High court revives Shiprock priest abuse case
By Bill Donovan
Special to the Times
WINDOW ROCK, Sept. 15, 2011
The Navajo Nation Supreme Court this week overturned a decision by the Shiprock District Court that dismissed the suit on grounds it was filed too late.
The suit was filed in May 2007, more than 20 years after the alleged abuse occurred. Tribal law requires a personal injury action be filed within two years from the date that the injury was discovered or should have been discovered.
John Doe, who is not identified in court documents due to the nature of the complaint, claims that in 1984 and 1985 when he was 14 and 15 years old, he was sexually abused by Charles Cichanowicz, a Franciscan priest assigned to Christ the King Catholic Church in Shiprock during the mid-1980s. He claims Cichanowicz gave him liquor and convinced him at the time that the experience was enjoyable.
Cichanowicz, who is no longer a priest and worked as a counselor in Lafayette, Ind., is also accused of sexually molesting young victims as a priest in two other suits.
In most lawsuits of this nature, the victim claims that he or she had blocked memories of the abuse and only recently began remembering what had happened.
In this case, the victim said he always knew what happened but not until 2007 did he connect it with the personal problems that he subsequently developed.
He appealed the lower court dismissal, and the Supreme Court said there were two major questions to be answered in the case: did the tribal court have justification to assert jurisdiction and did it err in dismissing the suit?
The high court agreed with the district court decision that the tribal courts have jurisdiction over non-member defendants regarding civil matters because of provisions in the Treaty of 1868.
The Supreme Court was unsure about exactly where the alleged abuse took place and whether it was on tribal land. The complaint did not specify the location.
The court pointed out that judicial resources would be "stretched if every case brought against a non-Indian required a detailed analysis" to establish land jurisdiction.
Still, "in the present climate, this governmental responsibility requires the district courts, however scarce our resources, to make a complete jurisdictional record that will withstand external jurisdictional challenge," the ruling stated.
So the case was sent back to Shiprock District Court for the court to do a "full jurisdictional inquiry."
As for the dismissal on statute-of-limitations grounds, the Supreme Court recognized in its ruling that it was setting new precedent. Up to now "repressed memory" was the only exception to the statute-of-limitations rule, and the District Court said no other court had ruled on a case where the plaintiff remembered the incidents, but did not recognize their impact on his life, or the nature of his injury, for more than 20 years.
The Supreme Court ruling also noted that the lower court was hampered by the fact that the plaintiff's only evidence in this regard was his own testimony. He did not call any expert witnesses to support his claim.
The District Court said the plaintiff's assertion was not sufficient without witnesses or psychiatric professionals when there is no physical harm.
"In this case we are dealing with only thoughts and the harm caused by thoughts," the lower court said in its dismissal ruling.
The Supreme Court ruling noted that noted that this type of victim was not envisioned when the Navajo Nation passed laws that provide extra time for victims to file a claim. The exception to the two-year statute of limitations was enacted for radiation victims whose injuries may take more time to become evident.
Over the years, however, it has become evident that Navajo children are in jeopardy from abuse.
The articles detailing studies done on sex abuse in Indian Country "suggest that Native American boys, as a relatively powerless minority, may be expected to have acute effects of withdrawal and loss of contact with community when exposed to such abuse ... ," the Supreme Court stated.
The justices also took note of the context in which the alleged abuse occurred, as non-traditional religions strived to assert their primacy on Navajo land.
"While the Navajo Nation is very tolerant of all religious traditions, it would be a cruel irony if the same authority figures who seek to replace our ancient holistic traditions are also harming our children in such unspeakable ways," the ruling stated.
In the case before it, the court noted that the plaintiff "asserted that he suffers great pain of mind that has affected his enjoyment of life and earning capacity, and incurs expenses for medical and psychological treatment, therapy and counseling."
And in making its ruling to allow the man's suit to proceed, the Supreme Court agreed that courts should take into account a person's upbringing, culture and circumstances.
"To determine what is reasonable for a member of the Navajo Nation, it is entirely appropriate to consider factors such as historical trauma and the deference expected of a people by authority figures of a colonizing culture," the ruling stated.
Jeff Anderson, an attorney for the plaintiff, praised the ruling and said it "clearly demonstrates an understanding of how victims suffer in silence and the importance of giving them a day in court."
Anderson, who has been representing survivors of clergy abuse in the United States for more than 25 years, said this was a major child abuse case.
"The ruling is not only correct on the merits, but significant in the way the court stood up for the rights of children who have been sexually abused - even if the trauma they experienced causes them to delay coming forward until well into their adulthood," he said.