F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

F O R T I N O A L V A R E Z , Petitioner-Appellant

,

v

.

R A N D Y T R A C Y , Acting Chief Administrator for the Gila River I ndian Department of Rehabilitation and Supervision,

Respondent-Appellee

. N o. 12-15788

D.C. No. 2:08-cv-02226- DGC

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na David G. Campbell, District J udg e, Presiding

Arg ued and Submitted April 15, 2013—San F rancisco, California

F iled December 8, 2014

B e fore: Alex Koz inski, Diarmuid F . O’Scannlain, and N. Randy

Smith, Circuit J udg es.

Opinion by

J udg e N.R. Smith; Dissent by

J udg e Koz inskiA L V A R E Z V

. T R

A C Y 2

SUMMARY *

Habeas Corpus

The panel affirmed the district court’s denial of a h abeas
corpus p etition broug ht p u r s uant to the I ndian Civil Rig hts Act, 25 U.S.C. § 1303 (I CRA), an d 2 8 U

. S.C. § 2241, in which F ortino Alvarez challeng ed convictions and sentences imposed by

the Gila River I ndian Community tribal court.

The panel declined to ex ercise jurisdiction over Alvarez ’s claims and a ffirmed the denial of the habeas petition because Alvarez f ailed to ex haust h is claims by b ring ing them f irst to the tribal courts, and did not demonstrate t h a t unavailability

or futility of direct a

ppeal ex cuses the ex haustion r equirement

or that the Community ’s a ppeals process did not c omply with the I CRA.

Althoug h the Community failed to raise Alvarez ’s lack o f direct appeal in its motion to d ismiss, the p a nel considered the defense under W

ood v. Milyard

, 132 S. Ct. 1826 (2012), and Granberry v. Greer
, 481 U.S. 129 ( 1987), and concluded that the strong comity and judicial efficiency interests a t stake warrant federal abstention.

Dissenting

, J udg e Koz inski wrote t h a t the majority does
not live up to its solemn r e sponsibility to appear impartia l, when it forg ives the Community

, which was represented b y counsel, for failing to r a i s e an ex haustion defense in district
court or on appeal, but holds Alvarez t o his sing le oversig ht

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.A L V A R E Z V

. T R

A C Y 3

of failing

, while unrepresented before the Community court, to raise h is j u ry trial and confrontation claims by way of a direct appeal. On the merits, J udg e K oz inski would f ind that th e Community v iolated Alvarez ’s r ig ht to a jury trial under I CRA b y failing to infor m him that h e needed to request a jury , a structural error fatally undermining the conviction.

COUNSEL

Daniel L

. Kaplan (brie fed and arg ued), Assistant F ederal Public D efende r , and Keith J

. Hilz endeg er, Research a nd W r iting Specialist, Office of the F ederal Public Def ender, Phoenix , Ariz o na, for Petitioner-Appellant.

L inus E verling

, General Counsel, an d Thomas L

. Murphy (briefed and arg u e d ), Deputy General Cou nsel, Gila River I ndian Community Office of the General Counsel, Sacaton, Ariz ona, for Respondent-Appellee.A L V A R E Z V

. T R

A C Y 4

OP INION

N.R. SMI TH, Circuit J udg e :

A petitioner’s failure to ex haust a claim broug ht under the I ndian Civil Rig hts Act (the “I CRA”), 25 U.S.C. § 1303, does
not deprive the f

e d eral court of subject matter jurisdiction. Iowa Mut. I

ns. Co. v. LaPlante

, 480 U .S. 9, 16 n.8 ( 1 987); Grand Canyon Skywalk Dev., LLC v. ‘SA’ NY U W A Inc.
, 715 F .3d 1196, 1200 (9th Cir. 2 013); Selam v. W arm Springs Tribal Corr. F

acility

, 134 F .3 d 9 4 8
, 953 (9th Cir. 1998). Nevertheless, e x h austion under the I CRA is a “prerequisite to

a federal court’s ex ercise of its jurisdiction.” Grand Canyon
, 715 F .3d at 1200. A ccording ly

, we will not address a petitioner’s unex hausted claims, unless the petitioner shows that one of the doctrine’s narrow ex ceptions applies. Jeffredo

v. Macarro
, 599 F .3d 913, 918 (9 t h C i r

. 2009); see also Selam , 134 F .3d at 954.

At the o utset, we n ote that “ I n dian tribes occupy a unique
status under our law.” Nat’l Farmers Union I n s. Cos. v

. Crow Tribe

, 471 U.S. 8 45, 851 (1985). They “are not bound by the United States Constitution i n the ex ercise o f their
powers, including their judicial p o w e r s .” Means v. Navajo Nation
, 432 F .3d 924, 9 30 (9th Cir. 2005). As a r esult, “tribal proceeding s do not afford criminal defenda n t s t he same protections a s do federal proceeding s.” Unite d S t a t es v

. Percy
, 2 50 F .3d 720, 725 (9th Ci r

. 2 0 0 1). Althoug h the I CRA g rants many r ig hts to tribe members, some of w hat we would con s i d e r o ur most basic rig hts are noticeably absent. See, e.g.
, id. (Six th Amendment rig ht to counsel).

Habeas corpus provides the ex c lusive remedy by which enforcement of the I CRA can be obtained in federal c o u rt.A L V A R E Z V

. T R

A C Y 5

See Santa Clara Pueblo v

. Martinez
, 436 U.S. 49, 66 (1978). Even when we mig h t ex e rcise jurisdiction in the h abeas
contex t, the “Supreme Court specifically has instructed us to require ex h a

ustion o f tribal appellate court remedies

. . . because the federal policy o f promoting tribal selfg overnment encompasses the development of the entire tribal
court sy stem, including appellate courts.” Selam

, 134 F .3d at 953 (i n t e rnal quotation marks omitted). At times, these considerations constrain our ability to g rant a petitioner relief,

even when his u nex h austed claim may be meritorious in other
contex ts.

I n the instant case, F ortino Alvarez failed t o ex haust his I CRA claims by bring ing t h em first to the tribal courts. Alvarez h as not de m o n strated that an ex ception to the

ex h austion doctrine applies. Thus, we dec line to ex ercise j u r i sdiction over h is claims and affirm the district cour t ’s denial of his habeas petition.

F ACTS

Alvarez is an en r o l led member of the Gila River I ndian Com m u n i ty (the “Community ”). I n 2003, the Community charg ed Alvare z with assault, d o mestic violence, a nd misconduct involving a w e a p o n (the “Charg es”) after Alvarez alleg edly assaulted h is g irlfriend w ith a flashlig ht. The Community ’ s tribal court arraig ned Alvarez on the Charg e s during a g roup arraig

nment on J uly 3, 2003.

Prior to the arr a i gn m e n t, Alvarez r eceived a copy of the Community ’ s cr i m i n a l c o m p l ai nt with an a ttached “Defendant’s Rig hts” form. The Defendant’s Rig hts f o r m included, among others, the statement: “You have the rig ht to appeal, if y ou are found ‘ G u i lty ’
, within a period of fiveA L V A R E Z V

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(5) business day s after sentencing .” 1 T his statement was consistent with the rig ht to appeal provided by the Gila River I ndian Community Code. 2 The Community court a l s o read the form at the beg inning of the gr o up arraig nment. Thereafter, the court ask e d A l varez individually whether he had any questions abou t those rig hts. He responded that he did not.

The Community court convicted A lvarez of the Charg e s after a bench trial in late-2003. The c o urt sentenced Alvarez
to one y ear of imprisonment fo r each of the five Charg es. The court also determined that Alvarez should serve the five
y e a r s c onsecutively with other time for separate crimes for which A lvarez was convicted—bring ing his total prison term to nine y ears.

Alvarez did not appeal his c onvi c tion or sentences. At

some point, Alvarez filed a motion fo r c o m m u tation of his
sentence. A lthoug h A lvarez failed to raise any I CRA c laims in the motion for commutation, it is un c lear whether tribal

1 T h e f o rm also stated : “ Yo u

h av e a rig h t to a j u ry

trial.”

2 Sectio n 2 .1 2 3 6 (A ) of th e Gila R iv er In d ian Co m m u n ity Co d e, at th e tim e, p ro v id ed :

T h e Co m m u n ity

, o r an y party to a p ro secu tio n b y in f o rm atio n o r co m

p lain t m ay ap p eal as p res c rib ed in th is C o d e. A d

e f e n d a n t sh a ll h ave t

h e rig h t to a

p pea l h is co n victio n o r sen ten ce in a crimin a l a ctio n

. A
p etitio n f o r ap p eal m

u s t b e f iled w ith in f

iv e d ay s af

ter th e d ecis i o n , o rd er, d ecree, o r j u d g m en t o f a co u rt,

ex clu d in g Satu rd ay s, Su

n d ay s, an d h o l id ay s o b se rv ed b y th e Co m m u n ity Co u rt.

(em p h asis ad d ed ).A L V A R E Z V

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procedure allowed him to assert such g rounds. I n any event, the Community court denied the motio n f or commutation, because Alvarez ’ s disciplinary infractions i n p r ison made him inelig ible for commutation.

I n 2008, Alvarez filed a pro se habeas corpus petition (the “Petition”) under 25 U .S.C. § 1303, challeng ing his convictions and sentence s

. Alvarez raised a number o f alleg ed I CRA violations. 3 T h e Community moved to dismiss the Petition, arg uing that A lvarez failed to ex haust his tribal remedies. The Community arg ued that Alvarez should have broug ht: ( 1) a motion to commute that included the I CRA claims raised in the Petition; (2) a petition for writ of h abeas
corpus to the Community ; o r ( 3 ) “a motion to correct his sentence.” B oth the assig ned mag istrate judg e and the district
court rejected the Communit y ’s ex haustion a rg uments a

nd found that, e ven if a motion to comm u t e w e r e an available remedy

, further attempts to ex haust throug h a second motion
to commute would have been futile. T h e di s t r i c t c ourt also concluded that the Community failed to show tha t t r ibal procedure allowed for a writ of habeas corpus or a “motion to correct” Alvarez ’ s sentence. Neither the parties nor the lower
court discussed Alvarez ’ s f ai l u r e to file a d irect appeal a s bearing on the ex haustion issue.

The mag istrate judg e recommended that the district court dismiss all of Alvarez ’s claims on their merits. The d i s t rict

3 A lv arez w as n o t rep resen ted in an y o f th e p ro c e e d i n g s b ef o re th e Co m m u n ity co u rts. Ev en tu ally

, th e f

ed eral d istrict co u rt g ran ted A lv arez’ s m o tio n to ap p o in t co u n sel

. H o w e v er, w e n o te th at, i n sh arp

co n trast to Gid

eo n v. W a in wrig h t , 3 7 2 U.S. 3 3 5 (1 9 6 3 ), t

h e ICRA d o es n o t p ro v id e a rig h t to ap p o in t ed c o u n s e l f ree o f ch arg e. See 2 5 U.S.C. § 1 3 0 2(a)(6 ); To m v. S u tto n , 5 3 3 F.2 d 1 1 0 1 , 1 1 03

– 0 4 (9 th Cir. 1 9 7 6 ).A L V A R E Z V

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court adopted the recommendation. Alvarez timely appealed, challeng ing the dismi s s al of his Confrontation Clause a nd rig ht to jury

trial claims.

D ISCUSSION

W e “review de novo a district court’s denial of a petition for writ o f habeas corpus u n d e r the I CRA.” Jeffredo

, 599 F .3d at 917.

I.

“‘[ A] federal court’s ex ercise of jurisdiction over matters relating to reservation a ffairs can .

. . impair the authority o f tribal c o urts.’” Selam

, 134 F .3d at 953 (quoting Iowa Mut.
, 480 U.S. at 1 5) (second alteration in origi n a l ). As such, “‘[ t] he Supreme Court’s policy of n u rturing tribal selfg overnment strong ly discourag es federal courts from assuming jurisdiction over unex hausted cla ims.’” Jeffredo

, 599 F .3d at 918 (quoting S elam

, 134 F .3d at 953). T hus, “the
court is required to ‘stay its hand’ until [ a ] p arty has

ex h austed all available tribal remedies.” Id.

A party ’s fa ilure to ex h aust, however, does not deprive the federal courts of subject mat t e r j urisdiction o ver the clai m s

. See I

owa M ut. , 480 U.S. at 16 n.8. T w o Supreme C o u r t c a s e s

— National F

a rmer s a n d I o w a M u t u a l

— i l l u m i n a t e the nature of our ex haustion requirement and its ex ceptions. I n National Farmers
, the Supreme Cour t applied the

ex h austion doctrine in a f ederal c ase broug ht b y non-I n dians
ag ainst I ndians in federal court. See 471 U.S. a t 855–57. The non-I ndian plaintiffs soug ht to enjoin ex e c ution of a tribal
court judg ment ag ainst their property

. Id. at 848. The district
court entered the injunction, concluding that the tr i bal courtA L V A R E Z V

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d i d not have jurisdiction over non-I ndians’ property

. Id. at 848–49. The Supreme Court concluded that the federal district court improperly entered the injunc t i o n, because the non-I ndian plaintiffs had not raised the challeng e to the tribal court’s jurisdiction to the tribal court in the first instance. Id.
at 856–57. The Court r easoned that “Cong ress is committed
to a policy o f supporting tribal self-g overnment and selfdetermination.” Id. at 856

. S u c h policy favors allowing tribal courts “the first opportunity to evaluate the factual a nd leg al bases for the challeng e ” to the tribal court’s jurisdiction. Id.

