Fortino Alvarez v. Randy Tracy

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FORTINO ALVAREZ, No. 12-15788

Petitioner-Appellant,

D.C. No.

v. 2:08-cv-02226-

DGC

RON LOPEZ,* Chief Administrator for

the Gila River Indian Department of

Rehabilitation and Supervision, ORDER AND

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted April 15, 2013

San Francisco, California

Filed August 30, 2016

Before: Alex Kozinski, Diarmuid F. O’Scannlain,

and N. Randy Smith, Circuit Judges.

*

Ron Lopez succeeded Randy Tracy as Chief Administrator. We

substitute him for Tracy pursuant to Federal Rule of Appellate Procedure

43(c)(2).

2 ALVAREZ V. TRACY

Opinion by Judge Kozinski;

Concurrence by Judge Kozinski;

Partial Concurrence and Partial Dissent by Judge

O’Scannlain

SUMMARY**

Habeas Corpus

The panel granted a petition for panel rehearing; withdrew

an opinion and dissent filed December 8, 2014; filed a new

opinion and dissent; and denied a petition for rehearing en

banc as moot in a case in which the panel, in the new opinion,

reversed the district court’s denial of a federal habeas petition

brought by Fortino Alvarez, an enrolled member of the Gila

River Indian Community, who sought relief from his tribal-

court conviction.

Under the Indian Civil Rights Act (ICRA), Indian tribes

may not deny criminal defendants facing imprisonment “the

right, upon request, to a trial by jury.” Alvarez sought habeas

relief on the theory that the Community deprived him of that

right by failing to inform him that he would only receive a

jury upon request.

After reviewing new information presented in Alvarez’s

petition for panel rehearing and the parties’ supplemental

briefs, the panel concluded that the Community deliberately

waived any non-exhaustion defense stemming from Alvarez’s

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ALVAREZ V. TRACY 3

failure to file a direct appeal. That waiver precluded the

panel from raising non-exhaustion sua sponte.

The panel did not need to resolve whether the jury-trial

rights accorded by ICRA and the Sixth Amendment are

equivalent. Assuming that the balancing test in Randall v.

Yakima Nation Tribal Court, 841 F.2d 897 (9th Cir. 1988),

applies, the panel concluded that Alvarez’s interests in

understanding the full contours of his rights outweigh any

interests the Community might have here. The panel wrote

that the Community’s handling of Alvarez’s case falls short

of the “fair treatment” required by ICRA, which includes the

right to know that he would forfeit his right to a jury unless

he affirmatively requested one.

Because the denial of the right to a jury trial is a structural

error, it requires automatic reversal, and the panel remanded

to the district court with instructions to grant the petition for

a writ of habeas corpus.

In a concurring opinion, Judge Kozinski wrote that this

appeal gives no occasion to consider a rat’s nest of problems

with the Community’s justice system. He wrote that perhaps

the Community and others like it will take this opportunity to

reconsider the dubious procedures they employ in their

criminal courts.

Judge O’Scannlain concurred in the court’s determination

that the Community deliberately waived its non-exhaustion

defense. He dissented from the court’s conclusion that the

Community denied Alvarez his “right, upon request, to a trial

by jury” when Alvarez never requested a jury. He wrote that

rather than analyze the scope of Alvarez’s jury-trial right

4 ALVAREZ V. TRACY

under ICRA, the majority applies an unmoored balancing test

without giving a reason to do so.

COUNSEL

Daniel L. Kaplan (argued) and Keith J. Hilzendeger,

Assistant Federal Public Defenders; Jon M. Sands, Federal

Public Defender; Office of the Federal Public Defender,

Phoenix, Arizona; for Petitioner-Appellant.

Thomas L. Murphy (argued), Deputy General Counsel; Linus

Everling, General Counsel; Gila River Indian Community

Office of the General Counsel, Sacaton, Arizona; for

Respondent-Appellee.

Barbara Creel, Professor of Law and Director of Southwest

Indian Law Clinic, University of Mexico School of Law,

Albuquerque, New Mexico; Tova Indritz, Co-Chair, Native

American Justice Committee, National Association of

Criminal Defense Lawyers, Albuquerque, New Mexico; for

Amicus Curiae National Association of Criminal Defense

Lawyers and Barbara Creel.

ALVAREZ V. TRACY 5

ORDER

The petition for panel rehearing is GRANTED. The

opinion and dissent filed on December 8, 2014 and published

at 773 F.3d 1011 are withdrawn. They are replaced by the

new opinion and dissent filed concurrently with this order.

The pending petition for rehearing en banc is DENIED as

moot. The parties may file new petitions for panel rehearing

or rehearing en banc within 14 days.

OPINION

KOZINSKI, Circuit Judge:

We consider whether an Indian tribe violated a criminal

defendant’s rights by failing to inform him that he could

receive a jury trial only by requesting one.

FACTS

Fortino Alvarez is an enrolled member of the Gila River

Indian Community (the “Community”). In April of 2003,

Alvarez (then 20) showed up drunk at the home of his

girlfriend (then 15). Following a brief argument, Alvarez

struck his girlfriend with a flashlight. When she attempted to

retreat, Alvarez pulled a knife. The girlfriend’s brother then

stepped outside to confront Alvarez. Alvarez clubbed him

too. Alvarez then took his leave, but not before informing his

victims that he would soon return to kill their entire family.

