May 2014 - Page 8 of 18

Police investigating after Marysville teen is shot in neck

Posted on May 18, 2014 at 11:29 AM

Updated yesterday at 11:47 AM

A 17-year-old boy was critically injured in a shooting in Marysville early Sunday morning.

Police say the shooting occurred at an apartment in east Marysville. The victim suffered a gunshot wound to the neck.

Police say they were notified of the shooting by relatives of the victim just after 1 a.m. Sunday.

Detectives are working on piecing the details together but have been hindered by the delay in reporting and witnesses who have not been entirely cooperative, police say.

The victim was airlifted to Harborview Medical Center with life-threatening injuries.

“At this point in the investigation there are a lot of rumors going around about the shooting,” stated Commander Robb Lamoureux. “Detectives are diligently following up on information they are receiving in order to determine what actually happened.”

Investigators are asking for anyone who has information regarding the shooting to contact Detective Bartl at 360-363-8350.

Heavy rain triggers flooding in Marysville neighborhood

By Kara Kostanich Published: May 19, 2014 at 7:36 AM PDT Last Updated: May 19, 2014 at 8:18 AM PDT

Storm, Heavy rains in Marysville cause localized flooding. — Heavy rain flooded residential streets in the Parkview Estates neighborhood. *Photo: KOMO News*

MARYSVILLE, Wash. – A clean-up is under way in Marysville after heavy rain flooded a residential neighborhood there.

The wild weather swept through the Snohomish County community Sunday evening, flooding streets and cars. A National Weather Service spotter reported 1.25 inches of rain fell in just three hours as the storm cell stalled over the area.

Neighbors said the streets looked more like canals as the heavy rains quickly overwhelmed storm drains and began backing up.

The Parkview Estates neighborhood was one of the hardest hit areas.

Get the full storyhere to see more storm photos and what other areas were affected.

Columbia Basin Tribes Applaud New Cooperation With Army Corps

U.S. Fish and Wildlife ServiceThe Pacific lamprey, significant to Columbia Basin tribes, could be helped by the new federal water bill. — U.S. Fish and Wildlife Service
The Pacific lamprey, significant to Columbia Basin tribes, could be helped by the new federal water bill.

Source: Indian Country Today

The Columbia River Inter-Tribal Fish Commission (CRITFC) has come out in favor of the bipartisan congressional conference report on pending legislation that would enable direct cooperation between the Army Corps of Engineers and tribes.

“The Columbia Basin tribes and the Corps have long mutually agreed that acquisition of such authority would substantially advance project expertise and efficiency and allow the Corps to meet its statutory obligations by accessing tribal expertise,” the CRITFC said in a statement, adding that the language in the relevant section, 1031, was “short and simple but will remedy prior inefficiency in projects such as cultural resources protection, water quality monitoring and lamprey passage research.”

Lamprey passage has been an issue for the tribes in the northwestern United States, to whom they are a cultural icon. Dam construction has impeded the fish’s ability to spawn.

Section 1031 “authorizes the Corps of Engineers to carry out water-related planning activities and construct water resource development projects that are located primarily within Indian country or impacts tribal resources,” the conference report stated. “Previous Water Resources Development Acts have authorized individual Tribes to carry out these activities. This section is intended to provide this authority generically so that all Tribes may benefit.”

The commission also gave a hat tip to Oregon Senator Jeff Merkley, calling him “instrumental” in getting the Cooperative Agreement Authority language included in the bill that passed the Senate in 2013. The tribal organization also noted the contributions of House Transportation and Infrastructure Chairman Bill Shuster and Ranking Member Nick Rahall, who “were integral to affirming House commitment to the policy improvements.”

A final vote on the bill is pending.

“We look forward to swift passage of WRRDA in both the House and Senate and look forward to working with the US Army Corps of Engineers to quickly implement this authority,” said CRITFC Executive Director Paul Lumley in the statement.

Thousands of dead fish wash ashore in California

Foul-smelling, silvery blanket covers waters off Marina Del Rey

May 19 2014

Tracy Bloom KTLA.com

Clean up efforts were considered over, but thousands of small dead fish remained in the waters off of Marina Del Rey on Monday morning, two days after they were first discovered.

Scores of dead fish, believed to be mostly anchovies, began washing up in a corner of the marina near Bora Bora Way on Saturday night, creating a foul-smelling, silvery blanket on top of the water.

