FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FORTINO ALVAREZ,

Petitioner-Appellant,

v.

RANDY TRACY, Acting Chief

Administrator for the Gila River

Indian Department of Rehabilitation

and Supervision,

Respondent-Appellee.

No. 12-15788

D.C. No.

2:08-cv-02226-

DGC

OPINION

Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted

April 15, 2013—San Francisco, California

Filed December 8, 2014

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

and N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith;

Dissent by Judge Kozinski
2 ALVAREZ V. TRACY

SUMMARY*

Habeas Corpus

The panel affirmed the district court’s denial of a habeas

corpus petition brought pursuant to the Indian Civil Rights

Act, 25 U.S.C. § 1303 (ICRA), and 28 U.S.C. § 2241, in

which Fortino Alvarez challenged convictions and sentences

imposed by the Gila River Indian Community tribal court.

The panel declined to exercise jurisdiction over Alvarez’s

claims and affirmed the denial of the habeas petition because

Alvarez failed to exhaust his claims by bringing them first to

the tribal courts, and did not demonstrate that unavailability

or futility of direct appeal excuses the exhaustion requirement

or that the Community’s appeals process did not comply with

the ICRA.

Although the Community failed to raise Alvarez’s lack of

direct appeal in its motion to dismiss, the panel considered

the defense under Wood 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 at stake

warrant federal abstention.

Dissenting, Judge Kozinski wrote that the majority does

not live up to its solemn responsibility to appear impartial,

when it forgives the Community, which was represented by

counsel, for failing to raise an exhaustion defense in district

court or on appeal, but holds Alvarez to his single oversight

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

been prepared by court staff for the convenience of the reader.
ALVAREZ V. TRACY 3

of failing, while unrepresented before the Community court,

to raise his jury trial and confrontation claims by way of a

direct appeal. On the merits, Judge Kozinski would find that

the Community violated Alvarez’s right to a jury trial under

ICRA by failing to inform him that he needed to request a

jury, a structural error fatally undermining the conviction.

COUNSEL

Daniel L. Kaplan (briefed and argued), Assistant Federal

Public Defender, and Keith J. Hilzendeger, Research and

Writing Specialist, Office of the Federal Public Defender,

Phoenix, Arizona, for Petitioner-Appellant.

Linus Everling, General Counsel, and Thomas L. Murphy

(briefed and argued), Deputy General Counsel, Gila River

Indian Community Office of the General Counsel, Sacaton,

Arizona, for Respondent-Appellee.
4 ALVAREZ V. TRACY

OPINION

N.R. SMITH, Circuit Judge:

A petitioner’s failure to exhaust a claim brought under the

Indian Civil Rights Act (the “ICRA”), 25 U.S.C. § 1303, does

not deprive the federal court of subject matter jurisdiction. 

Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 16 n.8 (1987);

Grand Canyon Skywalk Dev., LLC v. ‘SA’ NYU WA Inc.,

715 F.3d 1196, 1200 (9th Cir. 2013); Selam v. Warm Springs

Tribal Corr. Facility, 134 F.3d 948, 953 (9th Cir. 1998). 

Nevertheless, exhaustion under the ICRA is a “prerequisite to

a federal court’s exercise of its jurisdiction.” Grand Canyon,

715 F.3d at 1200. Accordingly, we will not address a

petitioner’s unexhausted claims, unless the petitioner shows

that one of the doctrine’s narrow exceptions applies. Jeffredo

v. Macarro, 599 F.3d 913, 918 (9th Cir. 2009); see also

Selam, 134 F.3d at 954.

At the outset, we note that “Indian tribes occupy a unique

status under our law.” Nat’l Farmers Union Ins. Cos. v.

Crow Tribe, 471 U.S. 845, 851 (1985). They “are not bound

by the United States Constitution in the exercise of their

powers, including their judicial powers.” Means v. Navajo

Nation, 432 F.3d 924, 930 (9th Cir. 2005). As a result, “tribal

proceedings do not afford criminal defendants the same

protections as do federal proceedings.” United States v.