I n Iowa Mutual

, an insurance company challeng e d t h e tribal court’s jurisdiction to decide a tort case ag ainst one of the company ’ s policy

holders. 480 U

. S

. at 12. The tribal court held that it had jurisdiction over the claims ag a inst the non-I ndian company

. Id. The company did not appeal to the trib e’s court of appeals, but f iled suit in federal court. Id. at 12–13. The district court dismissed d u e t o the company ’s failure to fully ex haust its jurisdicti o nal challeng e. The district court held that it lacked subject ma t t e r jurisdiction over the suit. Id. at 13. Our court affirmed. Id.

The Supreme Court ag reed that the district court properly dismissed the com p an y ’ s suit for failure to ex haust. Id. at 19–20. However, the Court d isag reed that failure to ex haust deprived the federal courts of subject matter jurisdiction. See id

. a t 1 6 n.8 (“[ T] h e ex haustion rule enunciated in National Farmers U

nion d id not deprive the federal courts of subjectmatter jurisdiction.”). The Court concluded:

[ T] he [ ex haustion] rule is analog ous to principles o f a b s t e n t i on a rticulated in Colorado R iver W

ater C onservation Dist. v

.A L V A R E Z V

. T R

A C Y 10

United States
, 4 24 U. S

. 8 00, 96 S. Ct. 1236, 47 L

. E d

. 2d 483 (1976): even where there is
concurrent jurisdiction in b oth the s t a te a nd federal courts, d eference to state proceeding s renders it appropriate for the federal courts to decline jurisdiction i n certain circumstances. I n Colorado River
, as h ere, strong federal policy concerns favored resolution in the non federal forum.

Id. at 1 6 n.8. According ly

, the Court applied the National Farmers ex haustion rule a nd “stay [ ed] its hand i n o r der to g ive the tribal court a f

ull opportunity to determine its o wn jurisdiction.” Id. at 16 (i n t e r n a l quotation marks omitted). The Court noted some e x c ep t ions, e numerated in National Farmers
, to the ex haustion rule, but rejected the c ompany ’s
arg ument that an ex ception applied. Id

. at 18–19. The Court remanded the case for the d istrict court to determine whether
to stay the case pending further tribal p roceeding s o r dismiss it outrig ht. Id. at 20 n.14.

Since National Farmers and Iowa Mutual

, we have applied the ex haustion rule and required p a r t i es to bring challeng es to tribal c o u r t j u risdiction to the tribal courts before b ring ing the chal l e ng e to f ederal court. See, e.g. , Grand Canyon
, 715 F .3d at 1 200–01; Burlington N. R.R. Co.

v. Crow Tribal Council

, 940 F .2d 1239, 1247 (9th Cir. 1991). I n doing so, we have observed t h a t , even thoug h e x haustion is not a “jurisdictional p rerequisi t e, ” Iowa Mut.
, 480 U.S. at 16 n.8, ex haustion is “a pre requisite to a federal court’s exercise o f its jurisdiction,” Grand Canyon
, 715 F .3d at 1200 (emphasis added). W e have a lso noted that some ex ceptions to the rule may

apply under certain circumstances. Id.A L V A R E Z V

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A C Y 11

Aside from the tribal c o u rt jurisdiction issue, we have also relied on National Farmers and Iowa Mutual t o d e fi n e the
scope o f the e x haustion rule in the I CRA/habeas c ontex t. See Jeffredo

, 599 F .3d at 9 18; Selam

, 134 F .3d at 953. I n keeping with National Farmers
, we have observed “that ex haustion o f [ I CRA] c laims is not an inflex ible r equirement.” Selam

, 134 F .3d at 953 (internal quotation marks omitted). W e r ecog niz e that:

A balancing p rocess is eviden t ; that is weig hing the n eed to p reserve the cultural identity of the tribe by streng thening the authority of the tribal courts, ag ainst the need
t o i m m e d i a t e l y a d

j u d i c a t e a l l e g e d deprivations of indivi d u a l rig hts. Thus this Court mu st determine whether ex haustion is appropriate in the case at bar.

Id. I n lig ht of the strong p resumption a gainst “ assuming jurisdiction o ver unex h austed claims” in the tribal contex t, the b a lance will shift in favor of not requiring ex haustion only if one of the limited ex c eptions t o the ex haustion doctrine applies, or if the petitioner ca n s h ow that the unex hausted tribal procedure is n ot consistent w ith the I CRA. See id. at 953–54.

W e have recog niz ed th a t some of the e x haustion

ex c e ptions announced in National Farmers may apply in the habeas c ontex t to ex c use a p etitioner’s failure to ex haust. Id.
at 954. W e h ave not required ex haustion where “the litig ant

was able to show either that [ (1)] ex haustion would have been fut i l e or that [ (2)] the tribal court of appeals offered no adequate remedy .” Id.A L V A R E Z V

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A C Y 12

I n Selam

, we applied the ex ha u s t i o n doctrine in a case very similar to Alvarez ’ s. T h ere, t h e p e titioner broug ht a number of I CRA c laims to the d istrict court , but h ad previously failed to b ring one of the m t o t h e tribal court o f
app e a l s. Id. at 953. As a result, the d istrict court (on the
mag istrate judg e ’s recommendation) refused to hear the claim. Id. W e aff

i r med. Id. at 954. W e noted the strong comity and efficiency concerns underly ing the e x haustion doctrine and t h e n e ed to balance those concerns ag ainst the petitioner’s individual rig hts. I d

. a t 953. W e declined to “assume jurisdiction” over the petitioner’s unex h a u s ted claim and r e a s o n ed that the petitioner was a member of the tribe, convicted for crimes committed o n the reservation ag ainst other I ndians. Id. W e observed that a tribe’ s r i gh t to selfg overnment “includes the rig ht to prescribe laws appli c a b l e to tribe members and to en f o rc e those laws by criminal sanctions.” Id. at 9 53–54. As such

, a member I n dian “ is bound to follow the p rocedures of the t ribe if they a re consistent with the [ I CRA] .” I d. at 954 (emphasis omitted). W e concluded that the tribe’s appellate p r ocedu r e s were consistent with the I CRA, because the tribe had twice informed the petitioner o f his rig h t to appeal. I d. W e rejected the p e titioner’s arg u ment that e x haustion w ould be futile or that the appellate process w as inadequate, concluding that petitioner “demonstrated neither.” 4 Id.

4 T h e d issen t co n ten d s th at A lv arez’ s case is distin g u ish ab le f ro m S ela m b ecau se, in its v iew

, A lv arez h ad n o ad eq u ate rem ed y in trib al co u rts. T h e d issen t cites tw o b ases f

o r d istin g u ish in g S

ela m f ro m th is case: (1 ) Selam

w as rep resen ted b y co u n sel at trial an d (2 ) t h e trial j u d g e in f

o rm ed Selam

o f h is rig h t t o ap p eal d u rin g sen t en cin g

. Id

. T h e f irst p o in t w as irrelev an t to o u r an aly sis in S

ela m

. T h e seco n d p oin t h ad n o th in g to d o w ith w h eth er S elam h ad an ad eq u ate rem ed y in trib al co u rt. S ela m , 1 3 4 F.3 d a t 9 5 4 (d iscu ssin g , s ep arately

, S elam ’ s k n o w l ed g e o f h is rig h t to ap p eal an d th e ad eq u acy o f h i s rem ed y ). W e rej ected Selam ’ s arg u m en t th at “ ex h au stio nA L V A R E Z V

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Here, a s in Selam

, t h e i n t erests of comity and efficiency convince us to decline to ex ercise jurisdiction over Alvarez ’s claims. L ike the petitioner in Selam

, Alvarez is a Community member, convicted of a cts committed on the reservation
ag ainst other Community mem b ers. According ly

, the Community ’ s rig ht of self-g overnment includes the ri g h t to enforce its laws ag a inst Alvarez

. Alvarez

, as a Co m m u n ity member, was required to f ollow Community p rocedure a nd bring an appeal within five day s as prescribed by G ila River I ndian Community Code § 2.1236. Alvarez d oes not dispute that the Defendant’s Rig hts form was attached to his criminal complaint and read to him at his arraig nment. N o r does he dispute that he acknowledg ed that he understood the rig hts set forth in the form. Yet, he failed to comply with the five-day requirement. F urther, Alvarez failed to bring his claims in his motion to commute his sentence. Althoug h we acknowledg e that a motion to c ommute mig ht n o t have been the appropriate vehicle to raise I CRA claims, this fact only hig hlig hts Alvarez ’s failure to bring t h e claims on direct appeal. As a result of this failure, the Community courts have

never had an opport u n ity to hear Alvarez ’s claims a nd “rectify any errors it may have m a d e

. ” See Selam

, 134 F .3d at 953.

Alvarez offers n o ex planation for his failure to e x haust b y bringi n g h is claims on direct appeal. As such, h e h as failed
to demonstrate tha t d i re ct appeal would have been futile o r that the Community court of appeals would not have provided

w o u ld h av e b een f

u tile or th at th e trib al co u rt o f ap p eals o f fe r ed n o ad eq u ate rem ed y ” f

o r o n e reaso n : “ Selam

. . . d em o n s trated n eith er.” Id

. T h e sam e is tru e o f

A lv arez.A L V A R E Z V

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A C Y 14

an adequate remed y

. 5 I ndeed, the r e c ord demonstrates that Community procedures a llowed Alvarez to seek relief from his con v iction and sentence. 6 Althoug h the district court f o und that the futility ex ception applied to a mot i o n t o commute, which finding we review only for clear error , see Grand Canyon
, 7 15 F .3d a t 1 2 0 0
, it d id not make a finding

5 W e ack n o w l ed g e, as w e d id in S

ela m , t h at A lv arez co u ld n o t n o w b rin g h is claim s “ b ecau se trib al ap p ellate p ro ced u re o n ly en titled h im to ap p eal

w ith in [f iv e] d ay s o f h is co n v ictio n .” 1 3 4 F.3 d at 9 5 4 n .6

. T h is d o es n o t ch an g e o u

r co n clu sio n , b ecau se:

if w e w ere to assu m e j u risd ictio n o v er an u n ex h au s ted claim so lely o n th e b asis th at it is n o w to o late (“ f u tile”) f o r [A lv arez] to brin g it, t

h is w o u ld ev iscerate th e trib al

co u rt ex h au stio n req u irem en t- at least in cases w h ere p arties h av e a lim ited p erio d o f tim e in w h ich to f ile an ap peal. T h eref

o re, w e declin e to co n s id er th e ap p eal of

a j u d g m en t in th e trib al co u r t s fu tile j u st b ecau se th e d issatisf ied p arty h as n eg lecte d to f ile a tim ely
ap peal. Id

.

6 Gila Riv er In d ian

Co m m u n ity Co d e § 2 .1 3 2 6 (H) read s:

A f ter h earin g th e ap p eal th e ap p ellate co u rt sh all issu e

a ru lin g o n

its f in d in g s an d m ay :

(1 ) A f f irm th e j u d g m en t o f

th e lo w er co u rt; o r

(2 ) Ord er th e case retu rn ed to th e lo w er co u rt f o r a

n ew trial; o r

(3 ) Red u ce th e sen t en ce im p o s ed b y t

h e l o w er

co u rt; o r

( 4 ) Ru le th at th e d ecisio n o f th e lo w er co u r t b e

rev ersed an d th e case d ism issed

.A L V A R E Z V

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A C Y 15

reg arding the fut i lity o f Alvarez ’s direct appeal. As such, there is no finding to which we owe deference on this point.

F urther, Alvarez h as failed to show that the Community ’s appeals process is not consistent w i t h the I CRA. The Community requires that people d e siring to appeal their convictions do so within f ive day s. Althoug h this time period is short, the time-limit is not unreasonable, and t h e I CRA does not require any

thing more of the Community

. 7 T h us, b e cause Alvarez h a s n ot d emonstrated that an ex haust i o n

ex c e ption applies or that the Community ’s appeals process is inconsistent with the I CRA, Alvarez has failed t o overcome the strong presumption of r equiring f u l l ex haustion of tribal remedies. Therefore, we require full e x haustion in this case

a n d a re “ persuad[ e d]

. . . not to assume jurisdiction o v e r ” Alvarez ’s claims. See Selam , 134 F .3d at 953.

II.

