LDS Church motion for injunction

8/16/2019 LDS Church motion for injunction

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86539368.2 0056812-00002

David J. Jordan (1751)David J. Williams (9186)

STOEL RIVES LLP

201 S Main Street, Suite 1100Salt Lake City, UT 84111

Telephone: (801) 328-3131

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

THE CORPORATION OF THEPRESIDENT OF THE CHURCH OF

JESUS CHRIST OF LATTER-DAY

SAINTS, a Utah corporation; LDS

FAMILY SERVICES

Plaintiffs

v.

RJ MM, and BN, individuals

Defendants.

AMENDED MOTION FOR

TEMPORARY RESTRAINING

ORDER/PRELIMINARY INJUNCTION

Civil No. 2:16-cv-00453-RJS

Judge Robert J. Shelby

STATEMENT OF RELIEF SOUGHT AND GROUNDS THEREFOR

Defendants RJ, MM, and BN have filed claims against these Plaintiffs in the Navajo

Nation District Court seeking damages for alleged acts of child abuse occurring while they were

living with nonmember host families in Utah cities and towns outside the Navajo

reservation. Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiffs hereby move

for a temporary restraining order and a preliminary injunction precluding Defendants from

proceeding with their claims in Navajo Tribal Court.

Case 2:16-cv-00453-RJS-BCW Document 8 Filed 06/03/16 Page 1 of 17


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86539368.2 0056812-00002 2

This Motion is made on the following grounds:

1. The Navajo Tribal Court lacks subject matter jurisdiction over Plaintiffs because

none of the alleged conduct took place on the Navajo reservation;

2. Plaintiffs will suffer irreparable harm if forced to litigate in the Navajo Tribal

Court;

3. The balance of harms supports enjoining the proceedings in the Navajo Tribal

Court; and

4.

The public interest will not be harmed by enjoining the Navajo Tribal Court

proceeding.

I.

INTRODUCTION

United States Supreme Court precedent recognizes that Indian tribes may exercise civil

subject-matter jurisdiction over nonmembers in limited circumstances “‘where tribes possess

authority to regulate the activities of nonmembers,…’” Nevada v. Hicks, 533 US 353, 358 n.2

(2001) (quoting Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997).) That said, the Supreme

Court has never decided a case in which a tribal court was found to have jurisdiction over a

nonmember, even for activities within reservation boundaries. See id. See also Montana v.

United States, 450 U.S. 544 (1981); Strate, 520 U.S. 438. What is more, the Supreme Court has

never suggested that a tribal court could exercise jurisdiction over the off-reservation activities of

a nonmember. Indeed, the Court has emphasized that tribal sovereignty stems from the tribes’

right to control their land and does not extend beyond reservation boundaries. See, e.g., Plains

Commerce Bank v. Long Family Land and Cattle Co., 554 U.S. 316, 328-332, 128 S.Ct. 2709,

2719-20 (2008).



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86539368.2 0056812-00002 3

Here, Defendants have filed claims against these Plaintiffs in the Navajo Nation District

Court (the “Tribal Court”) seeking damages for alleged acts of child abuse occurring while they

were living with nonmember host families in Utah cities and towns outside the Navajo

reservation. These claims far exceed the well-established jurisdictional limits of tribal courts.

Simply put, because the claims involve nonmember activity outside the reservation, the Tribal

Court has no jurisdiction. As such, Plaintiffs seek injunctive relief precluding Defendants from

proceeding with their claims in the Tribal Court.

II.

RELEVANT FACTS

1. In two separate actions, Plaintiffs (hereinafter the “Church Entities”) have been

sued in the Tribal Court by Defendants RJ, MM, and BN1, who are members of the Navajo tribe.

See RJ and MM Amended Complaint, attached hereto as Ex. A, at ¶¶ 6-7; BN Complaint,

attached hereto as Ex. B, at ¶¶ 5-6.

2. Doe Defendants claim that, between 1965-1972 (BN) and 1976-1983 (RJ and

MM), they participated in the ISPP; that, as part of the ISPP, they agreed to be placed in the

homes of host families outside the Navajo reservation to attend public school, and that, while

living in those homes, they were sexually assaulted. See Ex. A at ¶¶ 7, 14-24, 27; Ex. B at ¶¶ 6,

13-18, 21.2 Doe Defendants do not allege that any abuse occurred on Navajo tribal lands.

Instead, every act of abuse that they allege occurred in Utah, far from the reservation.

1 RJ, MM, and BN are now adults but, because they are alleged to have been sexually abused as

children, fictitious names have been used to protect their privacy. Hereafter, they will be

referred to as “Doe Defendants.”

2 Unfortunately, but not surprisingly, because Plaintiffs’ claims stretch back more than 40 years,

some witnesses have passed away.



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using both traditional Navajo healing methods and medical services; if needed.” Ex. A at ¶¶ 54-

73; Ex. B at ¶¶ 48-68.

III.

ARGUMENT

It is well-established that courts have the inherent authority to grant temporary restraining

orders “‘to preserve the status quo pending a final determination of the rights of the parties,’ in

order ‘to preserve the power to render a meaningful decision on the merits.’” Resolution Tr.

Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir. 1992) (quoting Lundgrin v. Claytor , 619 F.2d 61,

63 (10th Cir. 1980); Tri-State Generation & Transmission Ass’n, Inc. v. Shoshone River Power,

Inc., 805 F.2d 351, 355 (10th Cir. 1986)). The Tenth Circuit requires that the Church Entities

demonstrate four factors to establish that temporary injunctive relief is appropriate. They are: (1)

a substantial likelihood of success on the merits; (2) irreparable injury if the injunction is denied;

(3) the threatened injury to the movant outweighs the injury to the non-movant; and (4) the

injunction would not be adverse to the public interest. Dominion Video Satellite, Inc. v.

EchoStar Satellite Corp., 269 F.3d 1149, 1154 (10th Cir. 2001); Stevens v. Ocwen Fed. Bank

FSB, No. 2:06-CV-397 TS, 2006 WL 1409139, at *1 (D. Utah May 17, 2006) (“[t]he standard

for granting a TRO is the same as that for a preliminary injunction”). The Church Entities satisfy

each of these elements.3

3

With regard to the preliminary injunction factors, the Tenth Circuit has held that each factor isnot necessarily given equal weight.

The touchstone for obtaining [injunctive] relief is a showing of irreparable harm coupled

with a substantial likelihood of success on the merits. “There must exist a probably right

and a probable danger.” However, where irreparability exists and the balance of

hardships tips in favor of a movant, the probability-of-success requirement may besomewhat relaxed: “(I)t will ordinarily be enough that the plaintiff has raised questions

going to the merits so serious, substantial, difficult and doubtful as to make them a fair



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A.

THE CHURCH ENTITIES WILL PREVAIL ON THE MERITS

1. Tribal Courts Have Strictly Limited Jurisdiction Over Nonmembers

Whether tribal courts have jurisdiction over nonmembers is a federal question. Plains

Commerce Bank , 554 U.S. at 324. Far from possessing general jurisdiction, see Nevada, 533

U.S. at 367, tribal courts exercise authority that “centers on the land held by the tribe and on

tribal members within the reservation.” Plains Commerce Bank , 554 U.S. at 327. Consequently,

tribal jurisdiction “generally does not extend to nonmembers.” Id. at 340. As the Supreme Court

has explained, “[f]or powers not expressly conferred upon them by federal statute or treaty,

Indian tribes must rely upon their retained or inherent sovereignty.” Atkinson Trading Co., 532

U.S. at 649-50.