Percy, 250 F.3d 720, 725 (9th Cir. 2001). Although the

ICRA grants many rights to tribe members, some of what we

would consider our most basic rights are noticeably absent. 

See, e.g., id. (Sixth Amendment right to counsel).

Habeas corpus provides the exclusive remedy by which

enforcement of the ICRA can be obtained in federal court. 
ALVAREZ V. TRACY 5

See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 66 (1978). 

Even when we might exercise jurisdiction in the habeas

context, the “Supreme Court specifically has instructed us to

require exhaustion of tribal appellate court remedies . . .

because the federal policy of promoting tribal selfgovernment encompasses the development of the entire tribal

court system, including appellate courts.” Selam, 134 F.3d at

953 (internal quotation marks omitted). At times, these

considerations constrain our ability to grant a petitioner relief,

even when his unexhausted claim may be meritorious in other

contexts.

In the instant case, Fortino Alvarez failed to exhaust his

ICRA claims by bringing them first to the tribal courts. 

Alvarez has not demonstrated that an exception to the

exhaustion doctrine applies. Thus, we decline to exercise

jurisdiction over his claims and affirm the district court’s

denial of his habeas petition.

FACTS

Alvarez is an enrolled member of the Gila River Indian

Community (the “Community”). In 2003, the Community

charged Alvarez with assault, domestic violence, and

misconduct involving a weapon (the “Charges”) after Alvarez

allegedly assaulted his girlfriend with a flashlight. The

Community’s tribal court arraigned Alvarez on the Charges

during a group arraignment on July 3, 2003.

Prior to the arraignment, Alvarez received a copy of the

Community’s criminal complaint with an attached

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

included, among others, the statement: “You have the right to

appeal, if you are found ‘Guilty’, within a period of five
6 ALVAREZ V. TRACY

(5) business days after sentencing.”1 This statement was

consistent with the right to appeal provided by the Gila River

Indian Community Code.2 The Community court also read

the form at the beginning of the group arraignment. 

Thereafter, the court asked Alvarez individually whether he

had any questions about those rights. He responded that he

did not.

The Community court convicted Alvarez of the Charges

after a bench trial in late-2003. The court sentenced Alvarez

to one year of imprisonment for each of the five Charges. 

The court also determined that Alvarez should serve the five

years consecutively with other time for separate crimes for

which Alvarez was convicted—bringing his total prison term

to nine years.

Alvarez did not appeal his conviction or sentences. At

some point, Alvarez filed a motion for commutation of his

sentence. Although Alvarez failed to raise any ICRA claims

in the motion for commutation, it is unclear whether tribal

 

1

 The form also stated: “You have a right to a jury trial.”

2 Section 2.1236(A) of the Gila River Indian Community Code, at the

time, provided:

The Community, or any party to a prosecution by

information or complaint may appeal as prescribed in

this Code. A defendant shall have the right to appeal

his conviction or sentence in a criminal action. A

petition for appeal must be filed within five days after

the decision, order, decree, or judgment of a court,

excluding Saturdays, Sundays, and holidays observed

by the Community Court.

(emphasis added).
ALVAREZ V. TRACY 7

procedure allowed him to assert such grounds. In any event,

the Community court denied the motion for commutation,

because Alvarez’s disciplinaryinfractions in prison made him

ineligible for commutation.

In 2008, Alvarez filed a pro se habeas corpus petition (the

“Petition”) under 25 U.S.C. § 1303, challenging his

convictions and sentences. Alvarez raised a number of

alleged ICRA violations.3 The Community moved to dismiss

the Petition, arguing that Alvarez failed to exhaust his tribal

remedies. The Community argued that Alvarez should have

brought: (1) a motion to commute that included the ICRA

claims raised in the Petition; (2) a petition for writ of habeas

corpus to the Community; or (3) “a motion to correct his

sentence.” Both the assigned magistrate judge and the district

court rejected the Community’s exhaustion arguments and

found that, even if a motion to commute were an available

remedy, further attempts to exhaust through a second motion

to commute would have been futile. The district court also

concluded that the Community failed to show that tribal

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 failure to file a direct appeal as

bearing on the exhaustion issue.