A l v a r e z arg ues that we should n ot apply the ex haustion doctrine, b ecause the Community did not raise Alvare z ’s failure to app eal in its motion to dismiss for lack o f

7 T h e d issen t p resen ts th e ex t rem e h y p o th etical th at a trib al co u rt co u ld im p lem en t a fi v e -m in

u te (o r th irty

- seco n d ) tim e- lim it to ap p eal an d th ereb y f orestall a p riso n er’ s rig h t to h a b eas co rp u s rev iew

, becau se th e p riso n er w ou ld n ev er b e ab l e to ex h au st trib al rem ed i es. Ho w ev er, in su ch

an ex t rem e case, th is co u rt w o u l d n o t be b o u n d b y su ch a rid icu lo u s p ro ced u re. In s tead

, w e w o u ld b e au th o rized to h old th at su ch a sh o rt tim elim it is co n trary to ICRA § 1 3 0 2 (a)(8 ) (p ro h ib itin g d ep riv atio n o f lib erty

w ith o u t d u e p ro cess o f law ). T h e f iv e d ay tim e- lim i t in th e p resen t case is h ard ly c o m

p a r a b le to th e f

iv e- m in u te lim it raised b y th e d i s sen t. T h o u g h th e ex act lin e b etw een w h at i s an ap pro priate tim e- lim i t an d w h at is to o sh ort is d i f

f icu lt t o d eterm in e, it is u n n ecessary f o r th e d eterm in atio n

o f t h is case. Here, A l v arez r e c e i v e d n o tice o f th e tim e- lim it f or ap p eal,

an d w e h old th at th e tim e- lim it w as ap pro p riate u n d er th e ICRA

.A L V A R E Z V

. T R

A C Y 16

ex h aust i o n

. According to Alvarez

, the Community waived the e x haustion defense, and our ap p l i c ation of the doctrine would b e an a

buse o f discretion under W ood v

. M i lyard

, 132 S. Ct. 1826, 1834 (2012). W e reject Alvarez ’s
arg uments. O ur application of the e x haustion r ule is consistent with W

ood

. F u rther, c omity and tribal selfg ov ernment concerns warrant application of the doctrine, despite the Community ’ s failure to raise the direct appeal issue.

A. Wood does not bar application of the exhaustion rule in this case.

W h ere a trib e fails to raise the ex haustion defense in
response to a habeas petition, w e may n e vertheless con s i der the defense u nless the tribe has “ d eliberate[ ly ] waive[ d ] ” it. See id. at 1834. A tribe deliberately waives the

nonex h austion defense when it strateg ically w i t h h olds it o r i n tentionally chooses to relinquish it. Id. at 1833–3 5

. Fo r

ex a mple, in W

ood

, the Supreme Court h e l d t hat the court o f appeals abused its discretion where i t s u a sponte raised the
statute of limitations defense in a h a b e a s c a se. Id. at 1834. The c ourt reasoned that the state’s failure to raise the defense “did n ot stem from an ‘inadvertent error.’” Id. at 1835. Rather, “the Stat e t w i c e informed the District Court that it [ would] n ot c halleng e ” the petition’s timeliness. Id. at 1834. I n doing so, the state “ deliberately steered” the district court away from the statute of limitations issue and toward the merits of the petitioner’s claims. I d. at 1835.

I n this case, our a p p l i cation of the ex haustion doctrine does not contravene W

o od

. W ith reg ard to Alvarez ’s failure
to appeal, there is no in d i c ation in the record that the Community deliberately waived t h e ex haustion defense.A L V A R E Z V

. T R

A C Y 17

Unlike the state i n W ood

, the Community challeng ed Alvarez ’ s nonex hausted p etition b y filing a motion to dismiss. 8 True, the petition did n ot a ddress A lvarez ’s failure
to a ppeal, but this omission is quite different from the state’s

“ s trateg ic[ ] withhold[ ing ] ” of the ex haustion defense i n W ood

, in which the state “ deliberately steered” the d i s t r i ct court a way from the ex haustion issue. 9 Id. at 1834–35. A nd

8 We d o n o t, as th e d issen t co n t en d s , h o ld th at “ a state o r trib e can o n ly

w a i v e t h e d ef

en se b y s ay in g so ex p l icitly .” W e sim p ly req u i re, as th e Su p rem e Co u rt do es, ev id en ce th at th e state o r trib e “ k n o w i n g ly an d in tellig en tly relin q u i sh ed ” its ex h au stio n d ef en s e, as o p p osed to h av in g

“ i n ad v erten [tly ]” o v erlo o k ed it. 1 3 2 S. Ct. at 1 8 3 2 n .4
, 18 33 (alteratio n in o rig in al).

9 T h e d issen t’ s attem

p t t o an alo g i ze th e f

acts o f th is case to W

o o d m isses th e m ark

. Giv en th e Co m m u n ity ’ s m o tio n to d ism iss f o r f a i l u re to

ex h au st, it w o u ld b e illo g ical to co n clu d e th at th e Co m m u n ity

, lik e th e state in W o o d

, “ strateg ically w ith h eld th e

. . . d ef en se.” S ee W o od

, 1 3 2 S. Ct. at 18 3 4

. In an ef

f o rt to av oid th i s ob v io u s co n clu sio n , th e d i ssen t tak es

a m ore n u an ced

, u n su

p p o rted

- by

- case- l aw ap p ro ach

, arg u in g th at t h e Co m m u n ity “ strateg ically w i t h h eld ” o n e arg u men t th at su p p orted th e f ailu re- to

- ex h au st d ef

en se.

T h e d issen t s p ecu lates—as i t d oes so m u ch t h ro u g h o u t i ts

o p in io n —th at th e Co m

m u n ity w ith h eld th e arg u

m en t th at A lv arez f

ailed
to a p p e al, b ecau se t

h e Co m m u n ity h ad “ d o n e ev ery th in g in its po w er to p rev en t A lv arez f

ro m a p p e a l in g h is co n v ictio n .” Dissen t at 4 1. T h e p ro b l em , o f co u rse, is th at th is th eo ry f i n d s n o su p p o rt in th e reco rd

. S

ee Da y v. McDo n o u g h

, 5 4 7 U.S. 1 9 8
, 2 1 1 (2 0 0 6 ) (“ [N]o th in g in th e reco rd

s ug g e sts th at th e State ‘ strateg ically ’ w ith h eld th e d ef en se o r ch o se t o relin q u ish it.” (em

p h asis ad d ed )). Ev en i f th is th eo ry h ad so m e b asis in th e reco rd

, w

h at co u ld th e Co m m

u n ity p o ssib ly g ain b y n o t arg u in g th at A lv arez f ailed to ap p eal?

In W o o d

, th e state in ten t io n ally relin q u ish ed its d ef en se, b ecau se i t h ad m ad e a “ delib erate d ecisio n to p ro ceed straig h tw ay to t h e m erits.” S

ee 1 3 2 S

. Ct. at 1 8 3 4

. C ertain l y t h e C o m m un ity d id n o t m ak e th at sam e d ecisio n

. A f

ter all, f ilin g a m o tio n to d ism i ss w o u l d be a rath er u n u su alA L V A R E Z V

. T R

A C Y 18

even thoug h f

ederal c o u r t s commonly infer waiver from the failure to raise an issue, Day
, 547 U.S. at 202, W ood instructs that the ex haustion doctrine “is founded on concerns broader than those o f the parties; in particular, the doctrine fosters respectful, harmonious relations between the state and federal judiciaries.” 132 S. Ct. at 1833. F or that reason, in

ex c e ptional cases, W

ood p ermits federal courts to raise the

ex h austion defense sua sponte unless it has b een intentionally relinquished. 1 0 Id. at 183 3
, 1835. There is no evidence o f such an intention here.

The dissent arg u es that finding the Community forfeited, rathe r t h an waived, the defense is not enoug h, because Alvarez n ever had a fair o pportunity to respond to o ur theory

o f the case. See id. at 1833–34. The record tells a d i ff e re n t story

. As the dissent acknowledg es, we issued an order prior
to oral arg ument directing that “the parties should be prepared

w ay to “ d elib erately steer[] t h e District Co u rt aw ay f

ro m th e q u estio n an d
to w ard th e m erits o f

[th e] p etitio n .” Id

. at 1 8 3 5

. W e f in d n o th i n g in th e

reco rd to su

p p o rt t h e assertio n th at w

h en th e Co m

m u n ity m o v ed t o d ism iss th e case fo r failu re t o ex h au st it in ten tio n ally relin q u ish ed th e arg u m en t th at A l v arez f

ailed to ap p eal. T h is lead s u s t o co n clu d e th at th e C o m m u n i ty ’ s f ailu re to raise th e arg u m en t w as m o re “ in ad v erten t” th a n

“ delib erate.”

10 N o tin g th e Co m

m u n ity ’ s f ailu r e t o r a i s e ex h au stio n o n ap p eal, th e d issen t su g g ests th at w e sh o u ld ru l e o n th e m erits b ecau se “ w e’ d be d o in g

o n ly w h at th e Co m

m u n i ty ask ed u s to d o in t

h e f irst p lace.” T h e d i ssen t’ s ratio n ale p u ts th e cart b e fo r e t h e h orse. T h e q u estio n o f w h eth er w e sh o u ld raise th e ex h au stio n d ef en s e “ o n [o u r] o w

n m o t i o n , ” W

oo d

, 1 3 2 S. Ct. at 1 8 3 4
, o n ly arises b ecau s e th e g ov ern m en t f ailed to raise th e issu e

o n ap p eal. If w e an sw ered th e q u estio n o f w h e t h e r w e sh o u l d raise

ex h au stio n su a sp o n te b y ask i n g w h eth er th e g o v ern m en t raised th e issu e

o n ap p eal, th e an sw er w o u ld alw ay s b e n o

. T h e d issen t’ s lo g i c w ou ld

m ak e th e d iscretio n

p rescrib ed b y W

o od illu so ry

.A L V A R E Z V

. T R

A C Y 19

to address whether this court has jurisdi c tion over this appeal.” We specifically cited 25 U.S.C. § 1303 and Jeffredo

v. Macarro
, 599 F .3d 913, 918 (9th Cir. 2010). Id. The only discussion o f jurisdiction a t that cite in Jeffredo establishes “that a litig ant must first ex haust tribal remedies before
p r o perly bring ing a petition for writ of h abeas c orpus.” 599 F .3d a t 918. Alvarez responded by filing a supplemental brief, in w h i c h h e arg ued that “to the ex tent ex haustion is a

co mponent of the d istrict court’s subject-matter jurisdiction here, that requirement is satisfied.”

At oral arg ument, t h e c o u rt discussed Alvarez ’s r ig ht to appeal with c ounsel for both parties. The Community a rg u ed that Alvarez had failed to ex haust his tribal remedies, because “the fact of the matter is he did not directly appeal his conviction.” Alvarez ’s counsel responded by arg uing

, as the dissent a rg ues, that the Community waived the arg u ment that Alvarez failed to appeal. Alvarez a rg u e d (ag ain much like the dissent) that, under the Supreme Co urt’s decision in W ood

, the c ourt c ould n ot raise failure to ex haust sua sponte , because it had been waived r a ther than forfeited. This series of events convinces us that Alvarez was “accorde d a f ai r opportunity to present his position

. ” W ood

, 132 S. Ct. at 1834; see a lso Day
, 547 U.S. at 210–11 (requiring only “notice and a fair opportunity ” to arg ue in favor of waiver).

B. The interests of com ity and t ribal self governm ent

w a rrant application of

the exhaustion rule.

Granberry v. G reer , 481 U .S. 129, 134–35 (1 9 8 7), discussed in W

ood

, helps g uide our discretion in d etermining whether to address the non e x h a u stion issue. I n Granberry

, t h e Court rejected the petitioner’s arg ument that a state’s failure to r aise the ex haustion defense b arred the district courtA L V A R E Z V

. T R

A C Y 20

from raising it. I

d. at 131–32. The Court reiterated its view that “ comity [ is] the basis for the ex haustion doctrine.” Id. at 1 3 4

. According ly

, in e x ceptional cases, courts may ex c u s e th e state’s d

uty to raise the ex haustion d efense a nd “determine whether the i n t e r ests of comity and f ederalism will be better served by a ddressing the merits forthwith or b y requiring a series of addi t i o n a l state and district court proceeding s . . . .” Id.

Our own precedent indicates that cases implicating tribal sovereig nty and the tribal ex hausti o n requirement a re

ex c e ptional. I n Allstate Indem n i ty Corporation v. Stump
, 191 F .3d 1071 (9th Cir.), amende d 1 97 F .3d 1031 (9th Cir. 1 9 99), we recog niz ed that, because tribal sovereig n ty is o f critical importance, the tribal ex h a u stion requirement is appropriately addressed sua sponte

. 191 F .3d at 1073 (citing United S tates v

. Tsosie
, 92 F .3d 1037,1041 (10th Cir. 1996)). I ndeed we have found the tribal ex h au s t i o n requirement o f such import that we h ave enforced it e v e n w h e n it was not raised until after we h ad decided the case a n d issued an opinion. See M

arceau v

. Blackfeet Tribal Authority

, 5 40 F .3d 916, 920 ( 9th Cir. 2008). Granberry itself implied that tribal

ex h austion is ex ceptional and not subject to waiver. Thoug h Granberry decided an issue pertaining to the ex haustion o f
state remedies, the Court b riefly compared the state

ex h austion requirement to the n a t ure of tribal ex haustion. 481 U.S

. a t 1 3 0 & n.4. T he comparison is r evealing : the Court character i z e d the tribal ex haustion requirement as an “inflex ible b ar to consideration of the merits” that may not be waived. Id

. Althoug h the Court’s bri ef discussion o f tribal

ex h austion is dicta, we recog niz e , as do our sister circuits, that it demonstrates “ the heightened sensitivity to tribal sovereig nty p resent in federal-tribal comity cases.” Smith v. Moffett

, 9 47 F .2d 442, 445 (10 t h C ir. 1991) (emphasisA L V A R E Z V

. T R

A C Y 21

a d d ed). 1 1 Requiring ex haustion of tribal remedies not o n l y fosters m utual r espect between sovereig ns in a manner similar to a

bstention in favor of state cour t s , s e e Iowa M ut. In s

. Co.
, 480 U.S. at 16 n.8, but also promotes tribal selfg ov e rn m ent throug h the development of the tribal court sy stem. Id

. at 16–17. Thus the tribal ex haustion doctrine

11 A s th e T en th Circu it ex p lain ed in S mith

, trib al ex h au stio n i s of
p articu lar i m

p o rtan c e am o n g th e ab sten tio n d o ctrin es as, in ad d itio n to f o rw ard in g co m ity in terests sim i lar to t h o s e f o rw ard ed b y resp ect f

or state

co u rts, req u i ri ng e x h au s tio n o f t rib al rem ed ies ad v an ces Co n g ress’ s in terest in th e dev elo pm en t o f trib al so v ere i gn t y

. 94 7 F.2 d at 4 4 5 (ex p lain in g th at, in reco g n itio n o f Co n g ress’ s in ten t, th e Su p rem e Co u rt

“ assid u o u s ly ad v o cate[s] f

ed eral ab sten tio n

in f av o r o f trib al co u rts”).