The scope of inherent tribal jurisdiction over non-Indians is controlled by Montana v.

United States, 450 U.S. 544 (1981). Montana reaffirmed that “the inherent sovereign powers of

an Indian tribe do not extend to the activities of nonmembers of the tribe.” Id. at 565 (emphasis

added). This statement of the limits of tribal power over nonmembers has become known as the

“ Montana Rule.”4 While acknowledging the possibility that tribal courts, in appropriate

ground for litigation and thus for more deliberate investigation.”

Community Comm. Co., Inc. v. City of Boulder, Colo., 660 F.2d 1370, 1375-76 (10th Cir. 1981)

(citations omitted). As detailed below, the Church Entities easily satisfy all four elements.

4

Montana addressed the tribe’s power to impose hunting and fishing regulations on non-Indianland within the reservation rather than the adjudicatory authority of the tribal courts. Followingthe Montana decision, in Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997), the U.S. Supreme

court expanded the Montana Rule to the tribe’s adjudicative jurisdiction:

As to nonmembers, we hold, a tribe’s adjudicative jurisdiction does not exceed its

legislative jurisdiction. Absent congressional direction enlarging tribal court jurisdiction, we adhere to that understanding. Subject to controlling provisions in

treaties and statutes, and the two exceptions identified in Montana, the civil



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circumstances, may have civil jurisdiction over nonmember conduct within the reservation’s

borders, the Supreme Court has never endorsed the exercise of civil adjudicatory authority over a

nonmember. And no Supreme Court decision has ever recognized tribal jurisdiction over a

nonmember for conduct outside of tribal lands. See Plains Commerce Bank , 554 U.S. at 332

(“ Montana and its progeny permit tribal regulation of non-member conduct inside the

reservation….”) (emphasis in original).

The Montana Rule governs this case. While the Rule is subject to two limited

exceptions,5 those caveats only apply to conduct occurring on the reservation. See, e.g., Hornell

Brewing Co. v. Rosebud Sioux Tribal Court , 133 F.3d 1087, 1091 (8th Cir. 1998). In Hornell,

for example, the Eighth Circuit stated that the Montana exceptions did not apply because the

conduct at issue occurred outside the reservation.

Indian tribes do, however, “retain inherent sovereign power to exercise some

forms of civil jurisdiction over non-Indians on their reservations.” The operative phrase is “on their reservations.” Neither Montana nor its progeny purports to

allow Indian tribes to exercise civil jurisdiction over the activities or conduct ofnon-Indians occurring outside their reservations.

Id. (citing Montana, 450 U.S. at 465) (emphasis in original); see also Philip Morris USA, Inc. v.

King Mountain Tobacco Co, Inc., 569 F.3d 932, 938 (9th Cir. 2009) (“[T]ribal jurisdiction is, of

authority of Indian tribes and their courts with respect to non-Indian fee landsgenerally “do[es] not extend to the activities of nonmembers of the tribe.”

5 “A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers

who enter consensual relationships with the tribe or its members, through commercial dealing,

contracts, leases, or other arrangements. … A tribe may also retain inherent power to exercise

civil authority over the conduct of non-Indians on fee lands within its reservation when thatconduct threatens or has some direct effect on the political integrity, the economic security, or

the health or welfare of the tribe.” Montana, 450 U.S. at 565-566.



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course, cabined by geography: The jurisdiction of tribal courts does not extend beyond tribal

boundaries.” (citing Atkinson Trading Co., 532 U.S. at 658 n. 12, 121 S. Ct. 1825).)

There is good reason for restricting tribal jurisdiction over nonmembers. As Justice

Souter noted, nonmembers compelled to litigate in tribal courts lack customary procedural

protections:

Tribal courts []differ from other American courts (and often from one another) intheir structure, in the substantive law they apply, and in the independence of their

judges. Although some modern tribal courts “mirror American courts” and “are

guided by written codes, rules, procedures, and guidelines,” tribal law is still

frequently unwritten, being based instead “on the values, mores, and norms of atribe and expressed in its customs, traditions, and practices,” and is often “handed

down orally or by example from one generation to another.” … The resulting lawapplicable in tribal courts is a complex “mix of tribal codes and federal, state, and

traditional law,” which would be unusually difficult for an outsider to sort out.

Nevada, 533 U.S. at 384-385, 121 S. Ct. 2304 (Souter, J., concurring) (quotations and citations

omitted). More significantly, nonmember litigants in tribal court do not enjoy the federal

constitutional right of due process or the guarantees of the Bill of Rights. See Duro v. Reina, 495

U.S. 676, 693 (1990) (“It is significant that the Bill of Rights does not apply to Indian tribal

governments.”).

2. The Navajo Tribal Court Lacks Jurisdiction Here

a. Tribal jurisdiction does not extend to tort claims arising from

abuse that occurred outside the reservation.

The Tribal Court cannot exercise jurisdiction over the Church Entities because the

alleged abuse took place outside the borders of the Navajo reservation. Doe Defendants claim

they were the victims of abuse while living with nonmember host families in various Utah cities

and towns. (Fact ¶ 2). They do not claim that any of the alleged abuse occurred on the

reservation. Without even an allegation that they were injured on Indian lands, Doe Defendants



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more, placement decisions were not made on tribal lands. Rather, those decisions were made by

LDS Social Services employees operating from their offices in Cedar City and Salt Lake City,

assisted by ecclesiastical leaders in the cities and towns of the host families with whom the tribal

members were placed. ( Id.)

Second, Defendant RJ claims he disclosed the abuse to an agent of the Church Entities

when he was visiting the reservation. (Fact ¶ 3.) This allegation cannot give rise to tribal court

jurisdiction, even if true, because hearing a report of abuse is not an “act” occurring on the

reservation. RJ’s complaint is not that the agent acted on the reservation, but that he did not act

in failing to report what he had allegedly heard. Non-action on the reservation cannot give rise

to tribal jurisdiction. See Plains Commerce Bank , 554 U.S. at 332 (“ Montana and its progeny

permit tribal regulation of nonmember conduct inside the reservation….” (emphasis in original).)

Finally, Doe Defendants allege that the failure to report the abuse to their parents, police

or child protective services occurred on the reservation. (Fact ¶ 3.) Again, this allegation is not

of an “act” that occurred on the reservation. At most, Doe Defendants allege the Church Entities

did not do something on the reservation they should have done. Simply put, there is no conduct

occurring on the reservation that would trigger an exception to the Montana Rule and, therefore,

the judicial powers of the Navajo Nation do not extend to the Church Entities.

b. Any doubts should be resolved against tribal jurisdiction because

of the threatened loss of the Church Entities’ constitutional rights.

That Doe Defendants are seeking to extend tribal jurisdiction far beyond of the bounds

set by the U.S. Supreme Court is highlighted by the relief they seek. Doe Defendants would

impose world-wide changes to church policy. These changes include the removal of church

leaders when any allegation of abuse is made, specifying to whom church leaders must report



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The church autonomy doctrine is a corollary of the Constitution's separation of church

and state–a recognition that churches have "autonomy in making decisions regarding their own

internal affairs." Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 655 (10th Cir.

2002). Prohibiting a church from speaking in opposition to legal measures inimical to its

interests would be an unmistakable instance of viewpoint discrimination in violation of free

speech, see Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995), and a

prior restraint on core political speech. See Org. for a Better Austin v. Keefe, 402 U.S. 415

(1971) (prior restraint); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346 (1995) (political

speech).