Alvarez was picked up by the Community police and

charged with assault, domestic violence, criminal threats, and

6 ALVAREZ V. TRACY

misconduct involving a weapon. According to the

Community, Alvarez received a “Defendant’s Rights” form

along with the criminal complaint. The Defendant’s Rights

form said: “You have the right to a jury trial.” The form

didn’t explain what Alvarez needed to do in order to invoke

that right.

At a group arraignment, the judge stated that Alvarez had

been informed of his rights.1 The judge then asked Alvarez

if he had any questions about those rights. He said that he

didn’t. At a bench trial four months later, Alvarez

represented himself. He presented no evidence, no witnesses,

no case, and no closing argument. When the judge asked

Alvarez whether he wished to cross-examine the

government’s key witness, Alvarez conceded that everything

the witness had said was true. Alvarez was convicted on all

counts except making criminal threats. He was sentenced to

five years in prison.

Under the Indian Civil Rights Act (ICRA), tribes may not

deny criminal defendants facing imprisonment “the right,

upon request, to a trial by jury.” 25 U.S.C. § 1302(a)(10).

Alvarez sought federal habeas relief on the theory that the

Community had deprived him of that right by failing to

inform him that he would only receive a jury upon request.

See id. § 1303. The district court denied relief after finding

that Alvarez validly waived his right to a jury trial by failing

to request one.

1

By whom, the record does not say.

ALVAREZ V. TRACY 7

DISCUSSION

I. Exhaustion

We may not exercise jurisdiction over a habeas petition

presenting ICRA claims unless the petitioner has first

exhausted his tribal remedies. See Grand Canyon Skywalk

Dev., LLC v. ‘SA’ NYU WA Inc., 715 F.3d 1196, 1200 (9th

Cir. 2013). The exhaustion doctrine is rooted in our respect

for tribal sovereignty: We are loath to second guess a tribe’s

handling of a criminal case unless and until the tribe has had

a fair opportunity to review the matter in its own appellate

courts. In order to protect tribal sovereignty, we may raise

the issue of non-exhaustion sua sponte when the tribe fails to

press that defense due to an “inadvertent error.” Day v.

McDonough, 547 U.S. 198, 211 (2006). But we may not

override a tribe’s “deliberate waiver” of its non-exhaustion

defense. Wood v. Milyard, 132 S. Ct. 1826, 1834 (2012); see

Day, 547 U.S. at 202. We have no discretion to raise non-

exhaustion on our own initiative when a tribe “strategically

withh[olds]” this defense, “cho[oses] to relinquish it,” makes

a “deliberate decision to proceed straightaway to the merits,”

or “deliberately steer[s] the [court] away from” the issue.

Wood, 132 S. Ct. at 1833–35.

In order to satisfy the exhaustion requirement, a criminal

defendant must pursue a direct appeal or show that such an

appeal would have been futile. See Jeffredo v. Macarro,

599 F.3d 913, 918 (9th Cir. 2010). Alvarez failed to pursue

a direct appeal or show the appeal would have been futile.

However, the Community’s response to Alvarez’s habeas

petition didn’t argue that this failure presented an exhaustion

problem. In our previous opinion, we raised the non-

exhaustion defense sua sponte after concluding that there was

8 ALVAREZ V. TRACY

“no indication in the record that the Community deliberately

waived” it. Alvarez v. Tracy, 773 F.3d 1011, 1019 (9th Cir.

2014). After reviewing new information presented in

Alvarez’s petition for rehearing and the parties’ supplemental

briefs, we now conclude that there is evidence of deliberate

waiver.

In its response to Alvarez’s habeas petition, the

Community argued that Alvarez did not exhaust because he

failed to pursue “a motion to correct his sentences” or “a

motion for commutation.”2 The Community now admits that

its response to Alvarez’s habeas petition “did not raise the

failure to take a direct appeal as an argument in support of the

nonexhaustion issue.”

After the Community filed its response to the habeas

petition, Alvarez filed a motion for leave to conduct

discovery. He sought permission to subpoena records and

depose a witness regarding the appeals system in the

Community courts.3 Alvarez explained that this discovery

was necessary “to address the defense of non-exhaustion

raised in the Community’s Response.” See Johnson v. Gila

River Indian Cmty., 174 F.3d 1032, 1036 (9th Cir. 1999)

(noting that the lack of a functioning appellate court would

2

There is no doubt that Alvarez failed to exhaust these remedies.

However, we agree with the district court that any attempt to invoke them

would have been futile. A motion for commutation would have been

denied due to Alvarez’s disciplinary infractions while incarcerated. And

the Community failed to show that its criminal Code allowed for either

habeas relief or the correction of a sentence, two remedies it faulted

Alvarez for failing to pursue.

3

To the extent that we refer here to information gleaned from sealed

documents, we pro tanto lift the seal on that information.