Oth er circu its h av e also read Su p rem e C o u rt p reced en t, i n clu d in g Gra n berry

, to im

p ly th at th e t rib al ex h au stio n req u i rem en t is o f sp ecial im p o rtan ce. S

ee Bo wen v. Do

yle

, 2 3 0 F. 3 d 5 25
, 5 3 0 (2 d C ir. 20 0 0) (d escrib in g Gra n b erry ’ s d icta as ch aracterizin g th e trib al ex h au s tio n ru le

as “ an i n f lex i b le b ar to co n sid eratio n o f th e m erits...b y th e f ed eral co u rt,

. . . req u ir[in g ]

. . . d ism iss[al] w h en it ap p ears th ere h as b een a f ailu re to

ex h au st”); Du n ca n En erg y Co . v. Th r ee Affilia ted

Trib es o f Ft. Berth old Reserva tio n , 2 7 F .3 d 1 2 9 4
, 1 3 0 0 (8 t h Cir. 19 9 4 ) ( a p p r o v in g o f S mith ’ s in terp retatio n

o f Gra n b erry ).

In Ba nk On e, N.A. v. S

h u ma ke

, 2 8 1 F.3 d 5 0 7 (5 th Cir. 2 0 0 2 ), th e Fif th Circu it f o u n d th e trib al ex h au stio n d o c t rin e f ar m o re p o w erf

u l th an th e state co u rt f

av o rin g d o ctrin e o f Co lo ra d o River W

a ter Co n serva tio n D i s t rict v. Un ited S ta tes , 4 2 4 U.S. 8 00 (1 9 7 6 ). A s th e Fif th Circu i t

ex p lain ed

, alth o u g h Co lo ra d o River re liev es th e f

ed eral co u rts o f th eir

“ u n f lag g in g ob lig atio n ” to ex ercise th eir j u risd i ctio n o n ly in ex cep tio n al circu m s tan ces, t r i b al ex h au stio n “ su b o rd in ates th e f

ed eral co u rt’ s

o b lig atio n to ex ercise its j u risd ictio n to t h e g reater p o lic y o f pro m o tin g t r i b al self

- g o v ern m en t.” Ba n k On e , 2 8 1 F.3 d at 5 1 4

– 1 5

. T h eref o re,

“ C o lo ra d o River ab sten tio n is th u s th e ex cep tio n to th e ru le, w h ereas trib al

ex h au stio n

is th e ru l e rath er th an

th e ex cep t io n .” Id

. at 5 1 5

.A L V A R E Z V

. T R

A C Y 22

implicates unique and “ex ceptional” concerns bey ond those implicated in federal-state comity cases. 1 2

F u r t h e r, the Supreme Court recog niz ed in Santa Clara Pueblo v. Martinez
, 4 36 U.S. 4 9, 7 1 (1978), that respect for tribal c ourts is particul a rl y important when adjudicating I CRA c laims, n otwithstanding that the I CRA is a federal, not tribal, law. 1 3 N o t only does adjudicating I CRA claims in federal court necessarily constitute an interference with tribal autonomy a

nd self-g overnment, 436 U .S. at 59, but resolution of statutory issues under the I CRA will “frequently depend on questions of tribal tr a dition a n d custom which tribal forums
may be in a better position to eval u a t e than federal courts.” Id

. at 7 1

. We recog niz e that the I CRA provides the mechanism of habeas co rpus to correct abuses in the administration of criminal jus t i c e

. Id. B ut, even when evaluating a habeas petition, we m u s t be mindful of our oblig ation to avoid “ intrud[ ing ] needlessly o n tribal selfg overnment.” Id.

Here, our decision to decline to assume jurisdiction over Alvarez ’s claims is consistent with the comity an d self12 T h e d issen t arg u es th at w e are o blig at i n g fe d e r a l co u rts to alw ay s req u ire f u ll ex h au stio n in t

rib al h ab eas cases. Ho w ev er, th is is s im p l y n o t th e case. A lth o u g h ou r h o ld in g th at trib al cases are ex cep tio n al p ro v i des f ed eral co u rts th e ab ility t o raise th e ex h au stio n req u irem en t su a s p o n te in trib al cases, it d o es n o t req u ire th em to do so

. In stead

, f ed eral co u rts m

u st

ex am in e th e f

acts o f each case an d ap p ly th e b alan cin g test u s ed in Part I

o f th i s Op i n io n

to d eterm in e if

req u irin g f

u ll ex h au stio n

is ap p ro p riate.

1 3 Sim ilarly

, w e h av e f

o u n d th at req u i rin g trib al ex h au stio n is “ th e m ost ap p ro p riate actio n ” ev en w h en a case o n l y i n v o lv es q u estio n s of f ed eral law

. U n ited S t a tes v. Pla in b u l l

, 95 7 F.2 d 72 4
, 72 8 (9 th Cir. 1 9 9 2 ). A s w e

ex p lain ed in Pla i n b u ll

, th at f ed eral l aw is at i ssu e is “ i m m aterial” w

h en

“ co n sid eratio n s o f co m ity req u ire t h e ex h au stio n o f trib al rem ed ies.” Id

.A L V A R E Z V

. T R

A C Y 23

g overnment concerns u n d e rly ing the tribal e x haustion d octrine g e nerally and its application in the I CRA conte x t specifically

. I f any

thing

, the view of Cong res s a n d the S u preme Court toward tribal courts’ role in tribal s e l f

g overnment, discussed ab o v e , m akes a strong er case for an

ex h austion r equirement than the federalism concerns dis c u s s e d in W

ood and Granberry

. According ly

, w e see no

reason to allow Alvarez to by p ass Community procedures a nd proceed to fe d e r a l court in the first instance. See Selam

, 134 F

. 3d a t 953–54; cf. Harrington v. Richter

, 131 S. Ct. 770, 787 (2011) (ex plaining that, in the habeas contex t, one of the
purposes of the ex haustion r equirement is to ensure that “state
p r o c e eding s a

re the c e ntral process, not just a preliminary step for a later federal habeas proceeding ”).

The nature of Alvarez ’s claims streng then our conclusion

a nd further convince us that “comity and judicial efficie n c y

. . . make it appropriate f o r [ us] t o i n s i s t on complete

ex h austion.” See Granberry

, 481 U.S. at 135. Alvarez bring s his rig ht to a jury trial claim under the I CRA, 2 5 U .S.C. § 1302(a)(10). Section 1 302(a)(10) m a k es it u nlawful for a tribe to “deny to any person a ccused of a n offense punishable by imprisonment the rig ht, upon request, to a trial by jury of
not less than six persons.” Alvarez a c knowledg es that the Community informed him of his rig ht to a jury trial, but
arg ues that it n ever told h im that he had to request one. Thus,

a c cording to Alvarez

, f

ailure to request a jury trial did n o t

co n s t itute voluntary

, knowing

, a nd intellig ent waiver of the

r i gh t as required by the Constitution. See United States v. Duarte-Higareda , 113 F .3d 1000, 1002 (9th Cir. 1997).

W e h ave not previously had occasion to determine t h e scope of a d efendant’s rig h t to a jury trial under the I CRA. F e d e r a l C o n s t i t u t i o n a l j u r i s p r u d e n c e i n f o r m s o u rA L V A R E Z V

. T R

A C Y 24

interpretation of the I CRA where the r ig hts are the same. See Randall v. Y

akima Nation Tribal Court
, 841 F. 2 d 897, 900 ( 9 t h Cir. 1988). However, the rig hts afforded by the I C R A

are n o t coterminous with the Constitution where the lang uag e and the history

of the I CRA and the Constitution differ. See Santa Clar a Pueblo

, 436 U.S. at 62–63; Randal v. Y akim Nation Tribal Cou rt , 841 F .2d 8 97, 900 (9th Cir. 1 988) (ex plaining that when inter p reting the I CRA’s due process clause, “ courts

. . . [ have] correctly sensed that Cong ress did

n o t intend that the

. . . due process principles of t h e Constitution disrupt settle d tribal customs and traditions.” ( q u oting F

. Cohen, H

andbook o

f Federal Indian Law
, 6 7 0 (1982 ed.))); Tom v

. Sutton
, 533 F .2d 1101, 1103–04 (9th Cir. 1 9 7 6 )

. B ecause the I CRA, by its plain lang uag e, requires a defendant to request a jury

, it diffe r s s i gnificantly from the Six th Amendment rig ht to a jury trial. See 25 U .S.C. § 1302(a)(10). A s such, w e cannot resolve Alvarez ’s
arg ument by consulting Six th Amendment c a s e law alone. F urther, n o federal court has determined whether a defendant

can knowing ly and voluntarily waive h is rig ht t o a jury trial under the I CRA if the tribe never told the defendant that such

a trial was available only “upon request.” As a r esult, Alvarez ’s jury trial claim presents a s ig nificant a nd unresolved question of federal law.

I f Alvarez had pursued his triba l remedies, it is possible that a tribal c our t w o u l d have g ranted relief, and we would
not be here today

. At least two o ther tribal c o u r t s h a ve ag reed w ith Alvarez ’ s arg u ment that a tribe must inform a defendant o f his rig ht to a j u r y “upon request” to satisfy the knowin g a nd intellig ent requirement. See, e.g. , McGrady v

. Three Affiliated Tribes

, 31 I ndian L

. Rep. 6058, 6058–59 (N. Plains I n tertr. Ct. App. 2004); Confederated Salish & Kootenai Tribes v. Peone
, 16 I ndian L

. Rep. 6136, 613 6 –37A L V A R E Z V

. T R

A C Y 25

(C.S. & K. Tr. Ct. 1989). E ven if the Community courts did not g rant Alvarez the relief he seeks, their full consideration of the issues and development of the record could have aided

our decision and promo t e d the o rderly administration o f justice. See Nat’l Farmers , 471 U.S. a t 856 (ex plaining that the tribal court’s full development of the record would aid the federal court, even thoug h the trib a l court would be considering a question o f federal law). Thus judicial efficiency considerations, as well as “our g enera l d u t y to avoid deciding unnecessary issues,” Turner v. U.S. Parole Comm’n
, 810 F .2d 612, 6 13 n.3 ( 7 t h Cir. 1987), counsel in favor of enforcing

the ex haustion requirement here.

The dissent breathlessly accuses us of treating the parties “dispar a t e [ l y ] .” How, the dissent asks, could we “forg ive[ ] the Community ’s double-default but hold[ ] A l varez strictly
to his sing le oversig ht”? W e too w ould be troubled—if this

were not a g ross oversimplification of the issues presented in this case. The parties’ defaults were n o t created equal: A l v a rez f

ailed to ex haust; the Community inadvertently forfeited a

defense. These doctrines are animated by wholly different rationales. Unlike forfeiture, ex haus t i o n “ i m plicates values bey ond the concerns of the p arties.” W ood

, 132 S. Ct. at 1833.

The dissent ig nores this distinction by citing non-habeas,

non-ex haustion, non-I ndian law c ases that appl y w a iver to support its contention that we are being inconsistent with past decisions. T hese cases may fit the dissent’s carefully crafted narrative, but they do littl e to support its contention o f inconsistency

. A lthoug h noticeably absent from th e c asesA L V A R E Z V

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cited by the dissent, the interests of c o m i t y a nd tribal selfg overnment are critical to our conclusion here. 1 4

CONCLUSION

Alvarez failed to ex haust h i s claims and, thereby

, failed
to meet this “prerequisite” of our e x ercise of j u r i sdiction. Alvarez has n ot shown that the unavailabil ity or f utility o f direct a ppeal e x cuses the ex haustion requirement. Nor has he shown that the Community ’s a ppeals process d id not comply with the I CRA. Althoug h the Community failed to raise Alvarez ’s lack of dire c t a p p e a l in its motion to dismiss, we

never theless consider the defense under W ood a nd Granberry

. The strong comity and judicial efficiency interests at stake warrant federal ab s tention. W e, therefore, decline to assume jurisdiction over Alvarez ’s claims.

AF F IRMED

.

