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Indian Law Section
TheAdvocateOfficial Publicationof the Idaho State BarVolume 54, No. 8August 2011
2 The Advocate
!"#$%&"'(%)*+#,-%./0#%/%(#/*%#$-/-#%,##12!"#$%&'%()*#+%')%,#-+&$./%0#1,#-+&$./ )0%234&$.%()**#0(&-,%+5-(#/%&'6+%$)'%73+'%-2)3'%'"#%()+'%5#0%+83-0#%9))':%;3$('&)$-,&'4/%,)(-'&)$/%)5#0-'&)$-,%()+'+/%9,))0%5,-'#%#99&(&#$(4/%5"4+&(-,%5,-$'%<=>?/%'0&5,#%$#'%9##+%-$@%(300#$'%A-(-$(4%0-'#+%-,,%#99#('%'"#%#83-'&)$:%<)B%@)%4)3%"#,5%4)30%(,&#$'%*-C#%'"#%2#+'%5)++&2,#%@#-,D
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The Advocate
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BOISE 208.345.3343 | COEUR D’ALENE 208.667.7993 | SPOKANE 509.353.3898SEATTLE 206.667.8989 | BELLEVUE 425.709.5500 | PORTLAND 503.778.7077
4 The Advocate
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The Advocate
Feature ArticlesSection WelcomeBrian P. McClatchey
Tribal Sovereignty, Jurisdiction, Zoning, and Environmental RegulationsCharissa A. Eichman
A Jury of Their Peers: Can a Native American Defendant Be Tried by a Jury of His Peers in the United States?Jason Brown
The Native Law Program at the University of Idaho: A Third Year of SuccessAngelique EagleWoman
The Tribal Law and Order Act of 2010: Toward Safe Tribal CommunitiesBrian P. McClatchey
36
38
ColumnsReed W. Larsen
Diane K. Minnich
News and Notices
49
On the Cover-
Section Sponsor The Advocate
Cover art sought
Editors
Letters to the EditorThe Advocate -
Protections Available to Victims of Domestic Violence: No Contact Orders, Civil Protection Orders, and Other OptionsAnnie Pelletier Kerrick
Title VII Retaliation against Third Parties under Thompson v. North American Stainless, LPMark DeMeester
E-Editing: Time Saving TipsTenielle Fordyce-Ruff
Advocates in ActionStephen A. Stokes
2011 Distinguished Lawyers
Federal Prisoner Rights Case Gets Pro Bono Firepower: James Huegli Finds Meaning Helping Inmates, Evading Pirates and Giving BackDan Black
6 The Advocate
AdvocateMANAGING EDITORDan BlackEXECUTIVE DIRECTORDiane K. MinnichEDITORIALADVISORY BOARDJohn N. Zarian, Chairperson Sara M. Berry Thomas H. ClarkTenielle Fordyce-RuffDaniel J. Gordon Brian P. KaneGene A. PettyScott E. Randolph Jennifer M. SchindeleHon. Kathryn A. SticklenBrent T. WilsonCommissioner LiaisonMolly O’Leary
BOARD OF COMMISSIONERSReed W. Larsen, PresidentPaul W. Daugharty, CommissionerMolly O’Leary, CommissionerWilliam H. Wellman, CommissionerRobert T. Wetherell, Commissioner
ADVOCATE STAFFDan BlackManaging [email protected] StrauserSenior Production EditorAdvertising [email protected] GrazianoMember Services AssistantLRS [email protected]/isb(208) 334-4500
Copyright© 2011 The Idaho State Bar. The editorial contents of this publication are the opinions of the authors and do not necessarily represent or
the Idaho State Bar. The Advocate has the authority to edit material
submitted for publication. Appearance of an advertisement in The Advocate does not constitute a recommendation or endorsement by The Advocate or the Idaho State Bar of the goods or services offered therein. The Idaho State Bar Editorial Advisory Board reserves the right to reject advertising determined not to be in keeping with the publication’s standards.The Advocate (ISSN 05154987) is published the following months: January, February, March, April, May, June, August, September, October, November, and December by the Idaho State Bar, 525 W. Jefferson Street, Boise, Idaho 83702. Subscriptions: Idaho State Bar members receive The Advocate as part of their annual dues payment. Nonmember subscriptions are $45 per year. Periodicals postage paid at Boise, Idaho.POSTMASTER: Send address changes to:The AdvocateP.O. Box 895Boise, Idaho 83701
The
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The Advocate
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8 The Advocate
August
CLE Idaho: Lunch and Replay – Employment Law and Practitioner Ethics
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The Advocate
PRESIDENT’S MESSAGE
HAVE I DONE ANY GOOD IN THE WORLD TODAY
Reed W. LarsenPresident, Idaho State Bar Board of Commissioners
Have I Done Any Good?