Even if jurisdiction in the Tribal Court were a close question—and it is not—Doe

Defendants’ quest to deprive the Church Entities of their constitutional rights should decide the

matter. Repeatedly, the Supreme Court has expressed concern that tribal authority over

nonmembers is unconstrained by constitutional protections. See Plains Commerce Bank , 554

U.S. at 337 (“The Bill of Rights does not apply to Indian tribes.”) (citation omitted); Duro v.

Reina, 495 U.S. 676, 693 (1990) (focusing on “consent and the protections of citizenship” is

proper because “[i]t is significant that the Bill of Rights does not apply to Indian tribal

governments.”). Indeed, Montana’s “presumption against tribal-court civil jurisdiction squares

with … an overriding concern that citizens who are not tribal members be ‘protected … from

unwarranted intrusions on their personal liberty.’” Nevada, 533 U.S. at 384 (Souter, J.,

concurring) (quotation omitted). Hence, unless this Court enjoins the Doe Defendants, the

Church Entities will be compelled to defend themselves in a tribal forum where their

constitutional rights are being openly attacked.



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3. Exhaustion In Tribal Court Is Not Required

As a general rule, “federal courts should abstain from hearing cases that challenge tribal

court jurisdiction until tribal court remedies, including tribal appellate review, are exhausted.”

Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1149 (10th Cir. 2011). But “[w]hen the

dispute involves non-Indian activity occurring outside the reservation, however, the policies

behind the tribal exhaustion rule are not so obviously served.” Texaco, Inc. v. Zah, 5 F.3d 1374,

1377 (10th

Cir. 1993). For this reason, federal courts have recognized exceptions to the

exhaustion requirement, including “where it is clear that the tribal court lacks jurisdiction and

that judicial proceedings would serve no purpose other than delay.” Thlopthlocco Tribal Town v.

Stidham, 762 F.3d 1226, 1238 (10th Cir. 2014) (citations omitted).

The conduct giving rise to Doe Defendants’ claims in Tribal Court did not occur on the

reservation. As such, the policies supporting the exhaustion rule are not served here. Seen for

what it is, Doe Defendants are attempting to invoke Tribal Court jurisdiction over nonmembers

for activities outside of the reservation. That goes directly against well-established case law that

cuts off Tribal Court jurisdiction at the reservation border. It is clear that the Tribal Court lacks

jurisdiction here, and, for that reason, exhaustion would serve no purpose other than to delay.

See, e.g., Crowe & Dunlevy¸640 F.3d at 1149; see also Strate, 520 U.S. at 459; Hornell Brewing

Co., 133 F.3d at 1093 (seeing “no need for further exhaustion” because it was “plain that the

Breweries’ conduct outside the Rosebud Sioux Reservation does not fall with the Tribe’s

inherent sovereign authority.”)



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B.

THE CHURCH ENTITIES WILL SUFFER IRREPARABLE HARM IF

FORCED TO LITIGATE IN A COURT WITH NO JURISDICTION

Because the Tribal Court lacks jurisdiction, the Church Entities will suffer irreparable

harm if forced to litigate there. A litigant demonstrates irreparable harm by showing “a

significant risk that he or she will experience harm that cannot be compensated after the fact by

monetary damages.” RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1210 (10th Cir. 2009).

Furthermore, “[a] plaintiff who can show a significant risk of irreparable harm has demonstrated

that the harm is not speculative” and will be deemed to have satisfied its burden. Id. Here, the

Church Entities clearly satisfy that burden.

First, as discussed above, because Doe Defendants’ requested relief would violate the

Church Entities’ First Amendment rights, and because tribal law is unconstrained by federal due

process protections, the Church Entities would be irreparably harmed by being subjected to tribal

court jurisdiction. See, infra, § III(A)(2)(b). “The loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S.

347, 373-74 (1976) (citation omitted). Indeed, this Court has held that the “[v]iolation of core

constitutional rights is almost always an irreparable harm.” Utah Republican Party v. Herbert ,

133 F.Supp. 1337, 1346 (D. Utah 2015) (citing Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir.

2012) (“[W]hen an alleged constitutional right is involved, most courts hold that no further

showing of irreparable injury is necessary”). For this reason alone, the Church Entities have

demonstrated irreparable harm.

What is more, Courts have routinely concluded that the risk of being forced to spend

unnecessary time, money, and effort litigating in a court that does not have jurisdiction

constitutes irreparable harm. See, e.g., Crow v. Dunlevy, P.C. v Stidham, 609 F.Supp.2d 1211,



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1222 (N.D. Okla. 2009); see also UNC Res. Inc. v. Benally, 518 F. Supp. 1046, 1053 (D. Ariz.,

1981) (granting motion for preliminary injunction given plaintiff’s argument that tribal court

lacked jurisdiction); Kerr-McGee Corp. v. Farley, 88 F.Supp.2d 1219 (D.N.M. 2000)("The Court

finds that Kerr-McGee will suffer irreparable damage if Tribal Claimants are not enjoined from

proceeding in Navajo Court, as demonstrated by the expense and time involved in litigating this

case in tribal court."); Seneca-Cayuga Tribe Of Oklahoma. State of Oklahoma, 874 F.2d

709(10th Cir. 1989) ("The Tribes would also be forced to expend time and effort on litigation in

a court that does not have jurisdiction over them...."); Chiwewe v. The Burlington Northern and

Santa Fe Railway Co., 2002 WL 31924768 (D.N.M.)(same). As shown above, the Tribal Court

lacks jurisdiction in this matter and, therefore, the Church Entities’ would suffer irreparable harm

if compelled to litigate in that forum.

C.

THE BALANCE OF HARMS SUPPORTS ENJOINING THE

PROCEEDINGS IN TRIBAL COURT

Doe Defendants will not suffer unfair prejudice if proceedings in Tribal Court are

enjoined. They can file their suit in Utah courts, the proper forum, and seek relief there. Given

the infancy of this case, there will be no significant delay associated with a change in forum.

In contrast, the Church Entities would be irreparably harmed by having to litigate in a

forum where federal law does not authorize tribal jurisdiction over non-Indians and where they

would be subject to the loss of their most basic constitutional rights. See infra §III(B).

D.

THE PUBLIC INTEREST WILL NOT BE HARMED BY ENJOINING

THE TRIBAL COURT PROCEEDING

There is usually little public interest in a tort dispute between private parties. However,

where, as here, the constitutional rights of one of party are threatened, the public interest weighs



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heavily in favor of protecting those rights. See Nevada, 533 U.S. at 384 (Souter, J., concurring)

(expressing an overriding concern that citizens who are not tribal members be ‘protected … from

unwarranted intrusions on their personal liberty.’”)

There is also a significant public interest in preventing a tribal court from exercising

jurisdiction over nonmembers where it has none. See Ford Motor Company v. Todocheene, 258

F.Supp.2d 1038, 1057 (D. Ariz. 2002). Courts have routinely held that the public interest is

served by preventing tribal courts from proceeding in cases where they lack jurisdiction. See, e.g.

UNC Resources Inc. v. Bennalfy, 514 F. Supp. 358 (D.N.M. 1981) ("Nor will the public interest

be harmed by an injunction preventing the defendants from participating in an unlawful exercise

of tribal power."); Chiwewe v. The Burlington Northern and Santa Fe Railway Co., 2002 WL

31924768 (D.N.M.)(same); Kerr-McGee Corporation v. Farley, 88 F.Supp.2d 1219 (D.N.M.

2000).

IV.