ALVAREZ V. TRACY 9

render a direct appeal futile, negating any non-exhaustion

defense). In its response to this motion, the Community

noted that Alvarez’s request for information “relating to the

processing of appeals” was “premised on a misunderstanding

of Respondent’s affirmative defense that Petitioner has failed

to exhaust his tribal court remedies.” The Community again

explained that Alvarez’s available remedies were “(1) a

motion for commutation of his sentence(s) or to correct his

sentences(s) [sic], or (2) filing a petition for writ of habeas

corpus in the Community Court.” Alvarez then withdrew his

request for discovery due to the Community’s “clear

indication that [it] is not arguing that Mr. Alvarez failed to

exhaust his claims by raising them in an appeal to the

Community court of appeals.” At no point did the

Community ever seek to correct Alvarez’s interpretation of

its response. We therefore conclude that the Community’s

response to the discovery request was a deliberate waiver of

any non-exhaustion defense stemming from Alvarez’s failure

to file a direct appeal.

Our conclusion that the Community waived this defense

is buttressed by the fact that the Community “deliberately

steered” us away from the issue of the direct appeal. Wood,

132 S. Ct. at 1835. When asked to address exhaustion at

argument before us,4 the Community’s lawyer first insisted

that the district court clearly erred by finding that it would

have been futile for Alvarez to seek a commutation of his

sentence or tribal habeas. When asked to expand on his

argument, the lawyer again emphasized that “Alvarez never

attempted to use any of the mechanisms that were specified

in the record below.” According to the lawyer, these

4

Alvarez’s unopposed motions to take judicial notice and to file an

amended supplemental brief are GRANTED.

10 ALVAREZ V. TRACY

remedies “included commutation” and “a habeas

proceeding.” When we asked about the possibility of a direct

appeal, the Community’s lawyer referred us yet again to “the

mechanisms that were identified in the motion to dismiss.”

Those mechanisms didn’t include a direct appeal. The

lawyer’s dogged insistence that we focus on commutation and

tribal habeas “deliberately steered” us away from any

discussion of the direct appeal. Id. That steering amounts to

intentional waiver, which in turn precludes us from raising

non-exhaustion sua sponte. See id.

II. Merits

Under ICRA, “[n]o Indian tribe in exercising powers of

self-government shall . . . deny to any person accused of an

offense punishable by imprisonment the right, upon request,

to a trial by jury.” 25 U.S.C. §1302(a)(10) (emphasis added).

The parties debate at length whether the jury-trial right

accorded by ICRA parallels the jury-trial right accorded by

the Sixth Amendment. If the rights are “the same,” then we

would employ federal constitutional standards when

determining whether or not the Community violated

Alvarez’s rights under ICRA. Randall v. Yakima Nation

Tribal Court, 841 F.2d 897, 900 (9th Cir. 1988); see also

Howlett v. Salish & Kootenai Tribes of the Flathead

Reservation, Mont., 529 F.2d 233, 238 (9th Cir. 1976). But

“[w]here the tribal court procedures under scrutiny differ

significantly from those commonly employed . . . courts

weigh the individual right to fair treatment against the

magnitude of the tribal interest . . . to determine whether the

procedures pass muster under” ICRA. Randall, 841 F.2d at

ALVAREZ V. TRACY 11

900 (internal citation and quotation marks omitted).5 This

balancing test reflects a “compromise intended to guarantee

that tribal governments respect civil rights while minimizing

federal interference with tribal culture and tradition.” Robert

J. McCarthy, Civil Rights in Tribal Courts: The Indian Bill of

Rights at Thirty Years, 34 Idaho L. Rev. 465, 467 (1998).

We need not resolve whether the jury-trial rights accorded

by ICRA and the Sixth Amendment are equivalent.

Assuming that Randall’s less rigorous balancing test applies,

we conclude that Alvarez’s interests in understanding the full

contours of his rights outweigh any interests the Community

might have here. Indeed, the Community’s handling of

Alvarez’s case falls short of the “fair treatment” required by

ICRA. Randall, 841 F.2d at 900.

Alvarez’s right to “fair treatment” includes the right to

know that he would forfeit his right to a jury unless he

affirmatively requested one. The Community concedes that

Alvarez “was not advised that he had to ask for” a jury. The

Community doesn’t argue that its Defendant’s Rights form

apprised Alvarez of the need for such a request. The right as

articulated on the form (“the right to a jury trial”) is very

different from the right Alvarez actually had under ICRA

(“the right, upon request, to a trial by jury”). The Community

doesn’t explain how a defendant would have known that he

5

The Randall test developed in the context of challenges premised on

Section 202(8) of ICRA, which provides that a tribe may not “deny to any

person within its jurisdiction the equal protection of its laws or deprive

any person of liberty or property without due process of law.” 25 U.S.C.

§ 1302(a)(8). We have never before had occasion to apply the Randall

test to Section 202(10) of ICRA, which accords the jury-trial right. See id.

§ 1302(a)(10). But the language and principle of Randall sweep beyond

Section 202(8).

12 ALVAREZ V. TRACY

was obligated to make a request in order to preserve his right

to a jury trial. Moreover, the first line on the form notes that

criminal defendants have “the right to a speedy trial and a

public trial.” Tribal defendants are accorded those rights

without having to take affirmative steps to invoke them. To

make the same unqualified statement as to a right that must

be affirmatively invoked is misleading.

