LDS Church Motion For Injunction

Case 2:16-cv-00453-RJS-BCW Document 8 Filed 06/03/16 Page 1 of 17
David J. Jordan (1751)

David J. Williams (9186)
STOEL RIVES LLP
201 S Main Street, Suite 1100
Salt 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 THE
PRESIDENT OF THE CHURCH OF
JESUS CHRIST OF LATTER-DAY
SAINTS, a Utah corporation; LDS
FAMILY SERVICES
Plaintiffs
AMENDED MOTION FOR

TEMPORARY RESTRAINING
ORDER/PRELIMINARY INJUNCTION
Civil No. 2:16-cv-00453-RJS
Judge Robert J. Shelby
v.
RJ MM, and BN, individuals
Defendants.
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.
86539368.2 0056812-00002
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).
86539368.2 0056812-00002
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 BN 1, 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.
86539368.2 0056812-00002
3.
In an attempt to buttress their assertion of jurisdiction, Doe Defendants allege that
certain conduct occurred on the reservation:

a. The decision to remove Plaintiffs from their families was made by case
workers and/or employees and/or agents of Defendants while on the Navajo
Nation. Ex. A at 12; Ex. B at 11;
b. On two occasions, once at a church and once at his home, RJ disclosed the
abuse to . . . . an employee of LDS Social Services. Ex. A at 17;
c. The failure to warn Plaintiffs and their families, the failure to disclose or
report the sexual abuse to Plaintiffs parents, police, or to child protective
services occurred within the Navajo Nation. Ex. A at 43; Ex. B at 37.
4.
The reality is different. The ISPP was administered by LDS Social Services,
(now known as LDS Family Services). Tribal members who wished to participate in the
program did so voluntarily with the agreement of their families. LDS Social Services maintained
an office in Cedar City, Utah with regional responsibility for the ISPP, including working with
members of the Navajo Nation. Decisions regarding the placement of participating tribal
members from the part of the reservation where Doe Defendants lived were made by LDS Social
Services employees operating from their offices in Cedar City and Salt Lake City, with input
from the ecclesiastical leaders of the host families where the tribal members were placed. See
Declaration of Roger Van Komen (attached hereto as Ex. C) at 4.
5.
Doe Defendants seek monetary damages and injunctive relief requiring the
Church Entities to: (1) adopt world-wide policy changes relating to the reporting of abuse,
including policies that are more stringent than state law; (2) waive the right to challenge the
constitutionality of laws on the subject; (3) repair the social and cultural harm allegedly caused
by the ISPP by writing letters of apology to the Navajo Nation; and (4) implement programs(s)
for individuals abused while participants in [the ISPP] that will restore harmony in their lives
86539368.2 0056812-00002
using both traditional Navajo healing methods and medical services; if needed. Ex. A at 5473; 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 Assn, 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
With regard to the preliminary injunction factors, the Tenth Circuit has held that each factor is
not 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 be
somewhat 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
86539368.2 0056812-00002
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 tribes power to impose hunting and fishing regulations on non-Indian
land within the reservation rather than the adjudicatory authority of the tribal courts. Following
the 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 tribes adjudicative jurisdiction:
As to nonmembers, we hold, a tribes 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
86539368.2 0056812-00002
circumstances, may have civil jurisdiction over nonmember conduct within the reservations
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 of
non-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 lands
generally 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 that
conduct 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.
86539368.2 0056812-00002
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) in
their 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 a
tribe and expressed in its customs, traditions, and practices, and is often handed
down orally or by example from one generation to another. The resulting law
applicable 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
86539368.2 0056812-00002