14 T h e dissen t d ism isses th e co m ity in terests at stak e h ere b ecau se, in its

v iew

, th e “ Co m

m u n ity ’ s p ro cess seem s to be d esig n ed to d en y co n v i cted d ef en d an t s a f

air ch an ce t o ap peal.” B u t as w e h av e said i n th e co n tex t of In d ian law

, co m i ty in v o lv es “ resp ectin g a s o v ereig n ’ s p ro ced ur e s an d

av o id in g p atern alism .” Bird v. Gla cier Elec. Co o p ., In c. , 2 5 5 F.3 d 1 1 3 6
, 1 1 4 3 (9 th C ir. 2 0 0 1 ); S

ela m , 1 3 4 F .3 d at 9 5 3

– 5 4 (“ [E]x cep t to th e ex ten t d em an d ed by th e [ICRA ], t h e s tru ctu re an d p ro ced u re o f [trib al] co u rts

m ay b e determ in ed b y th e trib es th em selv es.”). T h e d issen t seem s to b e say in g th at i t is w illin g t o resp ect a trib e’ s so v ereig n rig h t to o rd er its o w n p ro ced u res—b u t o n ly if th e d is s e n t a p p ro v es o f th o se p ro ced u res. T h is
tu rn s co m ity o n its h ead an d rep laces it w ith th e v ery p a t e r n a l i s m th e Su p rem e Co ur t h as d isco u rag ed

. S ee Io wa Mu t. In s. Co

. , 4 8 0 U .S. at 1 4

– 1 9

. In d eed

, th e dissen t sp rin k l es its an aly s is w ith dero g ato ry rem ark s ab o u t th e trib e’ s j u d icial pro cesses, ev en im p l y in g th at trib al j u d i c i a l

o f f icials are less su ited f

o r th eir j ob s t

h an “ m arsu

p ials.” Su f

f ice to say , w e th in k th e trib e, a so v ereig n

n atio n , is m o re d eserv in g o f o u r resp ect.A L V A R E Z V

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KOZ I NSKI , Circuit J udg e, dissenting :

W h en we take the j u d i c i a l oath of office, we swear to “a dminister justice without respect to persons, and do equal rig ht to the poor and to the rich

. . . .” 28 U.S.C. § 453. I understand this to mean that we must not merely be impartial, but must appear to be impartial to a disinteres t ed observer. Today w e do not live up t o t h i s solemn responsibility

. Re l y ing on a g round not raised b y either party h e re or in the district c ourt, we refuse to consider petitione r ’s serious and, in my o p i n i o n, meritorious claims. T h is is only the latest indig nity inflicte d on a criminal defendant who, despite havin g a s eventh-g rade education, was forced to d efend himself at trial; althoug h having the r ig ht to a jury

, w as never told that he had to a s k f o r one; and who was therefore convicted and sentenced to eig ht y ears in prison in a bench trial where neither the prosecution n or t h e judg e lifted a fing er to bring the accusing witness into cou r t. H e’d have had a fairer shake in a tribunal run by marsupials.

I am troubled by the disparate way we treat t h e p a rties. Alvarez and the Community both fa i l e d to raise leg al issues
at the proper time and in the p r oper manner. Alvarez failed
to raise h is jury tria l a n d confrontation claims by way of a direct appeal w ithin the tribal court; the Community failed to raise an ex h austion defense in d istrict court. The Community committed an additional default by also failing to raise th i s issue on appeal—something we’ve repeatedly held is an independently sufficient basis for declining to address it. See,
e.g. , Rivera v

. Peri & Sons Fa r m s , Inc.
, 735 F .3d 892, 901 (9th Cir. 2013) (O’ Scannlain, J

. ); Alliance for Property Rights and Fiscal Resp onsibility v. City of Idaho Falls

, 742 F .3d 1100, 1110 n.7 (9th Cir. 2013) (N.R. Smith, J .); United States v. Anekwu

, 695 F .3d 967, 985 (9th Cir. 2 012)A L V A R E Z V

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A C Y 28

(N.R. Smith, J .); K

r e i s n er v. City of San Diego
, 1 F .3d 775, 778 n.2 (9th Cir. 1993) (O’Scannlain, J

. ).

Th e majority forg ives the Community ’s double-default but holds Alvarez strictly to h is sing le oversig ht. I can’t see the justice in this, but it g ets worse: A lvarez committ ed his def ault when he stood before the Community court without represent at i on. I t’s n ot clear that he was ever a dvised of a rig ht to take a n appeal. B ut if h e was, it happened months before h is trial. A fter h e was convicted and se ntenced to eig ht y ears in prison, he was not r eminded o f h i s rig ht to

a p p e a l; he was g iven no notice-of-appeal form or oth e r g uidance about how to take an appeal. He was i n ca r cerated with n o ready access to leg al mat e r i al s and faced a 5-day filing deadline—shorter than any I ’ve ever heard of.

The Community

, by contrast, was a t all times represented by competent (and presumably well-com p e nsated) counsel. I t was fully aware that failure to ex ha u s t wa s a plausible defense, and raised three separate ex h a u s t i on arg uments in the district c ourt (thoug h not the o ne t h at my colleag ues a re

so taken with). I t then c h ose not to a rg ue ex haustion a t all in its appeal to us.

Co n f r o nted with this c heckered p rocedural history

, we mig ht hold both parties to their d e f aults. That would have an appearance of fairness. Or, we c ould forg ive both parties their defaults, which also seems fair. B ut i f w e d o either o f these thing s, the e x haustion issue drops out, and we must rule

on the me r i t s o f A lvarez ’s petition. T he only way to reach the majority ’s result here is by ex cusing the Community ’s defaults while holding Alvarez strictly to h i s

— w hich is just what my colleag ues do.A L V A R E Z V

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I have read the o pini on many times and disag ree with pretty much every

thing in it, including the n u m e r als a nd punctuation. I ex plain why in the pag es that follow, b ut first I pose a more basic question: How c an a court committed to j u s tice, as our court surely is, reach a result in which t h e litig ant who can afford a l a w y er is forg iven its multiple defaults w hile the poor, uneducated, un-counseled p etitioner has h is f eet held to the f

ire? I attribute no ill will or improper motive to my

ex cellent colleag ues. T h ey are fair, honorable

a n d dedicated jurists who are doing what they earnes t l y believe is rig ht. B ut w e see the w orld very d ifferently

. See,
e.g. , United States v. Pineda-M o reno , 617 F .3d 1120, 1123 (9th Cir. 2010) (Koz inski, C.J

. , dissenting f r o m denial o f rehearing e n b anc). I can find no justification for showing such solicitude for the overdog while g iving the underdog the back of the hand.

I

F ederal courts have a “virtually u nflag g ing oblig ation

. . . to ex ercise the jurisdiction g iven th e m

. ” Colo. River W ater Conservation D i s t

. v. United S tates , 424 U.S. 800, 817 (1976). Althoug h we have recog niz ed a limited ex ception to t h i s rule when habeas petitioners fail to ex haust trib al remedies, “[ t] he e x haustion requirement is not an inflex ible one,” b ut rather “is imposed to f urther the cong ressional g oals of preserving and streng thening native American cultures b y insuring that tribal institutions a r e not denied the opportunity
to resolve tribal disputes or to make tribal policy .” St. Marks

v. Chippewa-Cree Tribe of Rocky Boy Reserv a t i o n , M ont. , 545 F .2d 118 8
, 1189 ( 9th Cir. 1976) (per curiam). According ly

, a respondent may waive a n o n e x haustion defense, see Granberry v. Greer
, 481 U.S. 129, 133 (1987),A L V A R E Z V

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and, even when the d e fe n se is p reserved, we must ex ercise caution in rely

ing on it.

A

1. Generally

, “a [ defense] is f orfeited if not raised in a def endant’s answer or in an amendment thereto.” W ood v. Milyard

, 1 32 S. Ct. 1 826, 1832 ( 2012). I f t h e forfeiture is inadvertent, we have discretion to forg ive it; but we have no authority to forg ive a waiver—a deliberate by p assing o f known leg al theories. See id. a t 1833 n.5 ( citing Day v. McDonough , 547 U.S. 198 (2006)); see also id. at 1832 n.4. The first question, then, is whether the Community ’s failure
to raise Alvarez ’s nonex h austion of direct appeals was a mere oversig ht, or the result of a deliber ate c hoice. The majority concludes it was an oversig ht, b ased on th e f a c t that “the Community challeng ed Alvarez ’ s n o nex hausted petition b y filing a motion to dismiss.” Maj. Op. 16–17.

I draw the opposite inference. The Community ’s motion
to dismiss was based on Alvarez ’s alleg e d failure to ex haust other tribal remedies, but it omitted any mention of Alvarez ’s failure to take a direct appea l

. I t seems perfectly clear that the Community

, counseled by its able lawy ers and intimately f a m i l iar with the record in its own court, thoug ht about

ex h austion a n d k n ew it was an available defense. The applicable max im here is expressio unius est exclusio alterius

. S

e e Antonin Scalia & B ry an A. Garner, Reading Law: The Interpretation of Legal Texts 107–11. Turning their backs on six c en turies of common law ex perience, my colleag ues invent a new max im to fit the occasion: expressio unius est inclusio alterius . W h at g o o d are max ims if judg e s

can stand them on their h e a d s w h enever it suits them? IA L V A R E Z V

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rather d o ubt that B ry an Garner or his venerable co-author would approve of my

colleag ues’ interpretive innovations.

The majority tries hard t o squeez e support from W ood

, but W ood came out the wrong way for that p urpose: The Supreme Court there held that the court of appeals had abused its discretion i n d o i n g just what the majority is doing h ere. The only way W

o od h elps the majority is that the state there waived an e x haustion defense b y ex p ressly telling the district

c o u r t that it chose n ot to assert the d efense. See W ood

, 1 3 2 S. Ct. at 1830–31. T h e maj o r i t y r e a ds W ood as if an affi rm ative statement were the only way a tribe could waive the ex haustion de fense, but if that were the rule, the Court would have said so. I nstead, it announced a far more nuanced rule: “W h en the State [ in o ur case, the Community ] answers

a habeas corpus petition, it h a s a duty to advise the district
court w hether the prisoner h as, in f act, ex hausted all available [ tribal] remedies.” Granberry

, 481 U.S. at 1 3 4

. W here the habeas r espondent fails to raise ex haustion in its “an s w e r o r in an amendment thereto,” the defense i s forfeited, W ood

, 132 S. Ct. at 1832, subject to a “modest e x c e p t ion,” id.

, applicable only in “ex ceptional c ases,” id. at 1832, 1834. Addressing our situation, the Court a d d ed: “That restraint is all the more appropriate when the appellate court itself spots

an issue the parties d id not a ir below, and therefore w ould not have anticipated in developing t h eir arg uments on appeal.” Id. at 1834.

The cauti o n about “ex ceptional cases” and the need for “additional restraint” would have been pointless if the rule

were that a state o r tribe can w aive the defense only b y say ing

so ex plicitly

. B ut the Court eschewed such a mechanical rule. I nstead, it stuck with the long -standing proposition that, whether a claim or defense has been waived “must depend, inA L V A R E Z V

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each case, upon the p a r ticula r facts and circumstances surrounding that case, including the b ackg round, e x perience, and conduct” of the waiving party

. Johnson v

. Zerbst

, 304 U.S. 458, 464 (1938).

This case, in fact, presents a much closer p arallel to W ood than the majority lets o n. The state in W ood r e c og niz ed the possibi l i t y o f a statute-of-limitations defense w hen the district

co u r t raised the issue sua sponte; nevertheless, it “informed the District Court it would ‘ not c halleng e’” the petition on those g r ounds. W

ood

, 132 S. Ct. at 1 830, 1832. Here, the Community recog niz ed the availability of an ex hausti on defense before the district court when it arg ued that Alvarez “has not raised any o f t h e i s s u es in his Petition in the Community Court in the form of a motion to correct his sentences, a motion for c o m m u t ation or a habeas corpus petitio n , ” y et never said any thing about Alvarez ’s failure to file a direct appeal.

I n W ood

, the state d eclined to resusci t a t e t he statute-oflimitations defense o n appeal, c h oosi n g to litig ate on the

me r i t s

. W

ood

, 132 S. Ct. a t 1 831. Here, the Community dropped even the ex haustion defenses it did raise b e low, electing to defend ag ainst Alvarez ’ s a ppeal on the merits. W h en the appellate court in W ood ag ain raised timeliness a s

a po s s ible g round for dismissal and ordered supplemental briefing

, the state dedicated more than two-th i r d s o f its br i e fing to the merits, indicating continued reliance o n its merits defense. Here, when a s k e d t o address ex haustion at oral arg u ment, t he Community ag a in relied on Alvarez ’s failure to file a motion for c ommutation or a habeas petition, but said a lmost nothing ab o u t his failure to take a direct appeal.A L V A R E Z V

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Not only is our case closely analog ous to W ood

, it’s a far
cry from Day
, where the Supreme Court found that the lower
court did not abuse its discretion by raising a timeliness de f ense on its own motion. 5 47 U.S. a t 203–04. Day involved a mistaken concession based on an a rithmetic error: The state f

iled a d ocument stating that the habeas petition was timely

, but this was based on a miscalculation of tolled time,

an error patent on the face of the filing

. The Court described this as “ merely an inadvertent e rror,” and emphas i z ed that “nothing in the record sug g est[ e d ] that the State ‘strateg ically ’ w ithheld the defense or chose to relinquish it.” Id. at 211. Day , in short, was about a mistake.