CONCLUSION

The Church Entities’ request for a temporary injunction satisfies all four elements

required for relief. They will prevail on the merits because tribal court jurisdiction is

unquestionably lacking. They face irreparable harm if forced to proceed with the defense of the

suit in a forum with no jurisdiction. In comparison, there is no unfair prejudice to Doe

Defendants, who may pursue their claims in Utah courts. Finally, the public interest would be

served by appropriately limiting the jurisdiction of the Tribal Court.



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Therefore, the Church Entities request that the Court grant the present motion and enjoin

any further proceedings in the Tribal Court

DATED: June 3, 2016.

STOEL RIVES LLP

/s/ David J. Jordan

David J. Jordan

David J. Williams

Attorneys for Plaintiffs



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EXHIBIT B



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William

R. Keeler

Kpplen & Kpelpn,

LLP

108 E. Artec Avenue

Gallup,

NM 87301

Phone:

(505)722-5608

Attorneyfor Plaintiff

NAVAJO

NATION

DISTRICT

COURT

DISTRICT

OF

WINDOW

ROCK.

ARIZONA

BN,

vs.

THE

CORPORATION

OF

THE PRESIDENT

OF

THE

CHURCH

OF JESUS CHRIST

OF

LATTER-DAY

SAINTS, a

Utah corporation;

LDS

FAMILY

SERVICES,

a

Utah corporation,

Plaintifl

case No.

nB_C-r'

-1

,l

_

|

Lf

COMPLAINT

FOR

PERSONAL

INruRY

Defendants.

Plaintiff,

through counsel, and

based upon

information and

belief

available at the time of

the filing

of this

Complaint,

brings

this

Complaint

under

Navajo

Law

for damages

resulting from

injuries

suffered by Plaintiff

as a

result

of Defendants' negligence

and

other

misconduct

described

herein.

I. JURISDJCTIqN

AND

VENUE

l.

At the

time

of

the

events

described in this Complaint, all

parties

resided

on

and/or

maintained continuous and systematic

contacts

with

the

Navajo

Nation.

2.

This

Court

has civil,

personal

and

subject-matter

jurisdiction

over the

Defendants

based

upon

the consensual

relationships between

the Defendants and the

Navajo

Nation.

3. This

Court has civil,

personal

and subject-matter

jurisdiction

over

the

Defendants

because

the conduct

of

the Defendants described

herein

threatens

the health,

welfare and cultural

I.

COMPLAINTFOR

PERSONAL

INJURY



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well-being

of the Navajo Nation.

II. PARTIES

4.

Plaintiff

BN

is

an

adult

female

who is

an

enrolled

member

of

the

Navajo Nation.

Plaintiff

was a minor at

the time

of the

sexual

abuse alleged

herein. During

the

relevant

time

period,

Plaintiff

was a resident

of the Navajo Nation where she

was taken

from

the

Navajo Nation

by

the Defendants

and

placed

with

foster families

in

Utah.

There,

Plaintiff

was

sexually

abused.

The

name

used by Plaintiff in this

Complaint is

not

the

real

name of Plaintiff, but

is

a

fictitious

name used

to

protect

the

privacy

of

Plaintiff, a

victim

of

childhood sexual

abuse.

5. Defendant

Corporation of the President of the Church of

Jesus

Christ of

Latter-day

Saints,

is

a corporation

duly

organized and

operating

pursuant

to

the laws

of Utah

(hereinafter

COP ).

COP

operates church meetinghouses

within

the Navajo Nation

and in tens of thousands

of

other locations

worldwide and

is

one

of

the corporate entities through

which

the

LDS

Church

conducts its affairs.

At all relevant

times. the COP

conducted continuous and systemic

activities

within the

Navajo Nation.

6. Defendant

LDS Family

Services is

a

nonprofit Utah

corporation

owned

and

operated

by the

COP.

At

all

relevant times,

LDS

Family

Services was acting

as

the

agent

of

the

COP.

Upon information

and

belief,

LDS Family

Services

formerly

operated

under the

name LDS

Social Services. From approximately

1947

to the mid 1990's, LDS Family Services operated

a

program

known as the Indian

Placement

Program or

the

Lamanite

Placement Program

(hereinafter

the

LPP ).

At

all relevant times,

Plaintiff was

sexually

abused

while

she was

participating

in the LPP

and

while

she

was

in

the

care and

custody

of

the

Defendants.

At all

relevant

times,

LDS Family

Services,

in

association

with

the

other

Defendant, COP,

conducted

continuous and systemic activities within the Navajo Nation.

7. Defendants COP and

LDS Family Services

will

be

referred

to

collectively

throughout

the

complaint

as the

LDS

Defendants

2.

COMPLAINT

FOR

PERSONAL

INJURY



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III.

RELEVANT

FACTS APPLICABLE TO

PLAINTIFF

8.

At all times

material

hereto,

Plaintiff was a

participant

in

the LPP described in this

Complaint.

Upon

information

and

belief, the LPP was developed and maintained

at

the behest of

and

for the

benefit

of

the

LDS

Defendants.

According

to

the

1968

version

of

the

Lamanite

Handbook

of

the Church

of Jesus Christ

of

Latter-day

Saints,

in

September

of

1946,

the acting

President of the

Church, George Albert

Smith,

appointed

Spencer

W. Kimball

to head the

General

Lamanite

Committee

with

the charge

to

see

that the

gospel

was carried to all

the children

of

Lehi

(which

includes

the Lamanites)

all

over the world. Kimball's

commitment

to

the

Native

Americans

(commonly

referred

to

as Lamanites

by

the Defendants)

is explained in a January 7,

2076 article

in Indian Country

Today:

Kimball's commitment

to the Native Americans stemmed from

the

Mormon

belief

that

America's

indigenous

people

actually fled from

Israel in the

year

600

B.C.

After

settling

in

an unspecified

location

in

the Americas,

the

people

split

up into

two

groups:

the

Nephites, a righteous and

civilized

people;

and the Lamanites,

an

idle,

savage

and bloodthirsty

people

who,

after

hardening

their

hearts, were

cursed

by God

with a

skin

of

blackness and

thus

became

loathsome.

Read

more at http:li'indiancountrytodat'meclianetv,ork.cont/20I6i0l

i}Tiassintilation-lool-

or-blessirtg-irt,side-mormon-indian-sludent-placement-rtroqrant-

162959

9. The

LDS

Church's

desire

to convert Native

American or

Lamanite children and

assimilate them into

their

culture reflects

teachings

in

the

Book

of Mormon,

a

book

of

canonized

scripture

unique

to the Mormon religion.

According

to this canonized

Mormon

scripture, because

the

Lamanites

had

hardened their hearts

against

the Lord,

they were

cursed

with a skin

of

blackness

to

distinguish them from the righteous Nephites.

And

he had caused

the cursing to

come upon

them,

yea, even

a

sore

cursing,

because

of

their

iniquity.

For behold, they

had hardened

their

hearts

against

him, that they

had become

like

unto a flint; wherefore,

as

they were

white, and exceedingly

fair

and

delightsome, that they might not be enticing unto

my

people

the

Lord

God did

cause a

skin of blackness

to

come

upon

them.

(2

Nephi

5:2I,

Book of

Mormon).

10. At

the

time Plaintiff was taken

from

the Navajo

Nation

and

placed

into

Mormon

foster

homes,

the

LDS

Church taught that the Native

Americans,

including

the

Plaintiff, were

3.