So far as we can tell, the Community’s theory is that

Alvarez was expected to understand more about his rights

than was printed on the form. This was an unreasonable

expectation as to Alvarez, and, we expect, many others like

him who are charged in tribal courts. At the time of his

arraignment, Alvarez was barely out of his teens. He had a

seventh-grade education, and he was not represented by

counsel. He admitted to the judge that he didn’t “really know

about court that much.” The judge himself noted that Alvarez

was “having a hard time understanding the procedures.”

Despite Alvarez’s profound limitations, the Community made

no effort to ensure that Alvarez knew he would receive a jury

trial only if he requested one.

We are generally reluctant to trench upon tribal

sovereignty. See Smith v. Confederated Tribes of the Warm

Springs Reservation of Or., 783 F.2d 1409, 1412 (9th Cir.

1986). But we think it clear that Alvarez’s interests here

outweigh those of the Community. It hardly undermines

tribal sovereignty to require that the Community inform

defendants of the nature of their rights, including what must

be done to invoke them. The fact that such a requirement

presents minimal intrusion into a tribe’s sovereignty may

explain why “all tribal courts presented with the question

have concluded that there must be a knowing and voluntary

waiver of ICRA’s conditional jury right.” Mark D. Rosen,

ALVAREZ V. TRACY 13

Multiple Authoritative Interpreters of Quasi-Constitutional

Federal Law: Of Tribal Courts and the Indian Civil Rights

Act, 69 Fordham L. Rev. 479, 555 (2000).6 The Community

has never attempted to explain what legitimate interest it has

in using a boilerplate form that gives defendants a misleading

picture of their rights.7

6

See, e.g., McGrady v. Three Affiliated Tribes, 31 Indian L. Rep. 6058,

6059 (N. Plains Intertribal Ct. App. 2004) (“[W]e expressly hold that the

Tribe’s failure to inform the appellant [that he must request a jury trial at

the time of arraignment] constitutes a violation of his right to a trial by

jury as guaranteed under [ICRA].”); Confederated Salish & Kootenai

Tribes v. Peone, 16 Indian L. Rep. 6136, 6137 (C.S. & K. Tribal Ct. 1989)

(“This court must conclude that the failure of the accused to make a

request for a jury trial constitutes a valid waiver only when that failure to

request a jury trial is made knowingly and intentionally . . . .”); Squaxin

Island Tribe v. Johns, 15 Indian L. Rep. 6010, 6011 (Sq. I. Tribal Ct.

1987) (“[T]he court finds that the defendant subsequently waived his right

to trial by jury by knowingly and voluntarily failing to appear . . . .”); see

also Laramie v. Colville Confederated Tribes, 22 Indian L. Rep. 6072,

6074 (Colv. Ct. App. 1995) (“[T]he fundamental right of a criminal

defendant to a trial by jury cannot be diluted because of administrative

difficulties.”).

7

Citing four state-law cases, the Community suggests that a waiver of

the statutory right to trial by jury need not be knowing. We question

whether these cases are relevant to our analysis, as they do not interpret

ICRA. But even if relevant, they are readily distinguishable. In three of

the cases, the court specifically instructed the defendant that he had a right

to a jury trial upon request. See State v. Vernon, 356 N.W.2d 887, 889

(Neb. 1984); Jackson v. State, 644 N.E.2d 595, 596 (Ind. Ct. App. 1994);

State v. Farmer, 548 S.W.2d 202, 205 (Mo. Ct. App. 1977). In the fourth

case, the appellate court remarked that defendant’s “attorney clearly had

knowledge of the time frame within which to make a jury trial demand.”

State v. Gordon, 766 A.2d 75, 77 (Me. 2001). Moreover, the criminal

defendant was represented by counsel in at least three of the four cases.

Gordon, 766 A.2d at 76; Vernon, 356 N.W.2d at 889; Farmer,

548 S.W.2d at 205. The opinion in Jackson doesn’t mention whether the

defendant had an attorney at trial. 644 N.E.2d 595.

14 ALVAREZ V. TRACY

We hold that the Community denied Alvarez his right

under ICRA to be tried by a jury. Because denial of the right

to a jury trial is a structural error, it requires automatic

reversal. See Sullivan v. Louisiana, 508 U.S. 275, 281–82

(1993). We therefore need not reach Alvarez’s alternative

argument that the Community violated his confrontation

right.

* * *

The judgment below is REVERSED. This case is

REMANDED to the district court with instructions to grant

the petition for a writ of habeas corpus.