“It’s horrible. There’s like a million dead anchovies floating around, as well as other fish,” said Lisa Lascody, a resident of the area. “It’s creepy and weird,”

Crews spent Sunday cleaning up, and although carcasses continued to litter the water on Monday, a supervisor with the Los Angeles County Department of Beaches and Harbors said clean up efforts were over.

The supervisor estimated that about 3,000 to 4,000 fish carcasses were removed from the harbor.

The remaining dead fish floating in the water would either get eaten or eventually be pushed out into the ocean, the supervisor added.

It was unclear why exactly the dead fish washed up in the first place, but one marine expert speculates the amount of fish could have sucked the oxygen out of the water, and that could have caused them to die.

“The currents in here… it gets trapped in here, it doesn’t have a good flow. So it’s possible all these anchovies came in here, then all the other fish came in here, and all of that massive load of anchovies…sucked out all of the oxygen in the water. And through that, everything died,” said Eric Martin, the facility director and educational co-director of Roundhouse Aquarium, a marine studies lab in Manhattan Beach that teaches about the ocean and marine life.

The was not the first time numerous dead fish showed up dead in Southern California waters. In March 2011, millions of small fish turned up dead in King Harbor in Redondo Beach, according to the Los Angeles Times.

In that incident, it was believed that the fish used up all the oxygen after swimming into the marine en masse and eventually suffocated, the Times reported.

Frustration grows among Native Americans due their share of $3.4B land-royalty settlement

By MATT VOLZ, Associated Press

HELENA, Montana — Laura Juarez is supposed to receive close to $1,200 as her share of a $3.4 billion settlement among hundreds of thousands of Native Americans whose land-trust royalties were mismanaged by the government for more than a century.

The Bakersfield, California, notary public was going to pool that money with her husband’s share, along with a portion of what was coming to her father’s estate, to send her 17-year-old daughter to a student-ambassador program in Australia.

But the money, which she expected in December, still hasn’t come and her daughter isn’t going on next month’s trip.

The payments have been held up by more than 2,400 appeals by people who were ruled ineligible to participate in the settlement. As the special master appointed to the case goes through those appeals, Juarez and other American Indians are growing increasingly frustrated over what they see as justice delayed.

“It seems as if the Native Americans are being screwed again,” said Juarez, a 39-year-old member of the Comanche nation. “I know several others who have given up on it. It’s created a sour taste in their mouths. We get our hopes up just to have it knocked down.”

The 493,724 beneficiaries identified as of the beginning of May already know how much they are supposed to receive from the settlement — the individual payments range from $850 to nearly $10 million — and many had earmarked those amounts to splurge on big purchases or simply pay their bills.

The delays have resulted in complaints to the claims administrator, an online petition and even a letter from Montana Sens. Jon Tester and John Walsh about a lack of transparency and misinformation regarding the payments.

“This delay is placing a financial burden on Montana families, and forcing many who are expecting payments to take out loans that they are now unable to repay,” the April 3 letter to the settlement’s claims administrator, Garden City Group, said.

Jennifer Keough, Garden City Group’s executive vice president and chief operating officer, did not return a call for comment.

The attorneys representing the plaintiffs in the class-action lawsuit, recognizing the frustration, plan to ask a federal judge this week to allow the distribution to take place before the appeals are finalized.

“The agreement says that no trust administration class payments can be made until all the members are identified,” said David Smith, an attorney for Kilpatrick, Townsend and Stockton LLP. “There are a lot of appeals, and many are extremely lengthy. We want to make sure everybody has a chance to participate in the settlement and it’s not a rush job.”

At issue is the second of two distributions in one of the largest U.S. government settlements in history, prompted by a lawsuit filed in 1996 by Blackfeet elder Elouise Cobell of Montana. Cobell sued the government after realizing that many Indians who owned land held in trust for them by the government lived in poverty with no accounting of the royalties they were due when the Interior Department leased their land for development, exploration or grazing.

The lawsuit claimed the Interior Department mismanaged and squandered billions of dollars that were supposed to go to the landowners since the 1880s, but incomplete and missing records prevented them from determining how much was lost.

It took about 14 years to reach a settlement with the government, then another year for Congress to approve the deal in December 2010. It wasn’t until December 2012 that all the appeals over the settlement were dismissed and the first monetary distributions were mailed.

Those 339,106 beneficiaries, called the historical accounting class, received a flat payment of $1,000 apiece. That was the easy part.