cannot escape the force of the Montana Rulewhich precludes tribal jurisdiction over
nonmembers for conduct beyond the tribes territorial sovereignty. See Plains Commerce Bank,
554 U.S. at 332. 6
In a transparent attempt to manufacture tribal court jurisdiction, Doe Defendants allege
they were damaged by conduct that occurred (or should have occurred) on the reservation. (Fact
3). That alleged conduct, however, is insufficient to create tribal jurisdiction.
First, the Doe Defendants claim that the decisions to remove them from their families and
place them in host homes off the reservation were made by agents of the Church Entities while
on the Navajo Nation. 7 (Id.) But, ISPP participants were not removed from their homes in
the sense that the State might remove a child from its home pursuant to statutory authority or
court order. LDS Social Services, of course, had no such authority. Participation in the ISPP
was a voluntary decision by families who wished to be part of the program. (Fact 4). What is
6
A related issue is before the U.S. Supreme Court in Dollar General Corp. and Dolgencorp,
LLC v. The Mississippi Band of Choctaw Indians, Docket No. 13-1496. There, the Court will
decide whether tribal jurisdiction extends to tort claims against a nonmember company for the
alleged sexual abuse of an Indian teen on reservation lands. Briefing and argument are
completed and a decision is expected by June 30. Once decided, that case may resolve the
jurisdictional issue here by holding that nonmembers are not subject to tribal jurisdiction, even
for wrongs committed on tribal lands. The prospect of such a definitive resolution by the
Supreme Court is reason alone to stay any proceeding in Tribal Court pending the outcome of
Dollar General Corp.
7
Doe Defendants also allege, in conclusory fashion, that the Church Entities conducted
continuous and systematic activities within the Navajo Nation. Ex. A at 6-7; Ex. B at 5-6.
Doe Defendants do not explain what they mean by continuous and systematic activity. While
it is true that there are LDS Churches on the reservation and, at times, missionaries have
proselyted there, these actions do not give the Tribal Court jurisdiction. See, e.g., Atkinson
Trading Co. v. Shirley, 532 U.S. 645, 656 (2001) (A nonmembers consensual relationship in
one area does not trigger tribal civil authority it is not in for a penny, in for a pound.)
86539368.2 0056812-00002
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. RJs 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
86539368.2 0056812-00002
10
suspicions of abuse, dictating the instruction and training given to church leaders, precluding the
Church Entities from challenging the legitimacy of unconstitutional laws, and requiring the
Church Entities to establish and fund programs to restore harmony in the lives of Indians using
traditional Navajo healing methods (which, themselves, could be considered religious in
nature.). (Fact 5.)
With these sweeping demands, Doe Defendants seek not only to extend Tribal Court
jurisdiction far in excess of the regulatory authority of the tribe 8, they also ask the Tribal Court to
infringe on the Church Entities constitutional rights. The First Amendment embodies "a spirit of
freedom for religious organizations, an independence from secular control or manipulation-in short,
power to decide for themselves, free from state interference, matters of church government as well as
those of faith and doctrine." Kedroff v. St. Nicholas Cathedral of the Russian Orthodox Church in
NAm., 344 U.S. 94, 116 (1952); see also Bd. of Church Extension v. Eads, 159 W. Va. 943, 94656 (1976) (The power of the civil courts to interfere with the internal operations of churches is
severely limited by the First Amendment to the Constitution of the United States.") Courts and
legal scholars refer to this principle as the "church autonomy doctrine." That doctrine precludes
civil courts from becoming entangled in '"a matter which concerns ... church discipline,
ecclesiastical government, or the conformity of the members of the church to the standard of
morals required of them."' Serbian E. Orthodox Diocese for the U.S. & Can. v. Milivojevich, 426
U.S. 696, 713-14 (1976) (citation omitted).
See Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997) (a tribes adjudicative jurisdiction
does not exceed its legislative jurisdiction.)
86539368.2 0056812-00002
11
The church autonomy doctrine is a corollary of the Constitution's separation of church

