studies) estimate that one out of every four girls and one out of every six boys is molested in Indian Country before the age of 18."
The response file by Cichanowicz's attorney, Brian Nichols of Albuquerque, said it would be unfair to his client to have to defend himself so long after the alleged abuse took place.
"He left the (Navajo) Nation over 20 years ago. He began a new career in Indiana soon thereafter. Documents are lost. Witnesses, both in the Franciscan orders and members of the nation, cannot be located," the brief stated.
The defendant and attorneys for his former religious order also challenge the jurisdiction of Navajo courts in this case because the alleged acts did not occur on Navajo land. The church where the abuse took place, while located in Shiprock, was not on trust land.
And even if it were, the defense argued, U.S. Supreme Court decisions limit tribal courts' authority over non-Indians.
The Franciscans, in their brief, state that the plaintiff "had knowledge of all of the facts needed to assert a cause of action by the time he reached 18 years old, approximately in 1988."
The order also questions whether the abuse had as much effect on the plaintiff's life as he claims it did. It pointed out that the plaintiff is not claiming that the abuse made him unable to carry on the everyday affairs of his life, but only that it caused him "to develop various psychological coping mechanisms which prevented (him) from taking legal action."
"This allegation falls short of establishing that, since 1988, the plaintiff has been under the disability of a mental disorder," the Franciscan brief states, and therefore doesn't justify a delay in filing the lawsuit due to mental incapacity.
The Shiprock man is not the only one to allege that Cichanowicz molested him. Similar allegations have been made by two other Navajos and by men in Indiana, where the priest was assigned after leaving Shiprock.