W h at we have here is no mistake. I t is the omission of a leg al a rg ument based on facts w ell known to both parties. The Community didn’t absent-mindedly overlook e x haustion

or miscalculate a deadline. F ailure to ex haust was part of its d efense strateg y and, in support thereof, it enumerated three

nonex h austed tribal-court r emedies. B ut i t n ever relied on Alvarez ’s most obvious omission: his failure to f i l e a direct appeal. B ecause we must assume that the Community has knowledg e of its own remedies an d f i ling deadlines (knowledg e the majority a scribes to a man with a seventhg rade education who r epresented himself), t his looks very much like a c ase where the Community “ deliberately steered the District Court away from” the d irect appeal issue. W ood

, 132 S. Ct. at 1835. I f W

ood a llows waiver by a

ny thing short of ex press disavowal of a defense, as it surely d oes, then this case is it.

2. B ecause the Community w a i ved a defense based on Alvarez ’s f

ailure to take an appeal, we lack discretion to raise this ex h a u s t i o n defense sua sponte. B ut even if the Community ’ s c onduct d id n ot a mount to a waiver, w e wouldA L V A R E Z V

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still lack d iscre t i o n to consider the defense b ecause W ood ’s second prong

is unsatisfied.

W ood held that only “ wh e re t h e petitioner is accorded a fair opportunity to p rese nt his position, may a

. . . court consider the defense on its own initiative.” W ood

, 132 S. Ct.
at 1 833–34. A lvarez was not “ accorded a fair opportunity to present his position” becau s e h e has never been presented with the majority ’s h omespun theory

. As noted

, t he Community did not r aise a defense g rounded in Alvare z ’s failure to ex haust direct appeals before the d istrict court o r in its briefs on appeal. So Alvarez never ha d a chance to state his p o s i t ion in the customary way —by responding to his opponent’s arg

uments.

A week before oral arg ument, w e issued an order alerting the parties to “be prepared to address whether this court has jurisdiction o v er this appeal,” making specific reference to “25 U .S.C. § 1303 as discussed in Jeffredo v. M a c a r ro , 599 F .3d 913, 918 (9th Cir. 2010).” N o t s u rp rising ly

, the discussion at oral a r g ument concerned whether we have jurisdiction. Whether a court has jurisdiction is a question far different from whether it s hould exercise jurisdiction. B oth concepts have “jurisdiction” in their name but they have little

e l s e i n common. Alvarez therefore had no opportunity to weig h in on i s s ues peculiar to the ex ercise of jurisdiction, such a s whether the Community by passed its e x haustion
arg ument deliberately or whether the interests of comity and efficiency w eig h in favor of abstention.

I f my colleag ues thoug ht we mig ht dismiss the a ppeal on prudential g rounds, they s a i d nothing about it. Alvarez ’s l a w y er h ad no reason to address an issue no one had raised,

nor did the Community

raise the point post-arg

ument in anyA L V A R E Z V

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of its numerous 28(j) letters. The first time Alvarez will have heard the majority ’s theory will be when he reads the opinion, and the first chance h e will have to address it w ill be in his petition for rehearing

. I don’t think that’s what the Supreme Court h ad in mind when it told us that a court may “consider the defense on its o wn i n i tiative” only in cases “where the pet i t i o n er is a ccorded a fair opportunity to present his position.” W

o od , 132 S. Ct. at 1834.

A n opportunity to respond is especially importa n t because, a s the majority acknowledg es, whether we should decline to ex ercise our jurisdi c t i o n involves an entirely d ifferent inquiry than whether w e have jurisdiction a t all. The d iscretionary d e c ision whether to e x ercise jurisdiction is

a complex and nuanced one a s to which a skilled advocate such as Alvarez ’s current counsel would have a g reat deal to say

. N ot o nly do my colleag u es r u sh to judg ment without pausing to h ear A lvarez ’s view o f the material, we have not heard the Community ’s position—ex cept, perhaps, that the Co m m u nity would be h appy to win on whatever g r ound pleases the court. I find it hard to underst a n d h o w the majority can be confident of its answer t o t h is important question without any

input from the parties.

Appellate courts “are particularly ill suite d t o consider issues forfeited below. U nlike d i strict courts, courts o f appeals cannot permit a State t o amend its answer to a dd a de fe n s e , nor can they develop the facts that are often
necessary to resolve questions of timeliness.” W o o d , 132 S. Ct. a t 1836 (Thomas, J
., c oncurring in the judg ment). I f there

are additional facts that bear o n our e x ercise of discretion, we’re in no p osition to consid e r t h e m

. I f Alvarez has
arg uments ag ainst the majority ’s view that I haven’t thoug ht of, we don’t know what they are. The majority ’s o pinion inA L V A R E Z V

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this case provides a cautionary tale about what happens when

a court abandons the case the p arties briefed and arg u ed, a nd
g oes off based on its own pet theory

.

3. Even if the Community ’s w aiver had been inadvertent, and even if A lvarez had a f a i r o pportunity to present his position, that would o n ly permit —not oblig ate—us to consider an ex haustion arg ument. W ood makes clear that the discretion to address such unraised arg uments “sh o u ld [be] reserve[ d]

. . . for use in exceptional cases .” W o od

. 132 S. Ct.
at 1834 (emphasis added). The Community ’s failure to raise Alvarez ’s nonex haustion of direct appeal hardly qualifies a s

ex c e ptional. I t is not the result of an obvious and inadvertent
error, immediately apparent to every one once it’s pointed out,

as was true in Day

. N or is this a case where the Community would b e severely p rejudice d b y our adjudication of the merits: Had the Community cared about ex haustion, it would
at least have kept alive the ex haustion defenses it did raise in district c ourt. W ere w e to rule on the merits, we’d be doing only what the Community

asked us to do in the first place.

These case-specific considerations matter little to the majority , however, because it fashions a sweeping new rule: “[ C] ases implicating tribal sovereig nty and the tribal

ex h austion requirement” are always “ex ceptional.” Maj. Op. 20. I n our circuit, therefore, tribes will no long er need to raise an ex haustion defense in federal habeas proceeding s; we will do it for them. That’s a r e m arkable inversion of our normal practice, and entirely inconsistent with the principles underly ing W

ood

.

The majority ’s conclusion is drawn from a patchwork o f inapplicable case-law, im p r o per inferences and acontex tual dicta. My colleag ues first sug g e st that a tribe’s b lanketA L V A R E Z V

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immunit y from our normal waiver d octrine can be derived f r o m Granberry

. B ut Granberry makes clear that “if a fu l l [ p r o ceeding ] has been held in the district c ourt and it i s

e v i d e nt that a miscarriag e of justice has occurred,” i t i s normally “appropriate f

or the court of appeals to hold that the

nonex h austion defense has been wa i ved in order to avoid

unn e c e s s ar y delay in g r anting relief.” 481 U.S. a t 135. Granberry therefore directs u s to at least peek at the merits o f

a habeas petition in order t o determine whether a case is “ex c eptional.” T he majority ’s c ateg orical rule— u ntethered from the merits of the petition or t h e p o t e n tial injustice that d e n i a l o f r e v i e w m a y c a u s e

— p l a i n l y c o n t ra v en e s Granberry ’s instruction.

Unable to f

ind support in Granberry ’s holdi n g o r reasoning

, the majority relies on misreadi n g t he opinion’s dicta. According to the majority

, “the Court [ in Granberry ] characteriz ed the tribal ex haustion r equireme n t a s an ‘inflex ible bar to consideration of the merits’ that may not be

w a i ved.” Maj Op. 20. The Granberry Court d id no such thing

. The “inflex ible bar” lang uag e th a t t h e majority cites

comes from the following sentence: “At the other ex treme,

we might treat nonex haustion as an inflex ible b ar to consideration of the merits of the p et ition b y the federal court.” Granberry

, 481 U.S. at 131 (emphasis added). That “ex treme” option was precisely what Granberry rejected: “W e are not persuaded by either of the ex treme p ositions. The appellate court is not r equired to dismiss for

nonex h austion notwithstanding the State’s failure to raise it.” Id. at 133.

True, the “ inflex ible bar” lang uag e is followed by a c f. ci t e to two tribal ex haustion cases. B ut that’s merely intended to point to an an a l o g ous area of law—tribal c ivilA L V A R E Z V

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cases—where the ex haustion requirement is strong e r than in the habeas contex t. I don’t understand how Granberry

, while creating a rule that limits a court’s power to sua sponte raise

an e x haustion arg ument to only “ e x ceptional cases,” intended—throug h a cf. cite —to carve out a special

ex e mption from that rul e f o r tribal habeas p etitioners. I t’s

even further a field to then conclude, as the majority does, that this ex emption is so powerful that tribal ex ha u s tion
arg uments are per se unwaivable, irrespective of a petition’s underly ing merits—the precise result G ranberry ex plicitly disclaims.

The majority tries hard to bolster its reading of Granberry by referencing ci v i l cases where we h ave stay ed actions pending ex haustion of tribal remedies. See Marceau v. Blackfeet Tribal Authority

, 540 F .3d 916, 921 (9th Cir. 2 008) (“[ T] he d istrict court should stay , r ather than dismiss, t h e action a g ainst the Housing Authority while Plaintiffs ex haust their tribal court remedies”); Allstate Indemnity Corporation

v

. Stump
, 191 F .3d 1071, 1 076 (9th Cir. 1999), amended 197 F .3d 1031 (9th Cir. 1999) ( “ [T] h e d istrict court should stay the action while Allstate ex hau s ts its remedies in tribal court”). B ut the Supreme Cour t h a s made clear that federal review throu gh habeas corpus—the only r emedy ex plicitly provided for in I CRA—is very diff er e n t from ordinary civil litig ation involving I n dian tribes. See Santa Clara Pueblo v. Martinez
, 436 U.S. 49, 70–71 (1978). 1 I n the civil contex t, a

1 Un d erstan d i n g th e o rig in s o f o u r trib al e x h au stio n j u risp ru d en ce in civ i l cases h elp s ex p lain w h y m ech an ically ap p ly i n g it to th e h ab eas

co n tex t is s o w

ro n g

. B e fo r e t h e S u

p rem e Co u rt’ s 19 7 8 d ecisio n in Ma rtin ez , sev eral lo w er co u rts h ad im p l ied a p riv ate rig h t o f actio n in f ed eral co u rt to en f

o rce ICRA ’ s “ b ill o f rig h t s”—Sectio n 1 3 0 2

. S ee, e.g

. , Jo h n so n v

. Lo wer Elwh a Trib a l C m t y

. o f Lo w er Elwh a In d i a n Reserva tio n , 4 8 4 F.2 d 2 0 0
, 2 0 1 (9 t h Cir. 1 9 7 3 ). In Ma rtin ez , th e S u p rem eA L V A R E Z V

. T R

A C Y 39

string ent ex haustion r equirement is n eeded to limit e x cessive litig ation ag ainst tribes, w hich may “ undermine the authority of tribal forums

. . . [ and] impose serious financial b urdens on already ‘financially disadvantag ed’ t r i b es.” Id. at 64. B ut I CRA’s habeas provision “ protect[ s] the individual interests [ of tribe members] while avoiding unnecessary intrusions on tribal g overnments.” 436 U .S. at 67. T h at’s why

, when enacting I CRA, Cong r ess str u ck “the balance between [ its] statutory o bjectives

. . . [ b y ] providing o nly for habeas corpus relief [ and not a civil remedy ] .” Id. at 66. 2 B y mechanically

Co u rt h e l d t ha t ICRA do es n o t p ro v id e su ch an im p lied cau se o f actio n

. 4 3 6 U.S. 4 9 at 7 2

. B u t p la i n tif f s so o n f o u n d an o th er w ay to brin g civ i l claim s ag ain st trib es: “ Rath er th an attack in g [a] t r i b al actio n d irectly as

v io lativ e o f a sp ecif

i c p ro v i sio n o f [ICRA ], litig an ts b eg an f ilin g f ed eral

co m plain ts alleg in g an ab s en ce o f t rib al p o w er to en g ag e in th e ch allen g ed activ ity

, th ereb y recastin g th e d isp u te as j u risd ictio n al in n atu re.” L au rie Rey n o ld s, Exh a u s tio n o

f Trib a l Remed ies: Exto llin g Trib a l S o ver e ig n ty W h ile Exp a n d in g Fed era l Ju risd ictio n , 7 3 N.C. L

. R e v

. 1 0 8 9
, 11 0 0

– 0 1 (1 9 9 5). T h e ab s ten tio n

d o ctrin e articu lated in Na t’l Fa rmers Un io n In s. Co s. v

. Cro w Trib e o

f In d ia n s w as a resp o n se to t h e sp ecif i c co n tex t of
p o st- Ma rtin ez civ il litig atio n

. S ee 4 7 1 U.S. 8 4 5
, 8 4 9 n .3 (1 98 5 ). In Na tio n a l Fa r

mers , “ th e Su

p rem e Co u rt ag reed th at th ese j u r i sd ictio n al ch allen g es d id in d eed arise u n d e r f ed eral law f

o r t h e p u rp o se of estab lish in g f

ed eral q u estio n

j u risd ictio n , b u

t in stru cted th e lo w er co u rts to stay th eir h an d u n til th e litig an ts h ad ex h au sted th eir trib al rem ed ies.” Rey n o ld s, 7 3 N.C. L . Rev . at 1 1 0 1. T h ere can b e little d o u b t , th eref o re, th at th e s tro n g ab sten tio n d o ctrin e articu l ated in Na tio n a l Fa rmers relates

o n ly to t h at categ o ry o f litig atio n af f ected b y Ma rtin ez

. S i n ce Ma rtin ez

ex p licitly lef

t h ab eas claim s u n to u ch ed

, i t i s w r o n g t o in f er th at th e Na tio n a l Fa rmers ab sten tio n d o ctrin e is ap p licab le to h ab eas.