Have I done any good in the world today?Have I helped anyone in need?Have I cheered up the sad and made someone feel glad?If not, I have failed indeed.Has anyone’s burden been lighter todayBecause I was willing to share?Have the sick and the weary been helped on their way?When they needed my help was I there?
Then wake up and do something moreThan dream of your mansion above.Doing good is a pleasure, a joy beyond measure,A blessing of duty and love.
There are chances for work all around just now,Opportunities right in our way.Do not let them pass by, saying, “Sometime I’ll try,”But go and do something today.’Tis noble of man to work and to give;Love’s labor has merit alone.Only he who does something helps others to live.To God each good work will be known.
Text and music: Will L. Thompson, 1847–1909
Have I Done Any Good?
Reed W. Larsen
The Advocate
If we just keep working something good eventually happens. It is never
only after the last.
About the AuthorReed W. Larsen is a founding part-
ner at Cooper & Larsen in Pocatello. His practice includes auto accident cases, re-
petitive trauma injuries in the workplace, Federal Employer Liability Act (FELA) litigation, railroad crossing cases, per-sonal injury insurance defense, agricul-tural litigation and Indian law.
He is a 1985 graduate from the Uni-versity of Idaho College of Law. He has served as a Commissioner for the Sixth and Seventh Judicial Districts since 2009 and is currently serving a year term as President of the Idaho State Bar Board of Commissioners.
Reed is married to Linda M. Larsen and together they have three children.
KEEPING UP WITH CASE LAW?
ISCR/ICAR – Idaho Supreme Court Report / Idaho Court of Appeals Report
IBCR – Idaho Bankruptcy Court Report
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Let the Lawyer Referral Service send clients your way.
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To learn how to sign-up for LRS contact Kyme Graziano at (208) 334-4500.
The Advocate
NEWS BRIEFS
Hon. Linda Copple Trout recognized
Justice Roger S. Burdick to Serve as Chief Justice of Idaho Supreme Court
Otter appoints Norton to replace Boise judge
Eric White earns prestigious history award
Hon. Linda Copple Trout
Chief Justice Roger S. Burdick Lynn Graham Norton
The Advocate
NEWS BRIEFS
Washington State University study suggests traditional blood spatter analysis may lead to false results
State of Idaho v. Rodgers
Id
Rodgers
Locating the Source of Projectile Fluid Droplets
American Journal of Physics
Bonner County Courthouse to close its doors - temporarily
Law Foundation Releases 2011 Annual Report
Idaho Volunteers Lawyers Program
Law Related Education
The IOLTA Grant Program
Continuing Legal Education
Eric White
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ADR SERVICES
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The Advocate
EXECUTIVE DIRECTOR’S REPORT
2011 Resolution ProcessDiane K. MinnichExecutive Director, Idaho State Bar
2011 District Bar Association Resolution MeetingsDistrict Date/Time City
Thank you
Diane K. Minnich
James C. Meservy Deborah A. Ferguson
The Advocate
MESSAGE FROM THE INDIAN LAW SECTION
Brian P. McClatchey Coeur d’Alene Casino Resort Hotel
Brian P. McClatchey
r
About the AuthorBrian P. McClatchey is the In-House
Attorney at the Coeur d’Alene Casino & Resort. A graduate of the University of Washington and the University of Michi-gan Law School, Brian’s practice encom-passes real property, employment, envi-ronmental and construction law matters.
Indian Law SectionChairperson
Vice Chairperson
Secretary/Treasurer
877 Main Street Suite 1000Boise, ID 83702
Phone: 208.388.4836Fax: [email protected] www.hawleytroxell.com
Mr. Clark
Mr. Clark
Discovery Master
Facilitation
Merlyn W. Clark
The Advocate
TRIBAL SOVEREIGNTY, JURISDICTION, ZONING, AND ENVIRONMENTAL REGULATIONS
Charissa A. Eichman National Wildlife Federation
When answering questions related
government interests.