and statea 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 Commn, 514 U.S. 334, 346 (1995) (political
speech).
Even if jurisdiction in the Tribal Court were a close questionand it is notDoe
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, Montanas 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.
86539368.2 0056812-00002
12
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 & Dunlevy640 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 Tribes
inherent sovereign authority.)
86539368.2 0056812-00002
13
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,
86539368.2 0056812-00002
14
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 plaintiffs 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
86539368.2 0056812-00002
15
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.
86539368.2 0056812-00002
16
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
86539368.2 0056812-00002
17
Case 2:16-cv-00453-RJS-BCW Document 8-1 Filed 06/03/16 Page 1 of 18
EXHIBIT A
EXHIBIT B
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,
Plaintifl
case No.
nB_C-r' -1
,l
Lf
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,
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.
l.
JURISDJCTIqN AND VENUE
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
I.
of the Defendants described herein threatens the health, welfare and cultural
COMPLAINTFOR PERSONAL INJURY
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
throughout the complaint as the "LDS Defendants"
2.
COMPLAINT FOR PERSONAL INJURY
will be referred to collectively
III. RELEVANT FACTS APPLICABLE
8.
TO PLAINTIFF
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-loolor-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.
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
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
into whose homes Plaintiffs were placed, were the employees and/or agents
4.
of the LDS
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
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
if
didn't have a hymen. This term was unfamiliar to BN at the time. He then went on to ask her
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
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.
incurred and continues to incur expenses for medical and psychological treatment, therapy, and
counselins.
IV. FIRST CAUSE
OF ACTION
CHILDHOOD SEXIJAL ABUSE
20.
21.
Plaintiffs incorporate all paragraphs of this Complaint as if fully set forth herein.
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,
prospective LDS members, current LDS members, their families, victims, and the public.
25.
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
life; has sustained and will continue to sustain loss of eamings and earning capacity; and/or have
incurred and will continue to incur expenses for medical and psychological treatment, therapy, and
counselins.
V. SECOND
CAUSE OF ACTION
ASSAULT AND BATTERY
26.
27.
Plaintiff incorporates all paragraphs of this Complaint as if fully set forth herein.
From approximately, 1965-1972,the LDS Defendants' employees, servants and/or
agents engaged in unpermitted, harmful and offensive acts in violation of Navajo Nation
law. This
includes, but is not limited to, removing Plaintiff from the Navajo Nation and placing her into
homes and/or subjecting her to health care providers where they knew or should have known that
Plaintiff was at an increased risk of being sexually abused. The decision to remove Plaintiff from
the Navajo Nation and place her in dangerous situations as described above occurred at least in
part, within the Navajo Nation.
28.
The LDS Defendants aided the sexual abuse of Plaintiff by failing to
appropriate action
to prevent fuither abuse from occurring
take
despite having either actual or
constructive notice that Plaintiff was being abused while participating in the LPP. The LDS
Defendants are directly liable for assault and battery from each instance of abuse as an accessory
to the assault and battery.
29.
Said conduct was undertaken while the abusers, or those who negligently allowed
the abuse to take place, were employees, servants and/or agents of the LDS Defendants, while in
the course and scope of employment/agency with the LDS Defendants making the LDS
8.
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.
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
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.
34.
Plaintiff incorporates all paragraphs of this Complaint as if fully set forth herein.
The LDS Defendants had a duty to protect the minor Plaintiff when Plaintiff was
entrusted to their care by
9.
Plaintiff s parents. Plaintiff s care, welfare, and/or physical custody
was
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
36.
family members.
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
38.
within the LPP also occurred within the Navajo Nation.
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.
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.
40.
Plaintiff incorporates all paragraphs of this Complaint
as
if fully
set forth herein.
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.
I.
will continue to be prevented
and
will continue to sustain
loss of earnings and earning capacity; and/or has incurred and will
VIII. FIFTH CAUSE
OF ACTION
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
44.
45.
as
if fully
set forth herein.
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
will continue to
be prevented
and
will continue to sustain
loss of earnings and earning capacity; and/or has incurred and will
IX. SIXTH CAUSE OT ICTION. EAUITABL
48.
49.
as
if fully
set forth herein.
Plaintiff also prays for equitable relief from this Court, for non-monetary
and the protection of
redress
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
12,
"[i]f
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
52.
l,
State Presidents and Bishops 2010, Section 17.3.2.
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,