COMPLAINT

FOR

PERSONAL INJURY



40/57

Lamanites

as described

in

the

Book of

Mormon and summarized above. The leaders of the LDS

Church

felt

driven

to

instruct the

Lamanites

within the Navajo Nation

concerning

their

true

ancestry and

convert

them

back

to the

one true faith. Therefore, converting

the

Navajo

Nation

children and

immersing them

into white Mormon

culture was not

only

rooted in

Mormon

scripture

but

believed to be divinely

directed as

the

way

to

redeem

and

restore

the Lamanites

to

their

prophetic

destiny.

An

example

of

this belief is

a

quote

by

long-time Mormon

Prophet,

Spencer

W.

Kimball, who

suggested that Latter-day

Saint

Native

Americans

were

gradually

turning lighter,

essentially

breaking

the dark

skin

curse:

I

saw

a

striking

contrast in the

progress

of

the Indian

people

today... The day

of

the

Lamanites

is

nigh.

For

years

they

have

been

growing

delightsome, and

they

are

now

becoming

white and delightsome,

as

they were

promised.

In

this

picture

of

the

twenty Lamanite

missionaries,

fifteen of the twenty were as light as

Anglos,

flve were

darker

but equally

delightsorne.

The

children in

the

home

placement

progran

in

Utah are

often lighter

than their

brothers

and

sisters in the

hogans

on

the reservation.

At

one meeting

a

father and rnother and

their

sixteen-year-old

daughter

we

represent,

the little

member

girl-sixteen-sitting

between

the dark

father

and rnother,

and it was

evident

she

was several

shades

lighter than her

parents----on

the

same

reservation,

in the

same hogan, subject

to

the

same sun

and

wind

and

weather

....

These

young

members

of

the

Church are

changing to

wlriteness

and

to delightsorneness.

Conference

Report, October

1960;

Improvement

Era,

December

1

960,

pp.

922-23.

1i.

Upon

information

and

belief, in

order

to

qualifu

for

the LPP,

Navajo

Children had

to

be at least

eight

years

old and baptized

members

of

the

Mormon

Church in

good

standing.

Plaintiff

was

baptized a member

of

the

Mormon

Church

while

residing on

the Navajo Nation.

The

decision

to

remove Plaintiff

from

her

family was made

by

case

workers and/or employees

and/or

agents

of the LDS Defendants

while

on the Navajo

Nation.

Plaintiff was then transported

off

the

Navajo

Nation

and

moved

to Utah

and placed

with

Mormon

foster

families.

Upon information

and

belief, the

foster

families

received

stipends and/or subsidies

(and

were

promised

unspecified

spiritual blessings)

from

the

LDS

Defendants for

each

Native

American child

placed

in the home.

12.

Upon

information

and belief

and

at

all relevant times, the Mormon foster families

whose

homes Plaintiffs were

placed,

were the employees

and/or

agents

of the

LDS

nto

4.

COMPLAINT

FOR

PERSONAL INJURY



41/57

Defendants.

At

all relevant

times, the LDS

Defendants had care and custody of the

Plaintiff during

Plaintiff

s

involvement

with

the LPP and for the

duration of their

placement

into Mormon foster

family homes

in

Utah.

All acts

of sexual abuse alleged herein took

place

during

the

LPP

while

Plaintiff

was in the custody

and

control

of the Defendants.

Plaintiff

BN

13.

In

August

of

1964,

LDS Defendants

removed

BN from her

home,

within the

boundaries

of the Navajo Nation,

and

placed

her

with a

foster

family in

Utah of

what is believed

to be

BN's

5th

grade year.

Following

completion

of

this

school

year,

BN returned

to

her home on

the

Navajo

Nation.

14.

In

approximately

August

of 1965,

for the

start

of what

is

believed

to

be

BN's

sixth

grade

year

in

school,

BN

was again

removed from her

home on

the Navajo Nation and

placed

with

the C. family

in River

Heights, Utah.

During

BN's

placement

in

the C. home,

BN

was sexually

molested

on

multiple

occasions

(to

include sexual

penetration)

by her foster father. This

sexual

abuse started

at the end

of

September 1965 and continued

until

the end of the school

year (May

of

1966).

After

school

ended,

BN returned

home to the Navajo Nation.

15.

In August

of

1966,

BN

was

again

removed

from

her

home

and

transported

to Utah.

Prior to

being

placed

with

her

new

family

in Utah,

BN,

upon

arriving

in Utah, underwent

a

medical

examination

(with

no

one

else

present)

by someone whom she believes

was

a

physician.

This

physician

or health care

provider

examined

BN in a

location, believed

to

be a

cultural

hall,

in a

Mormon

Chapel

or

Stake

Center, that was

arranged

in

a

series of

rooms

by what

BN

recalls as

partitions .

This

health care

provider

sexually

molested and raped BN during this examination.

He

felt

BN's

breasts,

checked

her vaginal

area

without

any gloves

on

and

made a

comment that

she

didn't

have a hymen.

This term was unfamiliar to

BN

at the time. He then went on to ask her

if she had already

given

birth or

was sexually

active. BN

was scared

and so she

didn't tell

this

health

care

provider

about

being repeatedly

raped

by her

foster father during

the

previous

school

year.

This

health care

provider

continued

with his so-called

exam by

continuing to

violate

her

COMPLAINT

FOR

PERSONAL INJURY



42/57

with

his

finger

while asking her if

it

felt

good

and telling

her

that

he could tell

she

had

sex

lots

of

times

before.

This healthcare

provider

then

scooted

BN further

down on the exam

table.

BN had her

eyes closed

waiting

for it

to

end, when to her horror

this

so-called

medical

exam

escalated into

a full-blown rape situation. This health care

provider

then

penetrated

BN

with

his

penis.

He

quickly

ejaculated

and

then

proceeded

to

clean

BN.

BN

was

now in tears as

this health

care

provider

told her

she

had

passed

the exam

,

that

she

would be ok

and that

she was free to

go.

16.

During her

12th

grade year,

BN

was

placed

in the W. home

in

Orem, Utah.

BN was

raped

on several occasions by her much

larger and

stronger

foster brother.

After the

first

time

she

was

raped,

BN

left

her

room

and

told

both

of

her

foster

parents

what

had

happened. Her

foster

parents

said

it

wouldn't

happen

again

and

proceeded

to

partially

blame

her

for

the rape saying that

she

turned

guys

on because she

had big tits .

Unfortunately,

it

did

happen

again,

on

multiple

occasions.

BN

remembers

screaming and crying

while

she

was being

raped.

She

is

sure

her

foster

parents

heard

her but did

nothing.

She

told her foster

parents

that she

continued

to be raped,

still

nothing was done to

protect

her.

17.

Additionally, BN

disclosed the

sexual

abuse she

suffered

in

12th

grade

to

agents

of

LDS Defendants, including but

not limited

to

her LPP

case

worker.

Again,

nothing

was done and

she

continued to

be

raped

by her foster brother.

18. BN recalls another incident

when

her foster

brother

raped

her

on

the

Provo Lake

beach.

She escaped

and

ran back home sobbing

to her foster

dad

who told

her that

anything

that

happens stays in this house.

19. As

a

direct

result

of the wrongful

conduct

alleged

herein, BN

has suffered,

and

continues

to

suffer

great

pain

of mind

and

body,

shock,

emotional

distress,

physical

manifestations

of

emotional

distress,

embarrassment,

loss of

self-esteem,

disgrace,

humiliation,

and

loss

of

enjoyment of

life;

has

suffered

and continues

to

suffer

spiritually;

was

prevented and

will continue

to

be

prevented

from

performing Plaintiff

s

daily

activities

and obtaining

the

full enjoyment

of

life;

has sustained

and continues

to sustain

loss of

earnings

and

earning

capacity;

and/or

has

6.