The magistrate judge recommended that the district court

dismiss all of Alvarez’s claims on their merits. The district

3 Alvarez was not represented in any of the proceedings before the

Community courts. Eventually, the federal district court granted

Alvarez’s motion to appoint counsel. However, we note that, in sharp

contrast to Gideon v. Wainwright, 372 U.S. 335 (1963), the ICRAdoes not

provide a right to appointed counsel free of charge. See 25 U.S.C.

§ 1302(a)(6); Tom v. Sutton, 533 F.2d 1101, 1103–04 (9th Cir. 1976).
8 ALVAREZ V. TRACY

court adopted the recommendation. Alvarez timely appealed,

challenging the dismissal of his Confrontation Clause and

right to jury trial claims.

DISCUSSION

We “review de novo a district court’s denial of a petition

for writ of habeas corpus under the ICRA.” Jeffredo, 599

F.3d at 917.

I.

“‘[A] federal court’s exercise of jurisdiction over matters

relating to reservation affairs can . . . impair the authority of

tribal courts.’” Selam, 134 F.3d at 953 (quoting Iowa Mut.,

480 U.S. at 15) (second alteration in original). As such,

“‘[t]he Supreme Court’s policy of nurturing tribal selfgovernment strongly discourages federal courts from

assuming jurisdiction over unexhausted claims.’” Jeffredo,

599 F.3d at 918 (quoting Selam, 134 F.3d at 953). Thus, “the

court is required to ‘stay its hand’ until [a] party has

exhausted all available tribal remedies.” Id.

A party’s failure to exhaust, however, does not deprive

the federal courts of subject matter jurisdiction over the

claims. See Iowa Mut., 480 U.S. at 16 n.8. Two Supreme

Court cases—National Farmers and Iowa Mutual—illuminate

the nature of our exhaustion requirement and its exceptions. 

In National Farmers, the Supreme Court applied the

exhaustion doctrine in a federal case brought by non-Indians

against Indians in federal court. See 471 U.S. at 855–57. The

non-Indian plaintiffs sought to enjoin execution of a tribal

court judgment against their property. Id. at 848. The district

court entered the injunction, concluding that the tribal court
ALVAREZ V. TRACY 9

did not have jurisdiction over non-Indians’ property. Id. at

848–49. The Supreme Court concluded that the federal

district court improperly entered the injunction, because the

non-Indian plaintiffs had not raised the challenge to the tribal

court’s jurisdiction to the tribal court in the first instance. Id.

at 856–57. The Court reasoned that “Congress is committed

to a policy of supporting tribal self-government and selfdetermination.” Id. at 856. Such policy favors allowing

tribal courts “the first opportunity to evaluate the factual and

legal bases for the challenge” to the tribal court’s jurisdiction. 

Id.

In Iowa Mutual, an insurance company challenged the

tribal court’s jurisdiction to decide a tort case against one of

the company’s policyholders. 480 U.S. at 12. The tribal

court held that it had jurisdiction over the claims against the

non-Indian company. Id. The company did not appeal to the

tribe’s court of appeals, but filed suit in federal court. Id. at

12–13. The district court dismissed due to the company’s

failure to fully exhaust its jurisdictional challenge. The

district court held that it lacked subject matter jurisdiction

over the suit. Id. at 13. Our court affirmed. Id.

The Supreme Court agreed that the district court properly

dismissed the company’s suit for failure to exhaust. Id. at

19–20. However, the Court disagreed that failure to exhaust

deprived the federal courts of subject matter jurisdiction. See

id. at 16 n.8 (“[T]he exhaustion rule enunciated in National

Farmers Union did not deprive the federal courts of subjectmatter jurisdiction.”). The Court concluded:

[T]he [exhaustion] rule is analogous to

principles of abstention articulated in

Colorado River Water Conservation Dist. v.
10 ALVAREZ V. TRACY

United States, 424 U.S. 800, 96 S. Ct. 1236,

47 L. Ed. 2d 483 (1976): even where there is

concurrent jurisdiction in both the state and

federal courts, deference to state proceedings

renders it appropriate for the federal courts to

decline jurisdiction in certain circumstances. 