KOZINSKI, Circuit Judge, concurring:

This appeal gives us no occasion to consider a rat’s nest

of problems with the Community’s justice system that may

well provide future criminal defendants with avenues for

habeas relief. In 1999, we published an opinion expressing

“doubt that a functioning appellate court exists” in the Gila

River Indian Community. Johnson v. Gila River Indian

Cmty., 174 F.3d 1032, 1036 (9th Cir. 1999). Too few reforms

have been implemented in the intervening years. When the

Community destroys its inventory of Defendant’s Rights

forms, it may also wish to reflect on whether it is proud to

have: permitted Alvarez only five days to notice an appeal

after being sentenced, the shortest such window I have ever

heard of; incarcerated Alvarez for nine years without ever

providing him assistance of counsel; declined to provide

Alvarez with a notice-of-appeal form or any other post-trial

guidance about how to take an appeal, see Alvarez v. Tracy,

ALVAREZ V. TRACY 15

773 F.3d 1011, 1024 (9th Cir. 2014) (Kozinski, J.,

dissenting); incarcerated Alvarez after his conviction in a

facility with no law library, preventing him from conducting

his own research on the Community’s appeals procedure;

failed to ensure that Alvarez was apprised of his rights on the

record and by a judge, id. at 1034; permitted prosecutors to

convict Alvarez on the basis of hearsay testimony, in plain

contravention of his confrontation right; or faulted Alvarez

for failing to seek habeas relief in Community court despite

the fact that the Community’s own court of appeals has issued

an opinion indicating that habeas relief isn’t available under

the tribe’s Code.

Regrettably, our decision today comes too late to give

Alvarez any meaningful relief. He was released years ago

after having spent most of his twenties in the Community’s

custody. But this case need not be a total loss. Perhaps the

Community and others like it will take this opportunity to

reconsider the dubious procedures they employ in their

criminal courts.

O’SCANNLAIN, Circuit Judge, concurring in part and

dissenting in part:

I concur in the court’s determination that the Gila River

Indian Community deliberately waived its non-exhaustion

defense. I respectfully dissent, however, from the court’s

conclusion that the Community denied Fortino Alvarez his

“right, upon request, to a trial by jury” when Alvarez never

requested a jury. Rather than analyze the scope of Alvarez’s

jury-trial right under the Indian Civil Rights Act, the majority

16 ALVAREZ V. TRACY

simply applies an unmoored balancing test without giving a

single reason to do so.

I

As the majority recounts, in 2003 Fortino Alvarez struck

his girlfriend with a flashlight, threatened her with a knife, hit

her brother with the flashlight, and threatened to kill the

whole family. The Community charged him with various

crimes. Prior to a group arraignment, Alvarez received a

copy of the Community’s criminal complaint with a

“Defendant’s Rights” form attached. The Defendant’s Rights

form included the statement: “You have the right to a jury

trial.” The Community did not specifically notify Alvarez

that he needed to request a jury trial. The rights were also

read at the beginning of the group arraignment. At the

arraignment, the court asked Alvarez whether he had any

questions about those rights. He responded that he did not.

Later that year, Alvarez was convicted of most charges in

a tribal-court bench trial in which he represented himself. At

no point before or during the trial did Alvarez request a jury

or even inquire about one. In due course, Alvarez filed a

federal habeas corpus petition under 25 U.S.C. § 1303

challenging various convictions and sentences on the basis of

nine claims. The district court, adopting the recommendation

of a magistrate judge, dismissed all claims. On appeal,

Alvarez challenges only the dismissal of two claims: (1) his

claim that he was denied his right to be confronted with the

witnesses against him,1 and (2) his claim that he was denied

his right, upon request, to a jury trial.

1

Like the majority, I do not address Alvarez’s confrontation rights.

ALVAREZ V. TRACY 17

II

A

“As separate sovereigns pre-existing the Constitution,

tribes have historically been regarded as unconstrained by

those constitutional provisions framed specifically as

limitations on federal or state authority.” United States v.

Bryant, 136 S. Ct. 1954, 1962 (2016) (quoting Santa Clara

Pueblo v. Martinez, 436 U.S. 49, 56 (1978)). “The Bill of

Rights . . . , therefore, does not apply in tribal-court

proceedings.” Id. However, “persons subject to tribal

authority can invoke other sources of individual rights. The

two most prominent sources of these rights are tribal bills of

rights . . . and federal statutes such as” the Indian Civil Rights

Act of 1968 (ICRA), Pub. L. No. 90–824, § 202, 82 Stat. 73,

77–78 (codified as amended at 25 U.S.C. § 1302(a)).

F. Cohen, Cohen’s Handbook of Federal Indian Law

§ 14.03[1], at 944 (2012 ed.) [hereinafter Cohen’s].

ICRA, “rather than providing in wholesale fashion for the

extension of constitutional requirements to tribal

governments, as had been initially proposed, selectively

incorporated and in some instances modified the safeguards

of the Bill of Rights to fit the unique political, cultural, and

economic needs of tribal governments.” Martinez, 436 U.S.

at 62. Thus, in ICRA, “Congress accorded a range of

procedural safeguards to tribal-court defendants ‘similar, but

not identical, to those contained in the Bill of Rights and the

Fourteenth Amendment.’” Bryant, 136 S. Ct. at 1962

(quoting Martinez, 436 U.S. at 57).

18 ALVAREZ V. TRACY

B

“In addition to other enumerated protections, ICRA

guarantees ‘due process of law.’” Id. (quoting ICRA

§ 202(8)). The majority concludes that the Community’s

apparent failure to notify Alvarez of the requirement to

request a jury (the “demand requirement”) was unfair, which

sounds perhaps like a due process violation. However,

Alvarez has not argued, on appeal or in the district court, that

the failure to notify him of the demand requirement violated

his right to due process. He argued below that numerous

other aspects of his convictions violated his right to due

process, but not the tribe’s failure to provide notice of the

requirement to request a jury.