COMPLAINT

FOR

PERSONAL INJURY



43/57

incurred

and

continues to incur expenses

for medical

and

psychological

treatment, therapy,

and

counselins.

IV. FIRST

CAUSE

OF

ACTION

CHILDHOOD

SEXIJAL ABUSE

20. Plaintiffs

incorporate

all

paragraphs

of

this

Complaint

as

if

fully set

forth

herein.

21.

Between

approximately

1965 and

1972, Plaintiff, on multiple occasions,

was

sexually abused

while

she

participated

in

the LPP under the care and custody of the LDS

Defendants.

22.

The sexual abuse was either

committed by individuals who

at

all

times

were

in

the

course and scope

of

acting

as

seryants andlor

agents

of

the

LDS

Defendants,

or was

committed by

others who

were known

to these servants and/or agents

or

under the control and supervision

of

these servants and/or

agents, making

the

LDS Defendants vicariously liable for

the

injuries

caused

by

Plaintiff

s abusers

under the doctrine

of respondeat superior.

23.

Upon

information

and

beliei

prior

to

or during the

abuse

alleged

above,

the LDS

Defendants

knew,

had reason

to

know,

or were otherwise on notice of the unlawful sexual conduct

by

certain

foster

family

members under

the

LPP.

Defendants failed

to

take reasonable

steps

and

failed to

implement

reasonable safeguards to

avoid

acts

of

unlawful sexual conduct

in

the future

by

these certain

foster

family

members

and

health care

providers,

including,

but

not

limited

to,

removing Plaintiff

from the foster

homes

where

sexual

abuse

was

occurring

and/or

placing

Plaintiff in foster

homes where they knew

or should

have known that

Plaintiff

was at

an

increased

risk of being

sexual

abused.

Furthermore,

at no

time

during the

periods

of

time

alleged

did

Defendants

have in

place

a system

or

procedure

to supervise

and/or monitor employees,

volunteers, representatives,

or

agents to ensure that they did not molest or abuse

minors

or

allow

such

to occur.

24.

Upon information

and

belief, after

learning

that BN was

being

sexually

abused

during her

participation

in the LPP, the LDS Defendants,

by

and

through

their

agents,

ratified

the

wrongful

conduct

described

herein

by failing to

report

it

to

law enforcement

authorities,

COMPLAINT

FOR

PERSONAL INJURY



44/57


45/57

Defendants

vicariously

liable for the

injuries

caused under the doctrine of

respondeat superior.

30.

Upon

information and

belief,

after learning

of the

health

care

providers

and LPP

foster families'

wrongful

conduct, the LDS Defendants,

by

and through

their

agents,

ratified the

wrongful

conduct described herein by failing to report

it

to

law

enforcement

authorities,

prospective

LDS members, current

LDS

members, their families,

victims, and the

public.

31.

Upon

information and

belief,

prior

to

or during the

abuse alleged above,

the

LDS

Defendants

knew,

had

reason

to

know,

or

were

otherwise on

notice of

the

unlawful

sexual conduct

by LPP foster

family

members. The

LDS Defendants

failed to take

reasonable steps and

failed

to

implement reasonable

safeguards to avoid acts

of

unlawful

sexual conduct

in the future by the LPP

foster

families, including, but not limited to,

removing

Plaintiff

from

LPP foster

family

homes

where

sexual

abuse was

occurring. Furthermore, at

no time during the

periods

of

time

alleged

herein

did the

LDS

Defendants have

in

place

a

system

or

procedure

to

supervise

and/or monitor

employees,

volunteers,

representatives,

or

agents to

ensure

that they did not molest or abuse minors

in

Defendants'

care,

including

the Plaintiff.

32.

As

a

result

of

the above-described conduct,

Plaintiff

has suffered,

and continues to

suffer,

great

pain

of

mind

and

body,

shock, emotional

distress,

physical

manifestations

of

emotional

distress, embarrassment,

loss

of self-esteem,

disgrace,

humiliation,

and loss

of

enjoyment of life; have

suffered

and continue to suffer spiritually;

was

prevented

and

will continue

to

be

prevented

from

performing

Plaintiff

s

daily

activities

and obtaining the full

enjoyment

of

life; has sustained

and will continue

to

sustain

loss

of

earnings and

eaming

capacity;

and/or has

incurred

and

will continue to incur

expenses

for medical

and

psychological

treatment, therapy,

and

counselins.

VI. THIRD CAUSE OF

ACTION

-

NEGLIGENCE

33. Plaintiff

incorporates all

paragraphs

of this Complaint

as if

fully set

forth

herein.

34. The LDS Defendants

had a

duty

to

protect

the minor

Plaintiff

when

Plaintiff

was

entrusted

to their

care

by

Plaintiff

s

parents.

Plaintiff s

care, welfare,

and/or

physical custody

was

9.

COMPLAINT

FOR

PERSONAL INJURY



46/57

temporarily

entrusted

to

the LDS Defendants. The LDS

Defendants

voluntarily

accepted the

entrusted

care

of Plaintiff. As

such,

Defendants owed Plaintiff,

a

minor

child,

a

special

duty

of

care, in addition

to a duty

of

ordinary

care, and

owed

Plaintiff

the higher duty of

care that adults

dealing

with

children

owe to

protect

them from

harm.

35.

The

LDS Defendants, by and through

their agents, servants

and employees,

knew

or

reasonably

should have

known of

the

dangerous

and exploitive

propensities

of

some

of the

health care

providers

and LPP foster

family members.

It was foreseeable

that

if

Defendants

did

not

adequately exercise

or

provide

the duty

of

care owed

to

children

in

their care, including but

not

limited

to

Plaintiff,

the children

entrusted

to Defendants'

care

would be vulnerable

to

sexual

abuse

by

certain LPP foster

family

members.

36. The LDS Defendants breached their duty of

care

to

the

minor

Plaintiff by

allowing

certain LPP foster

family

members and health care

providers

to come

into contact with the minor

Plaintiff

without

supervision; by

failing

to

adequately

supervise

certain

LPP foster

family members

and health care

providers

whom they

permitted

and enabled

to

have

access

to

Plaintiff;

by failing

to

investigate

or

otherwise confirm or

deny

such

facts about certain

LPP foster

family members

or

health

care

providers; by

failing

to

tell

or concealing

from

Plaintifl

Plaintiff

s

parents,

guardians,

or

law

enforcement

officials

that

certain

people

described

above were or

may have been sexually

abusing

minors;

by failing to tell

or concealing

from

Plaintiffs

parents,

guardians,

or law

enforcement officials

that

Plaintiff

was

or

may have

been

sexually

abused after

Defendants

knew

or had reason to know about

the sexual

abuse,

thereby continuing

to endanger Plaintiff.

37

.

The negligent

acts of

removing

Plaintiff

from the Navajo

Nation and

the decision

to

place

her

in dangerous

homes or

situations occurred in

part

on the Navajo

Nation.

Likewise,

the

failure to

disclose to

Plaintiff s

parents,

to

police

or to child

protective services, the sexual

abuse

that

was occurring within the LPP also occurred

within the Navajo

Nation.

38. As

a

result of the above-described

conduct,

Plaintiff has

suffered,

and

continues to

suffer

great pain

of mind and body, shock,

emotional distress,

physical

manifestations

of emotional

distress, embarrassment,

loss

of

self-esteem,

disgrace,

humiliation,

and

loss

of

enjoyment

of

life;

IO.