The second round of distributions go to what is called the trust administration class in varying amounts based on a formula that looks at 10 years of the highest earnings in the royalty accounts held by the government, which are called Individual Indian Money trust accounts.

Identifying the people in that second class — which also contains members of the first class — has proven to be a challenge due in part to the Interior Department’s incomplete record-keeping, Smith said. For example, the Interior Department had no records for thousands of people in Oklahoma who had made claims, leading to an extension of the appeals period while they tried to prove their claims by going to the state courts for documentation.

Plus, there were no known addresses for 65,000 people identified as beneficiaries, which Garden City Group has been able to whittle down to about 14,000, Smith said.

The search for those still on the list continues, though it won’t hold up the payments, he said.

That’s little consolation to the beneficiaries who are waiting. Not only are their payments delayed, but their checks are diluted when more class members are added.

In Juarez’s case, she was told last summer she would receive $1,260. As of February, that had been reduced to $1,197 with the addition of more beneficiaries.

“If they’re entitled to that money, that’s great — awesome — but the timing is taking way too long,” Juarez said. “A deadline is a deadline. They are holding up so many people.”

Cherokee veterans gain care options

New agreement links tribal service to VA health system

By Anita Reding, Muskogee Phoenix Staff Writer

Cherokee Nation Secretary of State Chuck Hoskin Jr., left, and Principal Chief Bill John Baker sign the reimbursement agreement Friday. Next to Baker is James Floyd, the director of the Jack C. Montgomery VA Medical Center. Watching from behind are Gayla Stewart, left, the victim witness coordinator for the regional U.S. Attorney’s Office; Dr. Ricky Robinson, the director of the Cherokee Veterans Center; Vickie Hanvey, the Cherokee Nation self-governance administrator; Jacque Secondine Hensley, the Native American liaison for Gov. Mary Fallin; Connie Davis, the executive director of Cherokee Nation Health Services; Tribal Council Speaker Tina Glory-Jordan; Deputy Chief S. Joe Crittenden; and John Alley and Bunner Gray, Indian health liaisons for the VA center.

TAHLEQUAH — Veterans who are members of the Cherokee Nation can now choose from several locations to receive health care.

Cherokee Nation Principal Chief Bill John Baker signed a reimbursement agreement with the U.S. Department of Veterans Affairs on Friday.

The Cherokee Nation is one of several tribes that have contracts with the VA, said James Floyd, director of the Jack C. Montgomery VA Medical Center in Muskogee.

The contract allows the tribe to be reimbursed by the VA for services rendered to Native American veterans using Cherokee Nation health centers for primary care. The contract also allows the Cherokee Nation and the VA to share patient information and charts. The VA will provide medication for veterans.

Now that the contract has been signed with the Cherokee Nation, veterans’ care can be tied to the VA system, Floyd said.

The contract will make it possible for veterans with the Cherokee Nation to receive vital services and not have to travel as far as they have been, said Baker.

“I think it’s a win, win, win for the veterans, for the Cherokee Nation and for the VA hospital,” Baker said.

The agreement with the Cherokee Nation provides health care at W.W. Hastings Hospital and eight clinics. The Cherokee Nation also is planning to build a hospital in Bartlesville, Baker said.

The initial users who can benefit from the contract total 4,500, and that number could easily increase by 1,000, Floyd said.

There are 37,000 users at the Muskogee medical center, and Native Americans are the second highest population group, he said.

“This helps us to grow as a system and to grow from within the tribe as well,” Floyd said.

Some veterans who are members of the Cherokee Nation have not used services at the VA, and this offers them an opportunity to be a part of the VA, he said.

“We are excited to partner with the Cherokee Nation in providing health care to our American Indian veterans,” Floyd said. “This agreement will allow for better coordination of care, allows tribes and IHS (Indian Health Service) to expand care for their users, shortens wait times for medical care and increases access at VA facilities for all veterans.”

Debra Wilson of Briggs is a member of an advisory committee with the VA. Many Native American veterans will be more comfortable receiving medical care at Cherokee Nation facilities, she said.

“This is something we have looked forward to for a really long time,” said Wilson, one of several veterans who witnessed the signing of the agreement.

Don Stroud of Tahlequah said he uses the Cherokee Nation Health System, and the funding that will be provided by the contract will benefit the veterans initially, “but it’s also going to impact the care that’s available for all the patients in the health system.”