In Colorado River, as here, strong federal

policy concerns favored resolution in the non

federal forum.

Id. at 16 n.8. Accordingly, the Court applied the National

Farmers exhaustion rule and “stay[ed] its hand in order to

give the tribal court a full opportunity to determine its own

jurisdiction.” Id. at 16 (internal quotation marks omitted). 

The Court noted some exceptions, enumerated in National

Farmers, to the exhaustion rule, but rejected the company’s

argument that an exception applied. Id. at 18–19. The Court

remanded the case for the district court to determine whether

to stay the case pending further tribal proceedings or dismiss

it outright. Id. at 20 n.14.

Since National Farmers and Iowa Mutual, we have

applied the exhaustion rule and required parties to bring

challenges to tribal court jurisdiction to the tribal courts

before bringing the challenge to federal court. See, e.g.,

Grand Canyon, 715 F.3d at 1200–01; Burlington N. R.R. Co.

v. Crow Tribal Council, 940 F.2d 1239, 1247 (9th Cir. 1991). 

In doing so, we have observed that, even though exhaustion

is not a “jurisdictional prerequisite,” Iowa Mut., 480 U.S. at

16 n.8, exhaustion is “a prerequisite to a federal court’s

exercise of its jurisdiction,” Grand Canyon, 715 F.3d at 1200

(emphasis added). We have also noted that some exceptions

to the rule may apply under certain circumstances. Id.
ALVAREZ V. TRACY 11

Aside from the tribal court jurisdiction issue, we have also

relied on National Farmers and Iowa Mutual to define the

scope of the exhaustion rule in the ICRA/habeas context. See

Jeffredo, 599 F.3d at 918; Selam, 134 F.3d at 953. In keeping

with National Farmers, we have observed “that exhaustion of

[ICRA] claims is not an inflexible requirement.” Selam, 134

F.3d at 953 (internal quotation marks omitted). We recognize

that:

A balancing process is evident; that is

weighing the need to preserve the cultural

identity of the tribe by strengthening the

authority of the tribal courts, against the need

to immediately adjudicate alleged

deprivations of individual rights. Thus this

Court must determine whether exhaustion is

appropriate in the case at bar.

Id. In light of the strong presumption against “assuming

jurisdiction over unexhausted claims” in the tribal context,

the balance will shift in favor of not requiring exhaustion only

if one of the limited exceptions to the exhaustion doctrine

applies, or if the petitioner can show that the unexhausted

tribal procedure is not consistent with the ICRA. See id. at

953–54.

We have recognized that some of the exhaustion

exceptions announced in National Farmers may apply in the

habeas context to excuse a petitioner’s failure to exhaust. Id.

at 954. We have not required exhaustion where “the litigant

was able to show either that [(1)] exhaustion would have been

futile or that [(2)] the tribal court of appeals offered no

adequate remedy.” Id.
12 ALVAREZ V. TRACY

In Selam, we applied the exhaustion doctrine in a case

very similar to Alvarez’s. There, the petitioner brought a

number of ICRA claims to the district court, but had

previously failed to bring one of them to the tribal court of

appeals. Id. at 953. As a result, the district court (on the

magistrate judge’s recommendation) refused to hear the

claim. Id. We affirmed. Id. at 954. We noted the strong

comity and efficiency concerns underlying the exhaustion

doctrine and the need to balance those concerns against the

petitioner’s individual rights. Id. at 953. We declined to

“assume jurisdiction” over the petitioner’s unexhausted claim

and reasoned that the petitioner was a member of the tribe,

convicted for crimes committed on the reservation against

other Indians. Id. We observed that a tribe’s right to selfgovernment “includes the right to prescribe laws applicable

to tribe members and to enforce those laws by criminal

sanctions.” Id. at 953–54. As such, a member Indian “is

bound to follow the procedures of the tribe if they are

consistent with the [ICRA].” Id. at 954 (emphasis omitted). 

We concluded that the tribe’s appellate procedures were

consistent with the ICRA, because the tribe had twice

informed the petitioner of his right to appeal. Id. We

rejected the petitioner’s argument that exhaustion would be

futile or that the appellate process was inadequate, concluding

that petitioner “demonstrated neither.”4 Id.