Zoning and environmental regulations
Brendale v. Confederated Tribes and Bands of Yakima Indian Nation 2 City of Albuquerque v. Browner, New Mexico v. Mescalero Apache Tribe. 4
Brendale: determining the tribal interest
Brendale
Browner: tribe can establish more stringent standards
Browner
r
6
Mescalero Apache: wildlife as a tribal resource
Mescalero Apache
Courts: a balanced approach to sovereignty
Charissa A. Eichman
The Advocate
Challenges inherent to zoning as an exercise of sovereignty
Checkerboarding
8
Brendale
Non-member activities
Browner
Educating the public on tribal issues
Conclusion
About the AuthorCharissa A. Eichman works for the
National Wildlife Federation with the Tribal Lands and Public Lands Programs. She earned her J.D., at the University of Idaho College of Law; and an L.L.M. at the University of Tulsa Law School.Endnotes
2 Brandale v Confederated Tribes and bands of Ya-kima Indian Nation City of Albuquerque v. Browner
cert. denied4 New Mexico v. Mescalero Apache Tribe,
Brandale v Confederated Tribes and bands of Ya-kima Indian Nation6 City of Albuquerque v. Browner
cert. denied New Mexico v. Mescalero Apache Tribe,
8 %The State of the Native Nations
Mediator/Arbitrator
The Advocate
A JURY OF THEIR PEERS: CAN A NATIVE AMERICAN DEFENDANT BE TRIED BY A JURY OF HIS PEERS IN THE UNITED STATES?Jason Brown
2
Selection methods
Batson v. Kentucky Batson
o
4
What does a jury of one’s peers mean?
Duren v. Missouri6
Jason Brown
The Advocate
Because Native Americans are excluded
made that not all U.S. citizens are
8
Batson v. Kentucky11 Long
Cultural Implications
Solutions
About the AuthorJason Brown graduated from the Uni-
versity of Idaho College of Law in May 2011 with an Emphasis in Native Ameri-can Law. This article is an excerpt from a 35 page article on the same topic. Mr. Brown can be contacted at [email protected]
2
4
6
8
22 The Advocate
THE NATIVE LAW PROGRAM AT THE UNIVERSITY OF IDAHO: A THIRD YEAR OF SUCCESS
Angelique EagleWomanUniversity of Idaho College of Law
Angelique EagleWomen
Professor EagleWoman was -
mittee on the Development of Federal Indian Law (DFIL) of
-tee recommends actions for the
Supreme Court cases which -
dian law and seeking the inclu-
The Advocate
About the AuthorAngelique EagleWoman is the chief
architect of University of Idaho College of
Law’s academic emphasis in Native Law. It is modeled after the program at the University of Tulsa, Oklahoma, where she received her master’s degree in law. Ea-gleWoman also studied political science at Stanford University and holds a juris doctor at University of North Dakota. She is the James E. Rogers Fellow in Ameri-can Indian Law at University of Idaho and currently serves as immediate past chair and secretary of the Association of American Law Schools (AALS) Section on Indian Nations & Indigenous Peoples. EagleWoman joined the Idaho College of Law faculty in 2008 and also serves on the University’s American Indian Studies (AIST) faculty.
HuegliMediation & Arbitration
Personal injury, commercial disputes, construction law, professional liability.
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No Obligation Consultation
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The Native Law program hosts an annual law conference at the end of March on important contemporary
24 The Advocate
THE TRIBAL LAW AND ORDER ACT OF 2010: TOWARD SAFE TRIBAL COMMUNITIES
Brian P. McClatchey Coeur d’Alene Casino Resort Hotel
powers separate from the states and the federal
and their people.
2
Background
4
6
8
Brian P. McClatchey
The Advocate
The implication is not hard to see: if the state has
Jurisdictional gaps
22
24
2
The beginning of the solution?
26
28
26 The Advocate
Conclusion
About the AuthorBrian P. McClatchey is the In-House
Attorney at the Coeur d’Alene Casino & Resort. A graduate of the University of Washington and the University of Michi-gan Law School, Brian’s practice encom-passes real property, employment, envi-ronmental and construction law matters. Endnotes
2
available at:
8
See, e.g., Worcester v. Georgia
4
6
Ex Parte Crow Dog
Criminal Jurisdiction over
Indian Lands: A Journey Through A Jurisdictional Maze8
See generallyPublic Law 280: The Limits of State Jurisdic-
tion over Reservation Indians
See
See State v. Barros State v. Major State v. Ambro
22
available at:
24 Id.
26
Gideon v. Wainwright
28
Id.