“The less money spent on us, the more money available to treat that next little kid that comes in and needs the care, or the next one of our elders that comes in and needs some medication,” he said.

The funds will be there to help them because another source of funding will be available, which will equal things out, he said.

Prehistoric Skeleton in Mexico Is Said to Link Modern Indians to Earliest Americans

By SINDYA N. BHANOOMAY 15, 2014

The New York Times

A diver, Susan Bird, cleaning the skull of a prehistoric teenage girl, recently discovered in an underwater cave in Mexico. Credit Paul Nicklen/National Geographic, via Associated Press

Most geneticists agree that Native Americans are descended from Siberians who crossed into America 26,000 to 18,000 years ago via a land bridge over the Bering Strait. But while genetic analysis of modern Native Americans lends support to this idea, strong fossil evidence has been lacking.

Now a nearly complete skeleton of a prehistoric teenage girl, newly discovered in an underwater cave in the Yucatán Peninsula, establishes a clear link between the ancient and modern peoples, scientists say.

Writing in the journal Science, the researchers report that they analyzed mitochondrial DNA — genetic material passed down through the mother — that was extracted from the skeleton’s wisdom tooth by divers. The analysis reveals that the girl, who lived at least 12,000 years ago, belonged to an Asian-derived genetic lineage seen only in Native Americans.

Though her skull, found intact, is more narrow and angular than those of modern Indians, and her face smaller and her features more protruding, “we know that at least the maternal ancestry is shared,” said an author of the study, James Chatters, a forensic anthropologist with Applied Paleoscience, a company in Bothell, Wash.

The reasons for the differences in skull size and shape are still a mystery, but modern American Indians may have evolved to have broader, larger skulls because of adaptations to different food, social or environmental conditions, Dr. Chatters said.

Angélique Corthals, a forensic anthropologist at the State University of New York at Stony Brook, who was not involved with the study, said the find was “very exciting” because it was a full skeleton.

“That’s really rare,” she continued. “They’ve been able to retrieve so much of the mitochondrial DNA; that’s what makes it monumental.”

The researchers also used radiocarbon dating to approximate the skeleton’s age.

They now hope to retrieve nuclear DNA to determine paternal ancestry and study the skeleton to understand the teenager’s health history, diet and body structure.

But that will have to wait: For now, the skeleton remains in the cave.

“Ultimately we’re going to have to retrieve her,” Dr. Chatters said.

A view of Hoyo Negro, a submerged cave in the eastern Yucatán Peninsula in Mexico where the prehistoric girl's skeleton was discovered. Credit Roberto Chavez Arce, via Science, via Associated Press — A view of Hoyo Negro, a submerged cave in the eastern Yucatán Peninsula in Mexico where the prehistoric girl’s skeleton was discovered. Credit Roberto Chavez Arce, via Science, via Associated Press

Correction: May 16, 2014

An earlier version of a picture caption on the home page for this article misidentified one of the groups of people that scientists say are linked by a prehistoric skeleton. They are modern American Indians and Siberian ancestors who crossed the Bering Strait, not Siberian descendants.

Backyard Safety-NBSM Week 3

By Monica Brown, Tulalip News Writer

Tulalip,WA-The Farmer’s Almanac is predicting a dryer and warmer summer than usual for the northwest area. With the days heating up people will be heading out side to cool off and for that reason week 3 of National Building Safety Month focuses on backyard safety when using decks, pools and outdoor barbeques.

Inspect your deck, swing sets, playhouses or other yard structures to confirm that they are secure and in good shape. Keep either a fire extinguisher or hose on hand when cooking on a BBQ. Most importantly, learn to perform CPR/First Aid. According to a study by the Center for Disease Control, drowning is the leading cause of unintentional injury death worldwide, and the highest rates are among children; reports from 2005 to 2009 show an annual average of 3,880 people died from unintentional drowning in the United States.

CPR/First Aid is a useful skill to know year-round and children as young as 9yrs old can learn to perform CPR effectively. Check with your local fire district, American Red Cross or YMCA for when and where you can attend a CPR/First Aid class.

Another threat found in pools are recreational water illnesses (RWIs), caused by germs and spread in contaminated water that is swallowed, or by simply having contact with contaminated water such as swimming pools. RWIs cause a variety of infections such as gastrointestinal, skin, ear, respiratory, eye, neurologic, and wound infections. The following RWI’s can be passed through pool water; Cryptosporidium (“Crypto”) causes diarrhea, Giardia also causes diarrhea, Hot Tub Rash causes itching and blisters, Legionella causes a type of pneumonia, after using a public pool area be sure to watch for symptoms.