Fear not. The majority has devised a clever way to

vindicate Alvarez’s due process rights: ignore the text of

ICRA and instead import a due-process balancing test. Maj.

Op. at 10–11 & n.5 (concluding that we should apply the test

from Randall v. Yakima Nation Tribal Court, 841 F.2d 897,

900 (9th Cir. 1988)). To its credit, the majority

acknowledges that the Randall test was “developed in the

context of challenges premised on” ICRA’s due process right,

§ 202(8), and further recognizes that we have never applied

the Randall test to a jury-trial claim under § 202(10). Maj.

Op. at 11 n.5.

What the majority does next, however, is both

unexplained and troubling. The majority does not state why

we should apply an atextual balancing test to a claim under

§ 202(10). Instead, it jumps straight to the conclusory

determination that “the language and principle of Randall

sweep beyond Section 202(8).” Maj. Op. at 11 n.5. With

respect, this is not how we should decide cases. We

ALVAREZ V. TRACY 19

determine the relevant standard to apply in a given case based

on reasons to do so, not the absence of reasons to refrain

from adopting some standard at random (or at will).

Importantly, Alvarez did not argue that we should apply

the Randall test.2 As a result, he waived any such argument,

and the majority should not expect the Community to explain

why the Randall test should not apply.

Moreover, we should not apply a test designed to evaluate

generalized due process claims under § 202(8) when another

ICRA provision, § 202(10), specifically addresses the right to

a jury trial. In general, where a specific provision constitutes

an explicit textual source of protection against a particular

sort of government behavior, that provision, and not more

generalized notions of due process, “must be the guide for

analyzing” claims that the government engaged in prohibited

behavior. See County of Sacramento v. Lewis, 523 U.S. 833,

842 (1998); United States v. Lanier, 520 U.S. 259, 272 n.7

(1997); Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 805 (9th

Cir. 2014) (en banc) (O’Scannlain, J., dissenting). We should

apply this principle to analysis under ICRA because the

procedural safeguards of ICRA largely mirror those of the

federal constitution, both in content and the relative levels of

generality of their protections.

Indeed, we have already applied this principle in

construing ICRA. In Tom v. Sutton, we declined to apply the

due process right in § 202(8) to find a right to appointment of

counsel for indigent defendants because § 202(6) specifically

2

Instead, he argued that the ICRA jury-trial right parallels the Sixth

Amendment jury-trial right, so we should employ “federal constitutional

standards” to evaluate his jury-trial claim.

20 ALVAREZ V. TRACY

addressed the right to counsel. 533 F.2d 1101, 1105 (9th Cir.

1976).

Thus, there are at least two good reasons not to import

Randall’s due-process test to evaluate jury-trial claims. Yet

the majority adopts such test for its analysis without any

countervailing reason to do so.3

III

Instead of shrugging our shoulders and adopting a due-

process test for no reason, we should construe ICRA’s jury-

trial provision and determine whether the Community

violated Alvarez’s right under such provision.

A

Alvarez argues that ICRA’s jury-trial right parallels the

jury-trial right guaranteed by the Sixth Amendment. It

clearly does not.

1

Congress modified the safeguards regarding

imprisonment and the criminal jury trial in the ICRA. The

Sixth Amendment provides:

3

Further, I am not persuaded that it was unfair to require Alvarez to do

something to invoke his rights. Alvarez was told he had a right to a jury

trial. Alvarez failed to object, ask a question, or do anything when it was

clear that the trial was proceeding without a jury. And after the trial was

over, he failed to appeal. At a certain point, a defendant cannot sit on his

rights and then claim unfairness when the trial does not turn out the way

he wanted.

ALVAREZ V. TRACY 21

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously

ascertained by law, and to be informed of the

nature and cause of the accusation; to be

confronted with the witnesses against him; to

have compulsory process for obtaining

witnesses in his favor, and to have the

Assistance of Counsel for his defence.

As originally enacted, the ICRA provided: “No Indian

tribe in exercising powers of self-government shall . . .

(6) deny to any person in a criminal

proceeding the right to a speedy and public

trial, to be informed of the nature and cause of

the accusation, to be confronted with the

witnesses against him, to have compulsory

process for obtaining witnesses in his favor,

and at his own expense to have the assistance

of counsel for his defense; . . .

(10) deny to any person accused of an offense

punishable by imprisonment the right, upon

request, to a trial by jury of not less than six

persons.”

ICRA, Pub. L. No. 90–824, § 202, 82 Stat. 73, 77–78 (1968)

(codified as amended at 25 U.S.C. §§ 1302(a)(6)–(8), (10)

(2012)).

22 ALVAREZ V. TRACY

ICRA § 202(6) contained most of the same text as the

Sixth Amendment, but it differed in key aspects. For

instance, it did not provide for free counsel for indigent

defendants, ICRA § 202(6) (counsel “at his own expense”),

while the Sixth Amendment did so provide, see Gideon v.