Id.
See supra
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GEORGE D. CAREY
The Advocate
28 The Advocate
COURT INFORMATION
Idaho Supreme Court
OFFICIAL NOTICE COURT OF APPEALS OF IDAHO
Chief Judge
Judges
Idaho Court of Appeals
OFFICIAL NOTICESUPREME COURT OF IDAHO
Chief Justice
Justices
Lewiston
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Idaho Supreme Court and Court of Appeals NEW CASES ON APPEAL PENDING DECISION
(Updated 7/1/11)
CIVIL APPEALSAttorney Fees and Costs
Grant v. Griggs
Oakes v. Boise Heart Clinic Physicians
Evidence
Lakeland True Value Hardware v. Hartford Fire Insurance Co.
License Suspension
Wilkinson v. Department of Transportation
Substantive Law
Benz v. D.L. Evans Bank
Bach v. Dawson
Summary Judgment
Paddison Scenic Properties Family Trustv. Idaho County
Fragnella v. Petrovich
Huskinson v. Nelson
Stevenson v. Windermere Real Estate
res judicataSilver Eagle Mining Co. v. State
CRIMINAL APPEALS
Evidence
State v. Herrera
State v. Toyne
Pleas
State v. Woodley
State v. White
Probation Revocation
State v. Roberts
Restitution
State v. Cottrell
State v. Eatinger
Suppression of Evidence
State v. Linenberger
State v. Acosta
State v. Decker
State v. Wilske
Substantive Law
State v. Summers
State v. Giovanelli
Cathy DerdenSupreme Court Staff Attorney
The Advocate
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The Advocate
PROTECTIONS AVAILABLE TO VICTIMS OF DOMESTIC VIOLENCE: NO CONTACT ORDERS, CIVIL PROTECTION ORDERS, AND OTHER OPTIONS
Annie Pelletier Kerrick Idaho Coalition Against Sexual & Domestic Violence
It is essential for civil attorneys representing a victim of domestic violence to consult with
their clients to determine if an order of protection will enhance safety or increase risk
2
History of protections for victims of domestic violence
4
6
Civil protection orders
8 F
Protection orders issued pursuant to the Idaho Domestic Violence Crime Prevention Act
Annie Pelletier Kerrick
The Advocate
Domestic violence civil protection orders
protection for a victim of domestic violence.
ex parte
ex parte
17
22
Protection order issued as a part of a criminal or civil action
The Advocate
24
Criminal no contact orders
26
28
Injunctive relief or temporary restraining orders
Conclusion
About the AuthorAnnie Pelletier Kerrick is an attor-
ney at the Idaho Coalition Against Sexual & Domestic Violence in Boise, where she has worked since her graduation from Gonzaga University School of Law in 2007. Annie manages the Idaho Legal Assistance for Victims Grant Program funded through the U.S. Department of
-
Victims of domestic violence may have to do things that seem illogical to simply survive
the situation they are living.
The Advocate
en, and focuses her work on addressing the civil legal needs of teenage and young adult victims of dating abuse and sexual assault.
Endnotes
2 See NAT’L INST. OF JUST., U.S. DEP’T OF JUST., RE-SEARCH PREVIEW: CIVIL PROTECTION ORDERS: VICTIM’S VIEWS ON EFFECTIVENESS
Enjoining Coercion: Squaring Civil Protection Orders with the Reality of Domestic Abuse, J.L. & FAM. STUD.
see Developments in the Law – Legal Responses to Domestic Violence, HARV. L. REV and see
4 The Subjection of
for Women Victims of Domestic Violence, 26 ST. MARY’S L.J.
supra
6 supra
COMM’N ON DOMESTIC VIOLENCE, AM. BAR ASS’N, DOMESTIC VIOLENCE CIVIL PROTECTION ORDERS (CPOS) BY STATE (2008), HTTP://WWW.AMERICAN-BAR.ORG/CONTENT/DAM/ABA/MIGRATED/DOMVIOL/DOCS/DV_CPO_CHART_8_2008.AUTHCHECKDAM.PDF
8 NAT’L INST. OF JUST., supraIDAHO
CODE ANN IDAHO CODE ANN.