2 A cco rd i n g to th e m aj o rity

, M a rtin ez su p p o rts t h e co n clu sio n t

h at “ ev en

w h en ev alu atin g a h ab eas p etitio n , w e m u st b e m in d f

u l o f o u r o blig atio n to av o id ‘ in tru d [in g ] n eed lessly o n trib al s elf

- g o v ern m en t.’ ” Maj

. Op

. 2 2 (q u o tin g Ma rtin ez , 4 3 6 U.S. at 71 ). T h e actu al co n tex t of th at q u ote is as f o llo w s: “ [G]iv e n Co n g ress’ d esire n o t to in tru d e n eed lessly o n trib al self

- g o v ern m en t , it is n o t su

rp risin g th at Co n g ress ch o se at th is stag e toA L V A R E Z V

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A C Y 40

apply ing the ex haustion d octrine desig ned for civil litig ation
t o habeas proceeding s, the majority disturbs the sensiti v e balance between g roup a u t o nomy and individual rig hts that Cong r ess soug ht to preserve. A nd it g o es without say ing that the harm caused by staying a civil case p ending resolution o f

a tribal proceeding is neg lig ible compared to that c a u s ed b y dismissing a pris o n e r ’s habeas petition when he h as no alternative recourse.

Unsurprising ly

, the majority c an’t find a sing le c ase in
any circuit holding that a court may d eny habeas relief solely

on the basis of an e x h a u s t i o n a rg ument it raised sua sponte. Every c ase the majority cites in support of this novel proposition is a civil one. Maj. Op. 19–22. We cannot blithely import rules from the civil contex t to habeas, where vi t a l liberty interests are at stake. That’s doubly true in I ndian law, where I CRA’s h abeas provision has been sing led out—both by Cong ress a

nd the Supreme Cou r t —as the sole bulwark ag ainst potential “injustices perp e t ra ted by tribal
g overnments.” Martine z , 436 U.S. 49 a t 66 (internal quotation marks omitted). T he line o f n o n-habeas cases the majority r elies on, therefore, is n o foundation for a b lanket

ex e mption for tribes from our o rdinary rules of waiver in the habeas contex t.

I n a final h a i l m a ry attempt at justify ing why tribal

ex h austion cases are per se “ex ceptional,” the majority invokes “our g eneral d

uty to avo i d deciding unnecessary issues.” Maj. Op

. 25 (quoting Turner v. U.S. Parole Comm’n
, 810 F .2d 612, 613 n.3 (7th Cir. 1987)). B ut what could possibly be “unne cessary ” about deciding whether

p ro v id e f or f ed eral rev iew o n l y in h ab eas co rp u s p ro ceed in g s.” Ma rtin ez , 4 3 6 U.S. at 7 1

.A L V A R E Z V

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A C Y 41

Alvarez ’s fundamental rig h ts have been violated? T h e majority s t

r e sses that A lvarez ’s confrontation clause and rig ht
to jury c laims present d i f ficult and unresolved issues o f federal law. Are we really to leave a man imprisoned w ith no remedy because we fear we’re not up to the task of resolving hard leg al questions? Avoidance canons do not permit us to avoid our basic duties as a court of law.

Moreover, while the majority privileg es considerations o f comity over Alvarez ’s rig hts at e very turn, any comity interests implicated here are less than compelling because the Community ’ s p rocess seems to be desig ned to d eny convicted defendants a fair chance to appeal. The Community provides

o n ly five day s in which to appeal a conviction, e ven thou gh
many litig ants, like Alvarez

, lack co u nsel. According to Alvarez

, and undisputed by the Comm u n i ty , the facility in which he was incarcerated h ad n o law libr a r y , so he didn’t have even the theoretical possibility o f researching t h e law and identify ing any errors in his trial or fig uring out when a nd how to appeal them. After the trial c o n cluded and Alvarez

was sentenced, the judg e d id n ot r em i n d him of his r ig ht to appeal or tell him when and how to ex ercise it.

T he only time Alvarez might have been informed o f t h e five-day deadline for f

iling his appeal was at his arraig nment, nearly five months prior to his s e n t e n cing

, and there’s no evidence that Alvarez

was g iven this information e ven then. After the Community court sentenced him, h e was n ot g iven

a n otice-of-appeal form, provided written instructions, or told how or where to file. The Community seems to have done
every thing in its power to p r event A lvarez from appealing his conviction. This may , i n fact, be why the Community has chosen ( wisely

, in my view) not to rely on failure to a ppeal in making its ex haustion arg ument.A L V A R E Z V

. T R

A C Y 42

“[ I ] t would be no t h i ng less than abdication of our constitutional duty and function to rebuff petitioners with this mechanical [ex haustion] formula whenever it may become clear that the alleg ed state r emedy is nothing but a procedural

morass o ffering no substantial hope of relief.” Mari n o v

. Ragen
, 332 U .S. 561, 564 (1947) (Rutledg e, J
., concurring ). Such is the case here; Alvarez

— a nd o u r s y stem o f justice—deserve better. B ecause these all e ga t i o ns, if borne out, would demonstrate a g rave miscarriag e of justice, we should not raise failure to ex haust sua sponte.

B

Even if the Community had preserved its nonex haustion defense, it is unavailing

. W e have o bserved that in evaluating such a defense, “we must first ascertain whether any meaning ful tribal remedies ex ist, an d

, i f so, whether

ex h austion will in any way serve the purposes for which it is intended.” St. Marks , 545 F

. 2d at 1189.

As we s a i d n e a r ly forty y e a rs ag o : “That remedies a re available in theory

, but not in f ac t, is not sy

nony mous with failure to ex haust remedies. That ineffective and meaning less procedures were available to petitioner does n ot p reclude his seeking a writ o f habeas corpus.” United States ex rel. Cobell

v. C obell

, 5 03 F .2d 790, 794 (9th Cir. 1974). The order issued by the tribal court in Cobell “ contained no invitati o n to participate in tribal appellate processes,” id. at 793–94, a nd neither did Alvarez ’s judg ment of conviction. I n neither our

case nor Cobell d id the trial judg e ex plain to the losing party that he could challeng e the judg ment by way of an appeal.

Contrary t o t he majority ’s sug g estion, Selam v. W arm Springs Tribal Corr. Facility

, 1 34 F .3d 948 (9th Cir. 1998),A L V A R E Z V

. T R

A C Y 43

underscores why we must reach the merits here. Selam was represented by a lay Tribal Spokespe r s o n w ho mounted a dilig ent defense notwi t hstanding Selam’s unwilling ness to assist. See id. at 950. When Selam lost at trial

, “ t h e t r i bal
court judg e informed Selam that he could a ppe a l his convictions to the tribal c ourt of appeals.” Nothing of the sort happened here. W hat’s mor e , S e lam did appeal, and raised six g rounds of error, “indicating that he did not consider his appeal futile.” Id. Selam was in mu c h the same position a s the Community here with respect to ex h austion: He made a deliberate choice to raise some claims but no t o thers. Consequently

, we declined to ex c use his failur e t o e x haust additional claims p r e s en ted for the first time in his h abeas petition. W hy a

re we tr e a t i n g the Community here better than we did Selam?

The majority effectively holds that a defendant’s rig ht to federal habeas review under I CRA is a l w a y s and entirely supervenient on his compliance with tribal procedure, no matter how fundamentally unfair that p rocedure may b e. Cf. Lee v. Kemna , 534 U.S. 362, 375 (2002) (state prisoners are

en titled to federal habeas review when their procedural default is the result of inadequate state procedures); Hoffman

v. Arave
, 236 F .3d 523, 5 31 (9th Cir. 2001) (federal h abeas review is not pre c l u d e d unless “the defendant h as h ad a reasonable opportunity to have t h e i s s u e as to the claimed [ federal] rig ht heard and determined by the St ate court”) (i n t er nal quotation marks omitted). And, u nlike state prisoners, t h o s e c o nvicted by a tribal court w ho miss their appeal deadline will b e permanently barred from f ederal court

even if there is both “cause” and “prejudice” for their failure
t o ex haust, and even if such a result is a “fundamen t al miscarriag e of justice.” Cf. Coleman v

. Thompson

, 501 U.S. 722, 750 (1991) (claims not p resented to a state court will notA L V A R E Z V

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A C Y 44

be defaulted if “the prisoner can dem o n s t ra t e cause f o r the default a nd actual prejudice

. . . or d emonstrate that failure to consider the claims w ill result in a fundamental miscarriag e of justice.”); Franklin v. Johnson

, 290 F .3d 1223, 1231 (9th Cir. 2002) (“I f a petitioner f ailed to present his claims in state court a nd can no long er r a i s e them throug h a ny state procedure, state remedies are no long er available, a n d a re thus ex h austed”). I t’s particularly i nequitable to treat tribal prisoners so much worse than their state counterparts in lig ht of the fact that there is no rig ht to c o unsel i n t r ibal courts. Under the major i t y ’s rule, uncounseled tribal defendants subject to f

lag rantly unlawful convictions and fundamentally unfair procedural bar s c a n n onetheless be prevented from obtaining federal habeas review. No other categ ory of person subject to criminal jurisdiction in the Uni t e d States g e ts any thing close to such shabby treatment.

Moreover, the majority ’s holding permits a tribe to effectively nullify section 1303 of I CRA t h r o u g h artful manipulation o f its courts’ appellate p r o cedures. A tribe could, f or ex ample, create a f

ive-minute time-limit to appeal

a tribal court’s decision and, u nder the majority ’ s newly minted rule, a prisoner’s f ailure to comply would constitute

a permanent bar to f

ederal habeas r e l i e f

. B y establishing mandatory d ismissal o f unex hausted c laims, the majority implicitly blesses the l eg itimacy of e ven such absurdly truncated time requirements. 3

3 T h e m aj o rity m ain tain s th at f ailu re to ex h au st can b e ex cu sed w h en

“ ex h au stio n w o u ld h av e b een f u tile o r [] th e trib al co u rt o f ap p eals o f f ered

n o ad eq u a t e r e m ed y .” Maj

. Op

. 1 1

. Bu t sin ce th e m aj o rity h o ld s th at f u tility an d /o r l ack o f rem ed y m u st b e presen t at th e tim e th e t rib al ap p eal

co u ld h a ve b een f

iled —rath er th an

th e tim e at w

h ich th e f ed eral p etitio n is f iled —th ese ex ce p t io n s are p ractically w o rth less. Ev en a f iv e m in u te (o r th irty

- s eco n d ) ap p ellate w i n d o w still tech n ically o f f ers an “ ad eq u ateA L V A R E Z V

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A C Y 45

T h e majority r eserves the p ossibility that I CRA’s d u e process clause mig ht offer a defendant some protection in “an

e x treme case.” Maj. Op. 15 n.7. B ut how is th i s n o t a n

ex treme case? Alvarez ’s sit uation is arg uably worse than a defendant sub

ject to a five-minute appeal window—his compliance with tribal procedure was p ractically impossible,
g iven not only the short deadline, but his absence of counsel, lack of notice and inability to access e ven rudimentary leg al materials. I f I CRA’s due process provision doesn’t apply to Alvarez

, I f

a il to see how it will a

pply to any one. B y deny ing fe d e r a l habeas review in even the ex treme circumstances present here, the majority renders I CRA’s due process protections chimerical, and places tribe members’ capacity to vindicate th e i r f

e deral rig hts e n tirely at the whim of their tribes. T hat’s h ardly faithful to the delicate balance b etween individual and g roup rig hts C o ng ress soug ht to maintain when enacting

I CRA.

Fi n a l l y , even if a direct appeal within the Community

c o u r t sy stem were a meaning ful remedy

, we should still decline to enforce the ex haustion r equir e m e nt because any marg inal benefit it provides in term s o f “preserv[ ing ] a nd streng then[ ing ] tribal inst i t u t i ons,” St. Marks

, 545 F .2d at 1189, is f a r outweig hed by the need to adjudicate the serious deprivations of rig hts that Alvarez a lleg e s. See pag es 37–38
supra

. As w e h a v e repeatedly held, “[ t] he e x haustion requirement is not an inflex ible o ne.” St. Marks

, 545 F

. 2 d at 1189; see also Cobell

, 503 F .2 d at 793; Selam

, 134 F .3d at 953. I f the majority h ad any discretion to ex ercise, it abuses it by refusing to ex ercise it in Alvarez ’s favor.

r e m ed y ” w

h ich is n ot “ f

u tile.” T h e issu e is n o t w h eth er a trib al re m e d y th eo retically ex ists, bu t w h eth er a p riso n er can m ean in g f u lly av ail h im self

o f th at rem ed y

.A L V A R E Z V

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A C Y 46

II

Alvarez claims that he was denied his jury t r i a l a nd confrontation rig hts. See 25 U .S.C. § 1302(a)(6), (10). A l thoug h the majority sees no need to g ive his alleg a t i o n s any thing more than passi n g m ention, a closer look at Alvarez ’s trial and conviction reveals the serious wrong he has suffered, and the hig

h price he has paid as a result.

