Experts say lawsuit unlikely with apology to Wiyot Tribe; Eureka mayor says city and council worried about liability issues

Legal experts said Wednesday there is little legal basis to believe that the city of Eureka would have faced a lawsuit if council members had voted to send the first version of a letter from Mayor Frank Jager to the Wiyot Tribe formally apologizing for the 1860 massacre on Indian Island.

"Frankly, I can't imagine any legitimate lawsuit being filed," First Amendment Coalition Executive Director Peter Scheer said. "Even if the mayor of a small town were to claim that the city was in fact responsible for what happened in the 19th century.

"I can't imagine anything that a mayor would say that would make such a lawsuit a meritorious lawsuit," Scheer added. "So, it strikes me that it's not necessary and a bit silly to retract this letter and to reissue it in the language of lawyers."

Terry Francke, of CalAware, a center for public forum rights, agreed.

"I see no basis for litigation of any kind," Francke wrote in an email to the Times-Standard. "The first letter's statement that 'citizens from Eureka participated' is either a historical fact or not, but even if completely false, no one alive then or now would have standing to sue."

Members of the Wiyot Tribe declined to comment.

During a council meeting on Tuesday, the council voted unanimously to send a second version of the letter, which omits the words "formal apology" and doesn't specify who killed up to 200 sleeping tribe members 154 years ago. A copy of the first draft was made public on Monday before being reviewed by the city attorney.

"Well, if I had to do it over again, I wouldn't have released anything until we had a final draft," Jager said. "That was a mistake on my part, probably. I'm a little disappointed about it, but sometimes you do things that you wish you hadn't done."

Scheer said it is unusual for the mayor to release a draft before it is reviewed by a city attorney.

"The typical procedure would be for it to be vetted by the lawyers and then rewritten by the lawyers to remove any worrisome language," he said. "So the only version that the public ever sees is the final one that has been edited by lawyers with a view to minimizing any liability risks. That's why most documents of this kind read like they're written by lawyers and bureaucrats -- because ultimately, they are."

Concerns were raised when council members met individually with interim City Manager Mike Knight to discuss Tuesday's agenda before the meeting, according to Jager.

"It was a liability issue," Jager said. "That's what it really boiled down to -- a possible liability issue."

Jager and council members Marian Brady, Melinda Ciarabellini and Mike Newman said they had not received calls from constituents regarding the issue by Wednesday afternoon. Councilman Chet Albin said he received a call from one person asking a clarification question.

"I'm just sorry we had an issue that should have been a straightforward apology, and ended up being an issue over changing a letter," Jager said. "We lost sight of what we were really intending to do there. It's my fault."

Lorna Rodriguez can be reached at 441-0506 or Follow her on Twitter @LornaARodriguez.