IDAHO CODE ANN. § 39-6303(8)( ). Id. MAUREEN SHEERAN & EMILIE MEYER, CIVIL PRO-
TECTION ORDERS: A GUIDE FOR IMPROVING PRACTICE
Id. IDAHO CODE ANN IDAHO CODE ANN. But see, NAT’L INST. OF JUST., U.S. DEP’T OF JUST.,
RESEARCH PREVIEW: CIVIL PROTECTION ORDERS: VIC-TIM’S VIEWS ON EFFECTIVENESS, 1 (1998), available at (“[R]
IDAHO CODE ANN
IDAHO CODE ANN
MAUREEN SHEERAN & EMILIE MEYER, CIVIL PROTECTION ORDERS: A GUIDE FOR IMPROVING PRACTICE
IDAHO CODE ANN.
Id.
Id. 22 JACQUELYN CAMPBELL ET AL., INTIMATE PARTNER VIO-LENCE RISK ASSESSMENT VALIDATION STUDY, FINAL RE-PORT 11 (2005) available at
IDAHO CODE ANN24 Id.
26 IDAHO CODE ANN. IDAHO CRIM. R
28 Id. IDAHO CONST. IDAHO CODE ANN. IDAHO CRIM. R IDAHO R. CIV. PRO. 65(
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TITLE VII RETALIATION AGAINST THIRD PARTIES UNDER THOMPSON V. NORTH AMERICAN STAINLESS, LPMark DeMeester Hewlett Packard Company
In analyzing whether Thompson was
the concept that only employees personally
Introduction
Thompson v. North American Stainless LP 2 Thompson
Burling-ton Northern and Santa Fe Railway Co. v. White Burlington
Thompson
4
Thompson
The back and forth of Thompson
6
8
The Supreme Court interprets Title VII anti-retaliation language
Burlington.Mark DeMeester
The Advocate
Burlington
Burlington
Burlington
Practical implications of Thompson
Thompson
Thompson
Thompson
Conclusion
Thompson
22
About the AuthorMark DeMeester is a Senior Em-
ployment Counsel in the Hewlett-Packard Company Legal Department. The views expressed in this article are his alone and
Packard Company.Endnotes et. seq.
2
4
Equal Employment Opportunity Commission, Enforcement and Litigation Statistics
6
Id.8 Thompson v. North American Stainless LP
rev’d
Id
Thompson v. North American Stainless, LP
aff’d,rev’d
Thompson v. North American Stainless LPreh. en banc granted,
opinion vacated
See
quoting Burlington
Id Id Id Id Burlington
citation omitted
BurlingtonThompson
Burlington
22 Thompson
See McGhee v. Healthcare Servs. Grp. Inc.,
Thompson EEOC v. Williamette Tree Wholesale Inc
The door to third-party retaliation claims has
requiring management
to consider such potential challenges
when planning adverse employment actions.
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E-EDITING: TIME SAVING TIPS
Tenielle Fordyce-Ruff Smith, Fordyce-Ruff, & Penny, PLLC
on your word processor to quickly
citations in
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Spelling errors
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Tenielle Fordyce-Ruff
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in your document and then check to see
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argument
Wordy phrasesThe Advo-
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About the AuthorTenielle Fordyce-Ruff is a member of
Smith, Fordyce-Ruff & Penny, PLLC. She clerked for Justice Roger Burdick of the Idaho Supreme Court and taught Legal Research and Writing, Advanced Legal Research, and Intensive Legal Writing at the University of Oregon School of Law. She is also the author of Idaho Legal Re-search, a book designed to help law stu-dents, new attorneys, and paralegals nav-igate the intricacies of researching Idaho law. You can reach her at [email protected].
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ADVOCATES IN ACTION
Stephen A. Stokes
-
o
r
Stephen A. Stokes
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About the Author Stephen A. Stokes received his J.D.
from the University of Idaho in 2005. He is an associate with Meyers Law Of-
practices in the areas of family law, com-
mercial planning, general litigation, and personal injury. He is a member of the Idaho Association of Criminal Defense Lawyers and the Idaho Trial Lawyers Association. He served as chair of the Sixth District Bar Association Family Law Section. He is also a Judge Advocate in the Idaho Army National Guard and is currently deployed to Iraq. He can be reached by email at [email protected].
We still have a mission to perform here in Iraq –
must successfully and
42 The Advocate
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