COMPLAINT

FOR

PERSONAL INJURY



47/57

has

suffered

and

continues

to

suffer spiritually;

was

prevented and

will continue

to

be

prevented

from

performing

Plaintiff s daily activities and obtaining

the

full

enjoyment

of

life;

has

sustained

and will continue

to sustain loss

of

earnings

and eaming

capacity;

andlor has

incurred

and

will

continue to incur expenses for medical and

psychological treatment,

therapy,

and

counseling.

VII.

FOURTH

CAUSE

OF

ACTION

NEGLIGENT SUPERVISION/FAILURE

TO WARN

39. Plaintiff

incorporates

all

paragraphs

of

this Complaint

as

if fully set

forth

herein.

40.

The LDS Defendants had a duty

to

provide

reasonable

supervision

of LPP

foster

families;

to use reasonable

care

in investigating

potential LPP foster

families;

and

to

provide

adequate

warning to

the

Plaintiff,

the

Plaintiff

s

family

and

minor

LPP

participants

of

certain

LPP

foster

family

members'

dangerous

propensities

and

unfitness.

4I.

The LDS Defendants by and through

their

agents, servants

and/or employees,

knew

or

reasonably

should

have

known

of

the

dangerous

and exploitive

propensities of certain

health

care

providers

and

certain LPP

foster family members

and/or that these

certain

persons

were

unfit

agents.

Despite

such knowledge,

the

LDS

Defendants

negligently

failed to

supervise

the

LPP

foster

families

and

health

care

providers whom

the

LDS

Defendants placed in

the

position

of

trust

and

authority

as

religious

instructors, surrogate

parents,

spiritual

mentors, emotional

mentors,

and/or other authority figures,

where

they were

able

to commit

(or

allow

others

to commit)

the

wrongful acts

against the

Plaintiff.

The

LDS

Defendants

further

failed

to take reasonable

measures

to

prevent

future

sexual abuse

while Plaintiff was

in the LPP.

42.

The negligent acts of

repeatedly

failing

to warn Plaintiff

and

her

family,

failing to

report ongoing

sexual abuse

to

police, placing

Plaintiff in

dangerous

homes

etc., occurred

within

the Navajo Nation,

43.

As

a

result

of

the above-described

conduct,

Plaintiff

has suffered,

and continues

to

suffer

great pain

of mind and body, shock,

emotional

distress,

physical manifestations

of emotional

distress,

embarrassment, loss

of self-esteem,

disgrace,

humiliation,

and loss

of

enjoyment

of

life;

has suffered and

continues to

suffer spiritually;

was

prevented

and

will continue

to be

prevented

I

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COMPLAINT

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48/57

from

performing

Plaintiff

s daily activities

and obtaining

the full enjoyment of

life; has sustained

and will continue

to sustain loss

of

earnings

and earning

capacity; and/or has

incurred

and will

continue

to

incur expenses

for medical and

psychological

treatment,

therapy,

and

counseling.

VIII.

FIFTH

CAUSE OF

ACTION

INTENTIONAL

INFLICTION OF EMOTIONAL

DISTRESS

44.

Plaintiff

incorporates

all

paragraphs

of

this Complaint

as

if fully

set

forth herein.

45.

The

LDS

Defendants'

conduct was extreme and

outraseous

and

was intentional or

done recklessly.

46.

As

a result

of

Defendants' conduct,

Plaintiff

has

experienced

and continues to

experience

severe

emotional

distress.

47

.

As

a

result

of

the above-described conduct,

Plaintiff has

suffered,

and continues

to

suffer

great

pain

of

mind

and body, shock, emotional distress,

physical

manifestations of

emotional

distress,

embarrassment,

loss of self-esteem, disgrace, humiliation, and

loss of enjoyment of

life;

has

suffered and continues

to

suffer spiritually; was

prevented

and will continue

to be

prevented

from

performing

Plaintiff

s daily

activities and obtaining

the full enjoyment of

life; has sustained

and

will

continue

to

sustain loss

of

earnings and earning

capacity;

and/or has

incurred

and

will

continue

to incur

expenses

for

medical

and

psychological

treatment, therapy,

and

counseling.

IX.

SIXTH

CAUSE

OT

ICTION.

EAUITABL

48.

Plaintiff

incorporates all

paragraphs

of this Complaint

as

if fully

set

forth herein.

49.

Plaintiff

also

prays

for

equitable

relief from this

Court,

for

non-monetary

redress

and the

protection

of Plaintiff and

other similarly

situated

members of

the

public

and children, as

follows:

POLrcY

CHANGES

50. That

the

LDS

Defendants

change

their current

corporate

policies

regarding

reporting

of

suspected

child

sexual

abuse.

Upon information

and

belief,

the current

policy

as

set

forth in

2010

Handbook

2:

Administering

the

Church, Section

I3.6.18,

which

provides that

[i]f

a

12,

COMPLAINT

FOR

PERSONAL INJURY



49/57

leader becomes

aware of

physical,

sexual or emotional

abuse

of someone

during a Church

activity,

he or she should contact

the bishop immediately.

51.

Instructions

for

bishops

are

provided

rn Handbook

I:17.3.2,

which

provides

in

pertinent

part,

[i]n

the United States and

Canada,

the

Church

has established

a

help line to assist

stake

presidents

and

bishops in cases of abuse ... When

calling

the help

line,

leaders

will be

able

to consult with

professional

counselors and legal specialists

who

can help answer

questions

and

formulate steps to take

...

Leaders can obtain

information

about

local

reporting

requirements

through the help line. Where

reporting is required by law,

the leader encourages

the member to

secure

qualified

legal

advice.

To avoid implicating the Church

in

legal

matters

to which

it

is not

a

party, Church

leaders

should

avoid testifying

in civil

or

criminal

cases

or

other

proceedings

involving

abuse. Handbook

l,

State

Presidents

and

Bishops

2010,

Section

17.3.2.

52. Despite

the

specific instructions to its high level

leaders in

Handbook

1

(which

is

not available

to the

public

at large)

contradictory instructions

are found on the Church's official

news

website.

The

online

article claims

that

[t]he

Church

has a zero-tolerance

policy

when

it

comes to abuse.

... We

cooperate

with

law enforcement

to report and investigate

abuse.

How

the

Church

Approaches

Abuse,

NEwsRooM (accessed

on May lJ,

2016)

http://www.mormonnewsroom.orglafiiclelhow-mornons-approach-abuse.

This

public

statement

contradicts the internal

policies

set forth

in

the

Church's

Handbook

1,

and misleads

members

of

the

Church

about what will

happen after they report sexual

abuse to their

Bishop

or Stake

President

Indeed,

this

language may lead members

to

believe that their Bishop or

Stake President

will report

sexual

abuse

to the

police.

Handbook

1, does not in fact, ever

instruct

these leaders

to report

abuse

to

police.

53.

Specifically,

the

Church's

public

claim that

it

cooperate[s]

with

law enforcement

to

report and

investigate abuse is

contradictedby the instructions

in Handbook

L'17.3.2, which

advises the Church leaders, [t]o avoid implicating

the Church in

legal matters

to which

it is not

a

palty,

fby

not]

testifying in civil

or criminal

cases

or other

proceedings involving

abuse. Id.

54.

Because the

current

policies

do not adequately

protect

children

but

rather aim

to

13.

COMPLAINT

FOR

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50/57

protect

the

LDS

Defendants,

Plaintiff

requests

that

these

policies

be

changed

and include

the

followine:

a.

Where

a

charge

of

sexual abuse

of

a

child

has been made against any

agent,

leader,

or

member

of

the

Church, he

or

she shall

be

immediately removed

from exposure

to children

and

all

appropriate

safeguards shall be

made

to

keep

him or

her away

from

children

pending

investigation.

b.