Chlorine does not kill all germs instantly and can take anywhere from minutes to days for the chlorine to kill them. On the other hand, too many chemicals in the pool can cause eye, nose and breathing irritation. Purchase a test kit for your pool and test the water regularly.

National Building Safety Month information can be found at www.iccsafe.org. NBSM is being hosted by the Tulalip Tribes Community Development Department, for handouts, resources or other information please contact Orlando Raez at 360-716-4214.

10 important tips for Backyard Safety

Pool & Deck safety

Make sure all pedestrian gates in the barrier fence for your pool are self-closing and self-latching. Other gates should be padlocked.

Remove all chairs, tables, large toys or other objects that would allow a child to climb up to reach the gate latch or enable the child to climb over the pool isolation fence.

Reaching and throwing aids like poles should be kept on both sides of the pool. These items should remain stationary and not be misplaced through play activities.

All pool and hot tub drains (suction outlets) must have a cover or grate that meets industry standards for suction fittings marked to indicate compliance with ANSI/ASME A112.19.8 2007. Check to see that these covers are not broken or in disrepair, and that they are anchored firmly over the drain openings.

Install a pool alarm to detect accidental or unauthorized entrance into the water. While the alarm provides an immediate warning, it does not substitute for the barrier fences, door alarms and safety covers required by the code.

Install either an automatic or manually operated, approved safety cover to completely block access to water in the pool, spa or hot tub. Never allow anyone to stand or play on a pool cover.

Check for warning signs of an unsafe deck, including loose or wobbly railings or support beams, missing or loose screws that connect a deck to the house, corrosion, rot and cracks.

Grill Safety

Place the barbeque grill away from siding, deck railings and out from under eaves and overhanging branches. It is also unsafe to use grills in a garage, porch or enclosed area that could trap carbon monoxide. Never grill on top of anything that can catch on fire.

When grilling, have a fire extinguisher, a garden hose or at least 4 gallons of water close by in case of a fire.

Keep children away from fires and grills. Establish a safety zone around the grill and instruct the children to remain outside of the zone. A chalk line works great for this purpose. Never leave the grill unattended.

Tribe’s Marina Offers Docks to Cruising Yachters, Waterfront Homes to Seasonal Residents

Courtesy Mosquito Creek MarinaSpirit Trail Ocean Homes at Mosquito Creek — Courtesy Mosquito Creek Marina
Spirit Trail Ocean Homes at Mosquito Creek

Heather Steinberger, ICTMN

Cruising boaters who are making their way between Seattle and Alaska, and recreational boaters who seek an engaging spot to spend time on the water and enjoy a vibrant port of call, invariably find their way to Vancouver, British Columbia. As they peruse their options for overnight, weekly or seasonal dockage, many of them will select Mosquito Creek Marina in North Vancouver or Lynnwood Marina at the International Harbour of Vancouver.

They may not realize that these successful waterfront enterprises are owned and operated by the Squamish Nation, a Coast Salish people whose homelands include the “lower mainland” of British Columbia—North and West Vancouver, Whistler, Howe Sound and its tributaries, Burrard Inlet and English Bay. Today, 60 percent of the 3,600 tribal members live on urban reserves in Vancouver, North and West Vancouver and the municipality of Squamish; their nine major communities stretch from North Vancouver to the northern area of Howe Sound.

Despite their optimal location near a major population center and the waterfront, and the fact that it never officially ceded or surrendered title to its lands, rights to its resources or the power to make decisions within its territories, the Squamish Nation had its hands tied until the second half of the 20th Century.

“Prior to 1960, we were dealing with legislative oppression from the Indian Act,” said Chief Ian Campbell, an intergovernmental relations negotiator and cultural ambassador who is currently in his third term as an elected member of tribal council. He also is the youngest of the 16 hereditary chiefs of the Squamish Nation.

“We weren’t even recognized as citizens until 1956,” he said, “so we had no opportunities for economic development at all.”

In the early 1960s, however, everything changed. The tribe, Campbell said, responded vigorously when given the chance to take charge of its resources. It leased land to various tenants, allowing the development of shopping centers, and in 1963 it began marina operations on tribal land at Mosquito Creek.