4 The dissent contends that Alvarez’s case is distinguishable from Selam

because, in its view, Alvarez had no adequate remedy in tribal courts. The

dissent cites two bases for distinguishing Selam from this case: (1) Selam

was represented by counsel at trial and (2) the trial judge informed Selam

of his right to appeal during sentencing. Id. The first point was irrelevant

to our analysis in Selam. The second point had nothing to do with whether

Selam had an adequate remedy in tribal court. Selam, 134 F.3d at 954

(discussing, separately, Selam’s knowledge of his right to appeal and the

adequacy of his remedy). We rejected Selam’s argument that “exhaustion
ALVAREZ V. TRACY 13

Here, as in Selam, the interests of comity and efficiency

convince us to decline to exercise jurisdiction over Alvarez’s

claims. Like the petitioner in Selam, Alvarez is a Community

member, convicted of acts committed on the reservation

against other Community members. Accordingly, the

Community’s right of self-government includes the right to

enforce its laws against Alvarez. Alvarez, as a Community

member, was required to follow Community procedure and

bring an appeal within five days as prescribed by Gila River

Indian Community Code § 2.1236. Alvarez does not dispute

that the Defendant’s Rights form was attached to his criminal

complaint and read to him at his arraignment. Nor does he

dispute that he acknowledged that he understood the rights set

forth in the form. Yet, he failed to comply with the five-day

requirement. Further, Alvarez failed to bring his claims in his

motion to commute his sentence. Although we acknowledge

that a motion to commute might not have been the

appropriate vehicle to raise ICRA claims, this fact only

highlights Alvarez’s failure to bring the claims on direct

appeal. As a result of this failure, the Community courts have

never had an opportunity to hear Alvarez’s claims and

“rectify any errors it may have made.” See Selam, 134 F.3d

at 953.

Alvarez offers no explanation for his failure to exhaust by

bringing his claims on direct appeal. As such, he has failed

to demonstrate that direct appeal would have been futile or

that the Community court of appeals would not have provided

would have been futile or that the tribal court of appeals offered no

adequate remedy” for one reason: “Selam . . . demonstrated neither.” Id.

The same is true of Alvarez.
14 ALVAREZ V. TRACY

an adequate remedy.

5

Indeed, the record demonstrates that

Community procedures allowed Alvarez to seek relief from

his conviction and sentence.6 Although the district court

found that the futility exception applied to a motion to

commute, which finding we review only for clear error, see

Grand Canyon, 715 F.3d at 1200, it did not make a finding

5 We acknowledge, as we did in Selam, that Alvarez could not now bring

his claims “because tribal appellate procedure only entitled him to appeal

within [five] days of his conviction.” 134 F.3d at 954 n.6. This does not

change our conclusion, because:

if we were to assume jurisdiction over an unexhausted

claim solely on the basis that it is now too late (“futile”)

for [Alvarez] to bring it, this would eviscerate the tribal

court exhaustion requirement-at least in cases where

parties have a limited period of time in which to file an

appeal. Therefore, we decline to consider the appeal of

a judgment in the tribal courts futile just because the

dissatisfied party has neglected to file a timely

appeal.Id.

 

6

 Gila River Indian Community Code § 2.1326(H) reads:

After hearing the appeal the appellate court shall issue

a ruling on its findings and may:

(1) Affirm the judgment of the lower court; or

(2) Order the case returned to the lower court for a

new trial; or

(3) Reduce the sentence imposed by the lower

court; or

(4) Rule that the decision of the lower court be

reversed and the case dismissed.
ALVAREZ V. TRACY 15

regarding the futility of Alvarez’s direct appeal. As such,

there is no finding to which we owe deference on this point.

Further, Alvarez has failed to show that the Community’s

appeals process is not consistent with the ICRA. The

Community requires that people desiring to appeal their

convictions do so within five days. Although this time period

is short, the time-limit is not unreasonable, and the ICRA

does not require anything more of the Community.