http://www.mormonnewsroom.orglafiiclelhow-mornons-approach-abuse.
2016)
This public statement
contradicts the internal policies set forth in the Church's Handbook 1, and misleads members
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
sexual abuse to the
of
will report
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
palty, fby not] testifying in civil or criminal cases or other proceedings involving abuse." Id.
54.
13.
Because the current policies do not adequately protect children but rather aim to
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<s, eliminating any contradictions, and make its Handbooks
available to the public.
e.
Instead
of directing its leaders to not cooperate with civil or criminal
authorities (if the Church could in any way be implicated) in situations involving abuse,
there shall be an affirmative statement in both Handbook 1 and Handbook 2 that leaders
and members shall cooperate with civil and criminal authorities in cases involving child
sexual abuse; this includes truthfully testiffing at depositions, hearings, trials and other
proceedings, regardless of whether such testimony would implicate the Church or not.
f.
That the LDS Defendants never seek to direct, pay, or hire any agent or
employee or third party to retract, oppose, or challenge the constitutionality or legitimacy
of any reform of a civil or criminal statute of limitations, mandatory child abuse reporting
clergy exemptions, or repeal of the clergy-penitent privilege or other laws which serve to
shield child sexual abusers from investigation, apprehension, prosecution, and conviction
in Arizona or similar legislation or law in any other state or jurisdiction;
14.
X. SEVENTH
CAUSE OF ACTION - COMMON LAW NUISANCE

AND REQUEST FOR INJUNCTIVE RELIEF
55.
56.
Plaintiff incorporates all paragraphs of this Complaint as if fully
set forth herein.
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
knowingly and/or recklessly endangered the safety and health

molesters to avoid prosecution and remain
of people by allowing
living freely in unsuspected communities.
has
child
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
as a result
Plaintiff
s health
in that Plaintiff has experienced mental and emotional distress
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.
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
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
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.
63.
Plaintiff incorporates all paragraphs of this Complaint as if fully
set forth herein.
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
16.
of tlieir own religious and cultural reasons, the social and cultural harm to the Navajo
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.
Ietters
Within thirty (30) days aflel entry of
.Tudgment, the
LDS Defendants send
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
DATED
17.
tnis)4av
as the
of
court deems appropriate and just.
,2076
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.
EXHIBIT C

LDS Church Motion For Injunction

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LDS Church Motion For Injunction

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

David J. Jordan (1751)

AMENDED MOTION FOR

STATEMENT OF RELIEF SOUGHT AND GROUNDS THEREFOR

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

This Motion is made on the following grounds:

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

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In an attempt to buttress their assertion of jurisdiction, Doe Defendants allege that

certain conduct occurred on the reservation:

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THE CHURCH ENTITIES WILL PREVAIL ON THE MERITS

Tribal Courts Have Strictly Limited Jurisdiction Over Nonmembers

ground for litigation and thus for more deliberate investigation.

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The Navajo Tribal Court Lacks Jurisdiction Here

Tribal jurisdiction does not extend to tort claims arising from

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Case 2:16-cv-00453-RJS-BCW Document 8 Filed 06/03/16 Page 10 of 17

Any doubts should be resolved against tribal jurisdiction because

Case 2:16-cv-00453-RJS-BCW Document 8 Filed 06/03/16 Page 11 of 17

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

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Exhaustion In Tribal Court Is Not Required

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THE CHURCH ENTITIES WILL SUFFER IRREPARABLE HARM IF

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THE BALANCE OF HARMS SUPPORTS ENJOINING THE

THE PUBLIC INTEREST WILL NOT BE HARMED BY ENJOINING

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

/s/ David J. Jordan

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Case 2:16-cv-00453-RJS-BCW Document 8-2 Filed 06/03/16 Page 1 of 19

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THE CORPORATION OF THE PRESIDENT

JURISDJCTIqN AND VENUE

maintained continuous and systematic contacts with the Navajo Nation.

because the conduct

COMPLAINTFOR PERSONAL INJURY

Case 2:16-cv-00453-RJS-BCW Document 8-2 Filed 06/03/16 Page 3 of 19

well-being of the Navajo Nation.