Whenever any

leader or member

in the Church

has reasonable

suspicion of

child sexual abuse, whether the abuse happened

during

a

Church activity or

not, this

leader

or

member

shall

report the abuse first to the

police

and

child

protective

services.

c.

Every

Church

leader shall be

a

mandatory

reporter

of

child

sexual

abuse,

regardless

of

whether mandatory reporting

is required

by

law.

d.

That the

LDS

defendants must

bring

its

publicized

policies on

abuse

into

conformity with

its Handbool


51/57

X.

SEVENTH CAUSE OF ACTION

-

COMMON

LAW

NUISANCE

AND REQUEST FOR INJUNCTIVE

RELIEF

55.

Plaintiff

incorporates all

paragraphs

of this Complaint

as

if

fully set

forth

herein.

56.

As

reflected

in

its

corporate

policies,

the

LDS

Defendants continue

to engage

in

efforts

to:

1) conceal

from

the

general

public,

from

police

and

applicable child

protective

services,

instances of child

sexual

abuse and,

by

extension, the

identity

of child molesters,

by failing

to

instruct

its

members

and

leaders to

report child

sex

abuse to appropriate

criminal

and civil

authorities; 2)

protect

its image and not children

by

instructing

its members

and

lower

level leaders

to report child

sexual

abuse to Bishops and/or

Stake

Presidents;

then instruct

these high level

leaders to

call

a

Church

help

line

to

consult

with

legal

and

other

professionals

instead of calling

the

police.

In

fact, the current

policy

specifically

commands

...

To

avoid implicating

the

Church

in legal matters to which it is not aparty,

Church

leaders should avoid

testifying in

civil

or

criminal

cases

or

other

proceedings

involving abuse.

Handbook I,

State

Presidents

and Bishops

2010,

Section

17.3.2.

57.

The conduct

and

concealment

by

the

LDS Defendants

has

knowingly and/or

recklessly created

or maintained

a

condition which

unreasonably endangers

the safety

and

health

of

a considerable number

of

persons,

including,

but

not

limited

to, children and residents of

the

Navajo Nation who

live

where Defendants

agents live.

Defendants'

failure to have

proper policies

and

procedures

that direct its members to

report

child sexual

abuse

to

proper

authorities

has

knowingly

and/or recklessly

endangered

the safety

and health of

people

by

allowing

child

molesters to avoid

prosecution

and remain living freely in unsuspected

communities. These

child

molesters, known to agents of

the

Defendants,

but

not to the

public,

pose

a threat

of

additional

abuse

to

children.

58.

The unreasonable,

knowing

and

reckless conduct

by

Defendants

has

specifically

been

injurious

to Plaintiff s health

in

that

Plaintiff

has experienced

mental and emotional

distress

as

a

result

of Defendants'

negligence and/or concealment;

that

Plaintiff

has

not

been

able

to

help

other

children from being molested because

of Defendants'

ongoing

corporate

policies

that

protect

I5.

COMPLAINT

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52/57

Defendants

and

child

molesters

but

expose

children.

59.

The continuing

public

nuisance

created by

Defendants

was,

and

continues

to be,

the

proximate

cause of damages to

the

general

public

within

the Navajo

Nation and of Plaintiff s

injuries and

damages as alleged.

60.

In

doing the aforementioned

acts,

the

LDS

Defendants

have acted

unreasonably by

knowingly

and/or

recklessly

creating

or

maintaining

a

condition

which endangers

the safety or

health

of a considerable

number of

persons

within the Navajo Nation,

and

with

conscious

disregard

for Plaintiff

s rights.

61.

As

a result

of

the above-described conduct.

Plaintiff

has suffered the

iniuries and

damases

described

above.

XI.

EIGHTH

CAUSE

OF ACTION-NAVAJO

COMMON

LAW

62.

Plaintiff

incorporates all

paragraphs

of this Complaint

as

if fully

set

forth herein.

63.

Dind bi beenahazanni

(Navajo

Common

Law)

consists

of

custom

and usages

of

the

Navajo

people.

64.

Navajo concept of

K'e

helps frame the Navajo

perception

of moral

right and

of

due

process

rights.

65.

A basic Navajo Common Law is

that

one

who

is

found

responsible

for inflicting

harm on another

person

must

pay

the

victim

for the harm to restore

harmony.

66.

Plaintiff BN, as

outlined

above,

suffered

harm

at

the

hands

of

the Defendants under

Navajo Common

Law

and must be made whole

by

the Defendants

in

order

to restore harmony in

her

life.

RELIEF REOUESTED,

RESTORATION

OF

NAVAJO

CULTURE,

AND

DAMAGES

67.

For approximately

50

years

the

LPP removed

thousands of

Navajo

children frorn

the Navajo Nation and frorn their

parents

and

other

family

members in an

attempt

to assimilate

thern

into

white

Monnon culture.

While this LPP

may have been

well-intentioned

by

Defendants

because

of

tlieir

own religious

and

cultural

reasons,

the social and

cultural

harm

to

the Navajo

16.

COMPLAINT

FOR

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53/57

Nation

and its

people

must

be

addressed.

In

addition to

the social

injustice

and harm occasioned

by removing

thousands

of

children from

their

parents,

family

and home, the culture of the Navajo

Nation

has been

irreparably

hamred

by

the Defendants' continuous

and

systematic assimilation

effiorts.

68.

Therefore,

in

an efforl

to apologize for harms caused, and

to

show a

desire to restore

the

Navajo

culture that

this

program

sought to remove from its

participants,

the Defendants should

be ordered to:

a. Within thirty

(30)

days aflel

entry

of .Tudgment,

the

LDS

Defendants

send

Ietters

of

apology

to

Plaintiff. Letters

of

apology will

state

that Plaintiff was not at

fault

for

the

abuse

and

that Defendants

take

responsibility for

the

abuse.

b. That

the

LDS

Defendants write a

letter

of

apology

to

the Navajo Nation

Museum

in Window

Rock, Arizona,

for harms caused to the

people

and culture by

the

LPP.

c. That

the

LDS Delbridants establish

a task

force

that will

work

with

the

Navajo

Nation

Government in enhancing

and

restoring Navajo culture.

That this task

force design

and implement a

packet

to

be distributed

at

chapter

houses

explaining

where

individuals

can

seek

help

for

the

Navajo Tribe

to restore harmonv in their

lives.

ii.

That the

LDS

Defendants fund

this task force to implement

programs

for individuals

abused while

participants

in LLP that

will restore

harmony

in their lives

using both traditional Navajo healing methods and medical services;

if

needed.

WHEREFORE,

Plaintiff would

also

seek damages;

costs;

interest;

the

equitable

relief

described above

and

statutory/civil

penalties

according to law.

Plaintiff prays

for

such

other relief

as

the

court deems

appropriate and

just.

DATED

tnis)4av of

17.

COMPLAINT

FOR

PERSONAL INJURY

,2076



54/57

Respectfully

KEELER

&

KEELER.

LLP

108 E. Aztec

Ave.

Gallup,

NM

87301

Phone:

(505)722-5608

Fax:

(505)

722-5614

CERTIFICATE

OF

GOOD

STANDING

Comes

now

the

undersigned

and

hereby

certifies to

the Court that

he

is

a

member

in

good

standing of the Navajo

Nation

Bar

Association.

18.

COMPLAINT

FOR

PERSONAL INJURY



55/57

EXHIBIT C



56/57


57/57


Documents

LDS Church motion for injunction