A

1. I CR A provides that “ [ n] o I ndian tribe in ex ercising powers of self-g overnment shall deny to any person accused of an offense punishable b y imprisonment the rig ht, upon request , to a trial b y jury of n ot less tha n six persons.” 25 U.S.C. § 1302(a)(10) (e m p h asis added). As with the Community ’ s nonex haustion defense, this jury trial rig ht may be waived by “an intentional relinquishment or abandonment of a known rig ht or privileg e.” Johns o n , 304 U.S. at 464 (emphasis added). W hether this standard is met “depend[ s]
, in each case, upon the particular facts a n d c i rcumstances surrounding that case, including the b ackg round, e x perience, and conduct of the accused.” Id.

According to the Community

, it w as oblig ated to provide Alvar e z o nly with a rig ht to a jury trial as defined by I CRA,

a nd I CRA provides for a jury only “upon request.” T h e Community there f

o r e a r g ues that its o blig ation to provide a jury wasn’t trig g ered until Alvarez made such a request. B ut the Community fails to ex p lain how Alvarez w oul d have known that he was required to make a request. I ts theory

seems to be that Alvarez must b e p resumed to know the law, including e very jot and tittle in I CRA. B ut if we presume that kind of knowledg e, what’s the p oint o f informing crim i n alA L V A R E Z V

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A C Y 47

defendants o f any rig h ts? The presumption in criminal cases is precisely the reverse: Defendants don’t know th e i r r i ghts and so we must tell them.

Alvarez was never told he had to a s k f o r a j ury

. The Community produced the af f i d a v it of Carleton J

. Giff, w ho prosecuted Alvarez in the Community court. Giff states that

a “‘Defendant’s Rig h ts’ form was routinely stapled to e ach criminal complain t p r o vided to the defendant prior to arraig nment, ” a n d notes that “the rig hts would have been routinely read at the beg inning of each arraig nment docket.” This speaks o nly to the Community ’s g eneral practice, not to what happened in Alvarez ’s case. Giff does n ot p roduce a copy of Alvarez ’s Complaint with a rig hts form attached, nor does he claim he remembers that Alvarez was apprised o f his rig hts. A nd the Defendant’s Rig hts form Giff attaches to his affidavit say s only “[ y ]ou have t h e r i gh t to a jury trial.” I t does not tell defendants that they must ask for a jury

, or when and how they

must do so.

A transcript of Alvarez ’s arraig nment has the jud ge say ing that Alvarez had been informed of his leg al rig hts, a nd

a s king if A lvarez had any questions about them, to w h i c h Alvarez answered that h e d i d not. B ut there is n o r e ference
to which rig hts he was informed of and in what terms. How would a man with a seventh-g rade education have known whether h e wa s advised of a ll of h is rig hts, or whether they

were stated fully and accurately ? And w hy wasn ’ t A l v a rez advised of his rig hts on the record by a judg e rather than off the record by an unidentified nobody ?

W e advise defendants of their r ig hts because we presume th ey don’t know them. J udg es perform the a dvisement to impress d efendants with t h e i r i mportance. And we do it onA L V A R E Z V

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A C Y 48

the record so we can later c o nfirm th a t nothing was omitted

or misstated. Are tribal courts so disdainful of d e f endants’ rig hts that such formalities are routinely omitted? This, a fter all, was not traffic court; Alvarez g ot eig ht y ears behind bars.

The most we can infer on this r ecord is that someone may have read A lvarez some rig hts, not whether they were all read

or whether they were acc u r at ely stated. And the judg e himself only e x plicitly mentioned one rig ht: “Mr. Alvarez

, sir, y ou may b e e l i g ible for counsel throug h F our Rivers I ndian L eg al Services. I f y o u are not elig ible, y ou w ill be responsible for obtaining counsel on y our own. And this will
t h e n b e at a cost to y ou.” Counsel for the Community conceded at o ral arg ument before us that we have no evidence that Alvarez was actually advised of any

other rig hts.

Clearly

, the means of invoking a rig h t—and even the fact that a r ig h t must b e specifically invoked—is c r itical information for a defendant planning his defense. There is no leg itimate reason f

or the Community ’s s y stematic failure to advise defendants that they must requ e s t a jury if they want

one. B y failing to address the issu e i n t h i s case, we a re allowing the Community and perhaps other tribal jurisdictions to conti n ue to d eprive countless defendants o f their rig ht to trial by jury

.

2. W hen the Supreme Court first held that the S i x th Amendment jury trial rig ht was w a i v able, it was careful to defend its decision a g ainst those who f eared that uninformed and unsophisticated d efendants may w aive their ri gh t t o a jury a g ainst their best interests. Acknowledg ing that the rig ht
at common law was not waivable, the Court pointed out that the modern rule is a product of change s i n the broader criminal justice reg ime: “Such a course raised up a sort of aA L V A R E Z V

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A C Y 49

barrier which the court could utiliz e when a prosecution was successful which oug ht not to have been successful, or when

a man w ithout money , without counsel, without a b i l i t y to

s ummon witnesses, a

nd not permitted to tell his own st o ry , had been unjustly c onvicted

, b ut y e t under the ordinary principles of waiver, as a pplied to c ivil matters, had waived
every defect in the p r o ceeding s.” Patton v. United States
, 281 U

. S

. 276, 307–08 (1930). I t w as plausible to p ermit

w aiver under the modern reg ime, however, due t o t h e emerg ence of other p rocedural protections: “The man n ow charg ed with cr ime is furnished the most complete opportunity for making his defense. He may te s t i f y i n his

own behalf; if h e be poor, he may have counsel furnished him by the state, and may have his w itnesses summoned and p aid for by the state.” I

d

. at 308. B ut n o such protections were afforded Alvarez ; the Comm u n i t y c o u rt seems to be much closer to the roug h and tumble ju s t i c e o f the common law
courts.

W h ile I CRA spells o ut w h a t rig hts are to be a ccorded criminal d efendants in tribal courts, i t d oesn’t specify h ow those rig hts are to be invoked o r waived. Cong ress left that
to judicial interpretation. I n performing that function we must take into acco u nt the p ractical realities of the tribalcourt proceeding s, including the f act that many defendants

are forced to represent themselves. Althoug h s o m e of the rig hts provided by I C R A a re more deferential to tribes than the B ill of Rights, the A ct nevertheless seeks to “‘protect individual I ndians from arbitrary and unjust actions of tribal
g overnments,’” in lig h t of t h e f act that “the most serious abuses o f tribal power had occurred in the admi n i s tration o f criminal justice.” M

artinez
, 436 U.S. a t 6 1
, 7 1 (quoting S. Rep. No. 841, 90th Cong ., 1st Sess., 5–6 (1967)).A L V A R E Z V

. T R

A C Y 50

I t i s h ardly an intrusion on the sovereig nty a nd integ rit y of tribes to r e q u i r e that they inform defendants of the full
nature of their rig hts, including w hen and how they must invoke them. I nsisting that tribes d o so advances tribal

sov e r e i gnty by ensuring that these issues are f ully a nd fairly litig ated within the tribal sy stem rather than havin g t h e m show u p on our doorstep after a defendant has fully served his
sentence. Happily

, this is a c a s e where both leg islative interests—respecting tribal sovereig nty and p rotecting the procedural rig

hts of defendants—point to the same answer.

The denial of the rig h t to a jury trial is a structural error requiring automatic reversal o f a conviction. S u llivan v. Louisiana
, 5 08 U.S. 275, 281 (1993). Moreover, the Community h as never alleg ed t h at the denial of a jury in Alvarez ’s case was harmless, despite raising such a d e f ense with respect to his confrontatio n claim. Cf. O ’Neal v. McAninch

, 513 U.S. 432, 444 ( 1995). According ly

, w e must vacate Alvarez ’s conviction.

B.

Alvarez also claims that the Community court violated his rig ht to c on f

rontation w hen it admitted the complaining wi t n e ss’s statements throug h the testimony of Officer B enally

. I CRA provides that “[ n] o I ndian tribe in ex ercising
powers of self-g overnment s h all deny to a ny person in a criminal proceeding the rig ht

. . . to be confronted w i t h the witnesses ag ainst him.” 25 U.S.C. § 1302(a)(6). B ecause this mirrors the Six th Amendment g uarantee that “the a c c u sed shall en j o y the rig ht

. . . to be confronted with the w itnesses
ag a i n st him,” we may apply caselaw interpreting the federal constitutional rig ht to its I CRA analog u e. Randall v. Y akima Nation Tribal Court
, 841 F .2d 897, 9 00 (9th Cir. 1 988)A L V A R E Z V

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(“W here the r ig ht s are the same u n der e ither [ the federal o r tribal] leg al sy stem, federal constitutional standards a re employ e d in determining whether the challeng ed p r ocedure violates [ I CRA] .”).

Alvarez ’s trial occurred bef o re the Supreme Court decided Crawford v. W

ashington

, 541 U.S. 36 (2004), so his confrontation claim must be evaluated under Ohio v. R oberts

, 448 U .S. 56 (1980). I n that case, the Court held that out-ofcourt statements could be int r o d u c e d at trial only if the declarant is u navailable and t he statements bear adequate indicia of reliability

. Id. at 66.

The district court did not assess whether the Community
court violated Alvare z ’s confrontation r ig ht, instead rely ing

on its conclusion that any error that may have occu r r e d w a s harmless because Alvarez confirmed the truth of t h e out-ofcourt statements. This log ic is dubious: Alvarez only affirmed that “every

thing that [ Officer B e n a l l y ] say s it be true,” following and in response to the alleg ed confrontation

v i o lation. And as the prosecutor stated at trial, “ t h e st a t em e n t s o n the record o f the defendant

. . . are not evidence,” and the “only things that could be c onsidered b y the Court is what is testified to.”

Roberts observed that “[ a] witness is not ‘unavailable’ for
p u r poses of the

. . . e x ception to the confront a t i o n requirement unless the prosecutorial authorities have made a g o o d

- faith effort to o btain his presence at trial,” and t h at “[ t] he leng ths to which the prosecution must g o to produce a witness

. . . is a question o f reasonableness.” I d. at 74 (citations omitted). I n this case, the le n gt h s t o which the prosecution went to produce the victim consisted of issuing

a subpoena, which was “left at t he party (ies) usual place o fA L V A R E Z V

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abode with a person of suitab le a g e and discretion w ho resides a t t h e party (ies) u sual place of abode.” The Community arg ues that this is sufficient to show unavailability because i t is all that the Community ’ s o wn l a ws required it to do, but this is untenable under Rober t s , which speaks in t erms of “g ood-faith effort” a nd “reasonableness.” I f dropping off a subpoena a t a witness’s home were enoug h, the g ood-faith e ffort and reasonableness requirements would be meaning less.

Officer B enally testified that when a prosecution witness fails to a ppear, “[ s] ometimes t hey ’ ll d o a continuance o r warrant or whatever they see is appropriate, depending on the circumst an ce,” including

, in some cases, prosecuting witnesses f

o r failing to respond to a subpoena. T h e r e c o r d reflects no such efforts in Al v a r ez ’s case. Neither the prosecution nor the court went to a ny tro u b l e to bring the witness into court. The trial was no t continued when the victim of the alleg ed crime failed to appear. N o bench
warrant was issued; no constable was se n t t o b r ing h er into
court. Confronted with an uneducated defendant who had no

one trained in the law to speak for h i m , t h e court and the prosecutor took the easy way out by conducting a trial based on hearsay

.

The fact that the Community court let the p r osecution g et away wi t h such tactics d oesn’t mean that they were reasonable

, m uch less that they represented a g ood-faith effort to produce the witness. S ee W ilson v. Bowie
, 408 F .2d 1105, 1106–07 (9th Cir. 1969) (finding that a witness was not unavailable when “the only ex planation g iven by the State

. . . for [ t h e witness’s] absence was the prosecution’s statement t h a t it h ad attempted to subpoena [ him] ,” and “there was no showing that [ the witness] could not appear in court onA L V A R E Z V

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A C Y 53

another day ” ). I n deed, knowing Alvarez ’s l a ck o f sophistication and the potential v a l u e of having his victim testify

, the prosecution had an even g reater duty to ensure that she was present at Alvarez ’s trial. The Community court certainly did.

Althoug h it’s perfectly clear that the Community v iolated Alvarez ’s confrontation ri gh t by admitting the hearsay testimony of O fficer B e nally , a separate question remains as
to whether the victim’s state m e n t s introduced throug h her brother, w hich were larg ely duplicative of Officer B enally ’s testimo n y , fell within a hearsay ex ception, potentially mooting the confronta t i o n issue. See W hite v. Illinois

, 502 U .S. 346, 356 (1992) (holding that unava i lability need
not be shown under R oberts when the hearsay statement f alls within a hearsay ex c eption providing sufficient ini d i cia o f reliabi lity ). B ecause we must reverse on jury trial g rounds, this issue needn’t detain us. W ere this case to be retried b y the Community

, however, and should the victim once ag ain fail to appear, the tribal court would have to consider whether the testimony could n e v ertheless be introduced under the standards of Crawford

.

III

The majority errs in dismissing this case sua sponte based

on Alvarez ’s failure to ex h aust his direct a pp e als in the Community c ourt. Proceeding to t h e merits of Alvarez ’s petition, I would find that the Community violated Alvarez ’s rig ht to a jury trial under I CRA b y failing to inform him that he needed to request a jury

. This was a structural error fatally undermining the conviction. According ly , I dissent.