Wainwright, 372 U.S. 335 (1963). Also, § 202(6) did not

provide a right to a jury trial.

ICRA § 202(10) provided a jury-trial right, but its text did

not parallel the Sixth Amendment text at all. Indeed, the only

commonality between the text of ICRA § 202(10) and the

Sixth Amendment was that both contain the words “right to

a,” “trial,” “by,” and “jury.” Subsection 202(10) expressly

required a request to receive a jury, it did not require an

impartial jury, and it did not require a jury “of the State and

district wherein the crime shall have been committed.”

Compare ICRA § 202(10) with U.S. Const. amend. VI.

2

Critically, unlike the Sixth Amendment, ICRA provides

a right to have a jury trial only upon request.

In 1986, Congress permitted tribes to impose a sentence

of up to one year in jail. Indian Alcohol and Substance

Abuse Prevention and Treatment Act of 1986, Pub. L. No.

99–570, § 4217, 100 Stat. 3207–146 (codified as amended at

25 U.S.C. § 1302(a)(7)(B)). At that time, the Sixth

Amendment required a jury trial as the default for any crime

punishable by more than six months in jail. See Baldwin v.

New York, 399 U.S. 66, 69 (1970) (plurality). In federal

court, a defendant would receive a jury trial for a non-petty

offense unless (1) he waived a jury in writing, (2) the

government consented, (3) the trial court sanctioned the

ALVAREZ V. TRACY 23

waiver, and (4) the waiver was made expressly and

intelligently. See Singer v. United States, 380 U.S. 24, 34

(1965). The States had “adopted a variety of procedures

relating to the waiver of jury trials in state criminal cases.”

Id. at 36–37. Without a waiver, a jury trial was the default for

“serious crimes.” Duncan v. Louisiana, 391 U.S. 145, 154

(1968) (“The laws of every State guarantee a right to jury trial

in serious criminal cases . . . .”).4

Thus, contrary to Alvarez’s argument, ICRA’s jury-trial

right differs substantially from the Sixth Amendment’s jury-

trial right. However, this conclusion merely raises the

question: if the rights are different, then what right did

Congress provide in ICRA?

4

The Sixth Amendment does not require a jury trial for “petty offenses,”

for which the penalty does not exceed six months’ imprisonment or a $500

fine, or both. See 18 U.S.C. § 1(3) (1964) (“Any misdemeanor, the

penalty for which does not exceed imprisonment for a period of six

months or a fine of not more than $500, or both, is a petty offense.”);

Cheff v. Schnackenberg, 384 U.S. 379 (1966) (A “petty offense . . . does

not require a jury trial.”). Indeed, at the time of ICRA’s enactment in

April 1968, three states did not require jury trials for longer periods of

imprisonment: Louisiana only granted a jury trial in cases in which capital

punishment or hard labor could be imposed; New Jersey’s disorderly

conduct offense carried a one-year maximum sentence but no jury trial;

and New York State did not provide juries in New York City for crimes

with a one-year maximum sentence. Duncan, 391 U.S. at 146, 161 &

n.33. Shortly after ICRA’s enactment, the Supreme Court confirmed that

states need not provide a jury trial for “[c]rimes carrying possible penalties

up to six months . . . if they otherwise qualify as petty offenses.” Id. at

159. Thus, ICRA § 202(10) provided a greater right than those available

in federal court or in state court for offenses for which the penalty did not

exceed six months.

24 ALVAREZ V. TRACY

B

1

The plain meaning of § 202(10) at the time of its

enactment suggests that it did not obligate tribes to provide

notice of the demand requirement. Subsection (10) provides:

“No Indian tribe . . . shall . . . deny to any person . . . the right,

upon request, to a trial by jury.” Thus, at least one

prohibition is clear in the statutory text: a tribe cannot refuse

to grant a defendant’s request for a jury trial. The tribe did

notify Alvarez of his right to a jury trial, and there is no

dispute that Alvarez did not request a jury.

Instead, the parties’ dispute centers on whether § 202(10)

obligated the tribe also to notify Alvarez of the requirement

to request a jury. Do tribes deny the “right, upon request, to

a trial by jury” by failing to notify defendants of the need to

request a jury? Obviously, the plain text of § 202(10) does

not explicitly state that a tribe must provide a defendant with

notice of such requirement. The lack of any textual

requirement that tribes notify defendants of the need to

request a jury strongly suggests that Congress did not impose

such a requirement.

2

Context reinforces that the right to receive a jury trial

does not include a right to be notified of the need to request

a jury trial.

In 1968, there existed both tribal courts established by

tribes and Courts of Indian Offenses, which “were created by

the Federal Bureau of Indian Affairs to administer criminal

ALVAREZ V. TRACY 25

justice for those tribes lacking their own criminal courts.”

Santa Clara Pueblo, 436 U.S. at 64 n.12; see also Cohen’s

§ 4.04[3][c], at 263–64. Congress applied § 202, including

the jury-trial right, to both types of courts. ICRA §§ 201–02.

