High court hears priest abuse case
By Bill Donovan
Special to the Times
WINDOW ROCK, June 30, 2011
The Navajo Nation Supreme Court took up the question of sexual abuse by a Catholic priest for the first time this week.
Attorneys for the plaintiff as well as attorneys for the Catholic Diocese of Gallup squared off in oral arguments held Monday at the Shiprock Chapter House.
The case, filed in Shiprock District Court in 2008, centers on Father Chuck Cichanowicz, pastor of Christ the King Parish in Shiprock in the 1980s.
The plaintiff, who is listed as John Doe to protect his identity, was 14 or 15 at the time of two incidents in which he claims Cichanowicz gave him alcohol and convinced him to have sexual contact.
The plaintiff alleges that the priest told him it was a normal activity. Not until adulthood did he begin to link problems in his life with that moment in his past. In 2007 he decided to sue Cichanowicz for sexual abuse.
In the following months, two other cases involving different plaintiffs were filed against Cichanowicz also claiming sexual abuse.
The first case was dismissed in Shiprock District Court on Jan. 19, 2010, on grounds that the plaintiff had waited too long to act. The statute of limitations had expired under tribal law, the court said.
Attorneys for the plaintiffs, who include William Keeler of Gallup, are arguing that the tribal statutes do take into consideration cases like this where the plaintiff did not realize the scope of the injury until years after the it occurred.
"No cause of action accrues for personal injury or wrongful death until the party having the right to sue has discovered the nature of the injury, the cause of the injury and the identity of the party whose action or inaction caused the injury," - 7 Navajo Code Section 602, part 4 states.
Attorneys for the plaintiff contend Cichanowicz misled their client into believing that the acts were pleasurable.
"As a result, plaintiff went through life not understanding that he had even been injured by the sexual conduct," they stated in their brief.
They listed a number of studies that showed the plaintiff's delayed reaction is not unusual in sexual abuse cases.
"Moreover, there is some support for the fact that sexual abuse of Native American children has an even more profound impact on them than in other populations," the plaintiff's brief stated.
In one study of sexual abuse at government boarding schools, the authors found "evidence that differences in Native American spiritual beliefs combined with being the most disadvantaged ethnic and racial group in America results in a greater cumulative negative impact upon the Native American child who is sexually abused.
"Consequently, Native Americans who were sexually abused as children are more likely to experience more psychological, physical and emotional problems and a more difficult time coping with the injuries related to the sexual abuse."
Another study was cited indicating that Native children experience a greater incidence of sexual abuse than children in other ethnic and socioeconomic groups.
Larry Echo Hawk, assistant secretary of the Interior and head of the BIA, once wrote an article citing an estimate that "one of every four girls and one of every six boys is molested in Indian Country before the age of 18."
The plaintiff believes the two-year statute of limitations on injury claims should start in 2007 when he first realized the extent of the injury caused by being molested.
The lower court saw that as a stretch and rejected it, but the plaintiff's attorneys told the Supreme Court that, to the contrary, it is a "common legal concept."
The plaintiff appealed the dismissal to the Supreme Court.
Cichanowicz, who is no longer a priest, was not present at the oral arguments on Monday. He was represented by counsel from the Modrall Sperling law firm in Albuquerque, who argued that the statute of limitations should have expired in the 1980s because the plaintiff "has always been aware of the alleged sexual contact and his alleged injury."
Cichanowicz's defense also raised the question of whether the Shiprock court had jurisdiction over him, a non-Native. The court ruled that it did, but Cichanowicz is disputing the point, in part because the plaintiff had never provided solid evidence that he's a member of the Navajo Nation and also because, in one of the amended complaints, it was alleged that the sexual contact took place on non-Indian fee land.
In a supporting brief filed by the Catholic Diocese of Gallup, its attorney, Lynn Isaacson of Gallup, said the Navajo Nation Council recognized that a statute of limitations period must be reasonable, and knowingly reduced the statute of limitations for injuries from sex to two years.
And some courts outside the reservation have rejected the theory of delayed discovery as being too subjective, the diocese argued.
Another party to the case is the Franciscan Order, a named defendant because Cichanowicz was a member at the time of the alleged abuse.
In their brief, the Franciscans point out that the plaintiff is not arguing that he repressed the memory and only became aware of it in 2007.
Instead, he is claiming that he did not understand the connection between the sexual abuse and resulting injuries until 2007. This does not fit within the scope of the law allowing a delay in the statute of limitations, lawyers for the order contend.
Monday's hearing lasted about two hours and the justices spent a great deal of time considering arguments over the statute of limitations.