The Mosquito Creek Marina, also known simply as “The Creek,” is located between Grouse Mountain and Vancouver, a short boat ride from the Lions Gate Bridge and the Georgia Straight, and 10 minutes from Lonsdale Quay and the SeaBus Terminal with ferries to downtown departing every 15 minutes. It can accommodate 530 boats up to 160 feet in length, and its amenities include electric and water hookups, a fuel dock, a 50-ton Marine Travelift mobile boat hoist, and new laundry, shower and restroom facilities.

Guests also can purchase needed marine supplies, enjoy a meal at the Marina Grill, and take a walk on the new Squamish Nation Waterfront Greenway, also known as the Spirit Trail. The trail links the Mosquito Creek Marina with the city’s Waterfront Park.

Lynnwood Marina, located on the North Vancouver side of the International Harbour of Vancouver, became part of the Squamish Nation’s marine enterprises in the late 1980s.

“Some of our reserve lands were expropriated in the early 1900s, and they were returned to us in 1982,” Campbell explained.

Lynnwood Marina can accommodate 380 boats up to 70 feet in length (no overnight transients; a minimum one-month stay is required), and it offers repair and maintenance services with a 55-ton mobile boat hoist for haul-outs and launches.

The Squamish Nation didn’t stop there. In the last decade, it started building and selling custom boat shed—which can incorporate upstairs apartments to serve as living quarters—and it has added the high-end, floating Spirit Trail Ocean Homes.

“We’ve constructed 40 boat sheds in about eight years, from 40 feet up to 120 feet,” said Donny Mekilok, general manager of the Squamish Nation Marine Group. “We also build our own heavy-duty timber docks in 10- by 40-foot sections, and we do all the mechanical components on site, including water and sewage.

Rendering of boat sheds with living quarters (Courtesy Mosquito Creek Marina)

“The ocean homes are in the second phase of development right now,” he continued. “We’ve sold 28, and they range from $500,000 to $750,000.”

“We were looking for ways to add value,” Campbell noted. “These enterprises gave people an opportunity to invest in our lands and waters.”

According to Mekilok, the marine group added a fifth enterprise in the last 12 months. In November, Transport Canada transferred the New Brighton public dock on Gambier Island to the Squamish Nation. The dock accommodates approximately 30 small vessels, which residents use to travel between the island and the mainland.

“We’re going to rent the dock in its current configuration for two years,” Mekilok said. “Then, we may expand to a full marina with a place for a future yacht club.”

He observed that the Squamish Nation is in an excellent position to provide much-needed services to local and visiting boaters.

“Here in British Columbia, we have some of the best cruising grounds in the world,” Mekilok said. “It’s an important waypoint between Seattle and Alaska, and it’s a huge summertime destination for U.S. boaters.

“Five years ago, we had insane wait lists at the marinas,” he continued. “Even now, after all the economic challenges, we’re full at all of our facilities. To accommodate transients, we make slips available as our renters go out cruising. Then we share the revenue with them.”

The Squamish Nation’s annual powwow is a big local draw, as are Mosquito Creek’s summer solstice party and its Boat Show at the Creek. Now in its 8th year, the show is the largest floating boat show in Canada.

In addition to the Squamish Nation Marine Group, primary employers for tribal members include the band office and Northwest Squamish Forestry. Key sources of revenue for the nation are taxation, leases and Squamish-owned businesses; thanks to the Squamish Valley’s appeal to tourists, these include the marine group, the Capilano River RV Park and the shopping centers whose tenants lease tribal lands.

“Our goal for Squamish-owned businesses is to develop the companies to the point where they can run without subsidization from the Squamish Nation,” Campbell said.

He noted that the marine group is very important to the Squamish Nation, as it provides revenue, job training and employment.

“A percentage of the marine group’s revenue goes to the tribe, and the majority of employees are tribal members,” he said. “Our communities take pride in the fact that we own and operate these businesses. Yes, there’s a lot of pride. And through these enterprises, we demonstrate our environmental concern as well as our interest in economic stimulus and development—good stewardship of our natural resources.”

Federal trial court rejects group libel lawsuit against makers of the movie ‘Out of the Furnace’

By Eugene Volkh | May 15, 2:14 p.m.

The Washington Post

Christian Bale stars in Relativity Media’s “Out of the Furnace.” (Kerry Hayes. © 2012 Relativity Media, All rights reserved.)