In a neighboring provision, § 301 of that statute, Congress

directed the Secretary of the Interior also to establish a model

code to govern the Courts of Indian Offenses:

Such code shall include provisions which will

(1) assure that any individual being tried for

an offense by a court of Indian offenses shall

have the same rights, privileges, and

immunities under the United States

Constitution as would be guaranteed any

citizen of the United States being tried in a

Federal court for any similar offense,

(2) assure that any individual being tried for

an offense by a court of Indian offenses will

be advised and made aware of his rights

under the United States Constitution, and

under any tribal constitution applicable to

such individual . . . .

Pub. L. No. 90–284, § 301, 82 Stat. 73, 78 (codified at

25 U.S.C. § 1311) (emphasis added). Thus, in federally

established Courts of Indian Offenses, a model code would

assure that defendants there both have rights—the full slate

of rights provided by our Constitution—and that they have

notice of these rights. The fact that Congress provided for

both in separately enumerated provisions of § 301 strongly

suggests that Congress viewed rights as distinct from notice

of such rights. While a model code for Courts of Indian

Offenses would provide both, Congress did not impose a

model code on tribal courts established by tribes, such as the

26 ALVAREZ V. TRACY

court in which Alvarez was convicted. Instead, for such

courts Congress only imposed the rights contained in § 202,

without any notice requirement.

Consequently, I would conclude that Congress did not

impose on tribes any obligation to notify defendants of the

need to request a jury. Section 202(10) only required tribes

to refrain from denying the right to a jury trial, but did not

obligate tribes to notify defendants of the need to request a

jury.

3

Substantive canons reinforce my conclusion that we

should not construe § 202(10) to impose on tribes a duty to

notify defendants that they must request a jury.

“Federal courts must avoid undue or intrusive interference

in reviewing Tribal Court procedures.” Smith v.

Confederated Tribes of Warm Springs, 783 F.2d 1409, 1412

(9th Cir. 1986). In the specific context of ICRA, the Supreme

Court has emphasized that “considerations of ‘Indian

sovereignty are a backdrop against which the applicable

federal statute must be read.’” Santa Clara Pueblo, 436 U.S.

at 60 (quoting McClanahan v. Ariz. State Tax Comm’n,

411 U.S. 164, 172 (1973) (alterations omitted)). Most

importantly, the Court has admonished, “Although Congress

clearly has power to authorize civil actions against tribal

officers, and has done so with respect to habeas corpus relief

in [28 U.S.C. § 1303], a proper respect both for tribal

sovereignty itself and for the plenary authority of Congress in

this area cautions that we tread lightly in the absence of clear

indications of legislative intent.” Id. Absent any clear

indications that § 202(10) requires the tribe to notify Alvarez

ALVAREZ V. TRACY 27

of the demand requirement, we should “tread lightly” and

conclude that Alvarez has failed to show that the tribe

violated his rights under § 202(10).5

5

We should not give much, if any weight, to the tribal decisions

discussed by the parties. First, we should not base our opinion on

decisions issued by unrelated tribes. Alvarez makes no argument that the

Gila River Indian Community’s tribal courts would handle this issue in the

same manner as other courts that have addressed the issue. The

Community could interpret § 202(10) differently depending on the tribe’s

own needs, customs, and resources. One commentator has noted:

Indian tribes are not all alike. Tribes range in size from

tremendous to tiny. Some gaming tribes have per

capita incomes that rival the richest towns in the United

States while other tribes are some of the poorest

communities in the country. Some tribes have adopted

tribal court systems that largely mimic those present in

the states surrounding them, while others have courts

with little or no resemblance to Anglo-American justice

systems.

Max Minzner, Treating Tribes Differently: Civil Jurisdiction Inside and

Outside Indian Country, 6 Nev. L. J. 89, 89 (Fall 2005) (footnotes

omitted). Thus, the panel should avoid imposing the decisions of unrelated

tribes on the Community. To the extent that we give any weight to the

tribal opinions, I note that in Confederated Salish & Kootenai Tribes v.

Peone, 16 Indian L. Rep. 6136 (C.S. & K. Tr. Ct. 1989), the court stated:

“In the event of a pro se defense, it is the accused’s responsibility to be

aware of his own rights . . . and failure to act in a timely manner on his

own behalf is a burden the accused must bear alone. Even when the

accused intends to obtain legal counsel the need for timely advice

generally is the responsibility of the defendant.” Id. at 6137.

Like the majority, Maj. Op. at 13 n.7, I question whether state-court

decisions are relevant to our analysis. To the extent that we consider

them, I note that several state-court decisions support the tribe’s position.

See State v. McClinton, 418 S.W.2d 55, 60–61 (Mo. 1967) (discussing

28 ALVAREZ V. TRACY

C

Based on the plain meaning of the statutory text, the

statute’s context, and important considerations of tribal

sovereignty, I would conclude that ICRA § 202(10) prohibits

a tribe from refusing a defendant’s request for a jury trial, but

does not impose an affirmative obligation on tribes to notify

defendants that they must request a jury. Because Alvarez

did not request a jury, the Community did not violate his

rights under § 202(10).

I respectfully dissent.

State v. Larger, 45 Mo. 510, 511 (1870)); State v. Mangelsen, 297 N.W.2d

765, 767–68 (Neb. 1980).