“Group libel” lawsuits claiming that a race, ethnic group, religion, and the like was libeled by knowing or reckless falsehoods about them aren’t allowed under modern American libel law. But the matter is different when the group is small enough; in the words of the Restatement (Second) of Torts,

One who publishes defamatory matter concerning a group or class of persons is subject to liability to an individual member of it if, but only if,

(a) the group or class is so small that the matter can reasonably be understood to refer to the member, or

(b) the circumstances of publication reasonably give rise to the conclusion that there is particular reference to the member….

Comment a. As a general rule no action lies for the publication of defamatory words concerning a large group or class of persons. Unless the group itself is an unincorporated association, as to which see § 562, it cannot maintain the action; and no individual member of the group can recover for such broad and general defamation. The words are not reasonably understood to have any personal application to any individual unless there are circumstances that give them such an application. The extreme example is the statement of David that “All men are liars,” which in a sense defames all mankind and yet could not reasonably be taken to have any personal reference to each member of the human race. On the same basis, the statement that “All lawyers are shysters,” or that all of a great many persons engaged in a particular trade or business or those of a particular race or creed are dishonest cannot ordinarily be taken to have personal reference to any of the class.

Illustrations:

1. A newspaper publishes the statement that the “Stivers clan” have been engaged for years in a feud in the course of which many murders have been committed. There are in the community a great many interrelated families named Stivers. Neither the entire group nor any member of it can recover for defamation.

2. A newspaper publishes the statement that the officials of a labor organization are engaged in subversive activities. There are 162 officials. Neither the entire group nor any one of them can recover for defamation.

b. When the group or class defamed is sufficiently small, the words may reasonably be understood to have personal reference and application to any member of it, so that he is defamed as an individual. In this case he can recover for defamation. Thus the statement that “That jury was bribed” may reasonably be understood to mean that each of the twelve jurymen has accepted a bribe. It is not possible to set definite limits as to the size of the group or class, but the cases in which recovery has been allowed usually have involved numbers of 25 or fewer.

Illustration:

3. A newspaper publishes a statement that the officers of a corporation have embezzled its funds. There are only four officers. Each of them can be found to be defamed.

The core issue is thus whether a statement about a group is seen as a statement “of and concerning” the particular plaintiff — the general view is that statements about large groups aren’t so seen (because listeners recognize that generalizations about a group often don’t apply to individual members), but statements about small groups might be so seen.

This is the very issue that came up in Wednesday’s federal trial court decision inDegroat v. Cooper (D.N.J. May 14, 2014). Eriq Gardner (Hollywood Reporter) has the background:

A New Jersey federal judge has dismissed a defamation lawsuit over Out of the Furnace filed last December by 17 members of the Ramapough Lunaape Nation, a Native American tribe located mostly in the mid-Atlantic region of the U.S.

The film starred Christian Bale tracking his younger brother, played by Casey Affleck, who has been lured into a ruthless crime ring led by the evil character of Harlan De Groat, played by Woody Harrelson. The group is identified as the Jackson Whites and described as a community of “inbreds.” …

Note that the movie didn’t just refer to the group, but to at least one common surname (De Groat) within the group. Still, the court held, this wasn’t enough to make the statements “of and concerning” the plaintiffs:

Plaintiffs plead only that some of them share the same surname, but not first name, as two of the characters in the movie. They also contend that they are Ramapoughs, as are the characters in the movie, and that many of them live in the same region as the Ramapoughs. These allegations do not suffice to show that the alleged defamatory statements are “of and concerning” these Plaintiffs. In fact, Plaintiffs concede in their brief that the statements they complain of do not refer to them: “It is acknowledged that these Plaintiffs are not, specifically, characters in the movie ….”

There is of course, another issue here: The film wasn’t a documentary, and reasonable viewers would perceive it as a work of fiction. And while sometimes a work that is obviously “roman à clef” — i.e., is perceived by the public as making claims about real events, though under a fictionalized veneer or with some fictional components — might be seen as libelous, that would be a pretty high bar to pass, given viewers’ understanding that movies that aren’t sold as documentaries are generally about storytelling, not about factual accuracy (even when they are to some extent based on real surroundings). Still, the court managed to largely avoid this issue by simply concluding that the movie couldn’t be seen as making factual claims of and concerning any particular individual, whether or not it would be seen as making factual claims about the large group.