7 Thus,

because Alvarez has not demonstrated that an exhaustion

exception applies or that the Community’s appeals process is

inconsistent with the ICRA, Alvarez has failed to overcome

the strong presumption of requiring full exhaustion of tribal

remedies. Therefore, we require full exhaustion in this case

and are “persuad[ed] . . . not to assume jurisdiction over”

Alvarez’s claims. See Selam, 134 F.3d at 953.

II.

Alvarez argues that we should not apply the exhaustion

doctrine, because the Community did not raise Alvarez’s

failure to appeal in its motion to dismiss for lack of

7 The dissent presents the extreme hypothetical that a tribal court could

implement a five-minute (or thirty-second) time-limit to appeal and

thereby forestall a prisoner’s right to habeas corpus review, because the

prisoner would never be able to exhaust tribal remedies. However, in such

an extreme case, this court would not be bound by such a ridiculous

procedure. Instead, we would be authorized to hold that such a short timelimit is contrary to ICRA § 1302(a)(8) (prohibiting deprivation of liberty

without due process of law). The five day time-limit in the present case

is hardly comparable to the five-minute limit raised by the dissent. 

Though the exact line between what is an appropriate time-limit and what

is too short is difficult to determine, it is unnecessary for the determination

of this case. Here, Alvarez received notice of the time-limit for appeal,

and we hold that the time-limit was appropriate under the ICRA.
16 ALVAREZ V. TRACY

exhaustion. According to Alvarez, the Community waived

the exhaustion defense, and our application of the doctrine

would be an abuse of discretion under Wood v. Milyard,

132 S. Ct. 1826, 1834 (2012). We reject Alvarez’s

arguments. Our application of the exhaustion rule is

consistent with Wood. Further, comity and tribal selfgovernment 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.

Where a tribe fails to raise the exhaustion defense in

response to a habeas petition, we may nevertheless consider

the defense unless the tribe has “deliberate[ly] waive[d]” it. 

See id. at 1834. A tribe deliberately waives the

nonexhaustion defense when it strategically withholds it or

intentionally chooses to relinquish it. Id. at 1833–35. For

example, in Wood, the Supreme Court held that the court of

appeals abused its discretion where it sua sponte raised the

statute of limitations defense in a habeas case. Id. at 1834. 

The court reasoned that the state’s failure to raise the defense

“did not stem from an ‘inadvertent error.’” Id. at 1835. 

Rather, “the State twice informed the District Court that it

[would] not challenge” the petition’s timeliness. Id. at 1834. 

In 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. Id. at 1835.

In this case, our application of the exhaustion doctrine

does not contravene Wood. With regard to Alvarez’s failure

to appeal, there is no indication in the record that the

Community deliberately waived the exhaustion defense. 
ALVAREZ V. TRACY 17

Unlike the state in Wood, the Community challenged

Alvarez’s nonexhausted petition by filing a motion to

dismiss.8 True, the petition did not address Alvarez’s failure

to appeal, but this omission is quite different from the state’s

“strategic[] withhold[ing]” of the exhaustion defense in

Wood, in which the state “deliberately steered” the district

court away from the exhaustion issue.9

Id. at 1834–35. And

8 We do not, as the dissent contends, hold that “a state or tribe can only

waive the defense by saying so explicitly.” We simply require, as the

Supreme Court does, evidence that the state or tribe “knowingly and

intelligently relinquished” its exhaustion defense, as opposed to having

“inadverten[tly]” overlooked it. 132 S. Ct. at 1832 n.4, 1833 (alteration

in original).

9 The dissent’s attempt to analogize the facts of this case to Wood misses

the mark. Given the Community’s motion to dismiss for failure to

exhaust, it would be illogical to conclude that the Community, like the

state in Wood, “strategically withheld the . . . defense.” See Wood, 132 S.

Ct. at 1834. In an effort to avoid this obvious conclusion, the dissent takes

a more nuanced, unsupported-by-case-law approach, arguing that the

Community “strategically withheld” one argument that supported the

failure-to-exhaust defense.

The dissent speculates—as it does so much throughout its

opinion—that the Community withheld the argument that Alvarez failed

to appeal, because the Community had “done everything in its power to

prevent Alvarez from appealing his conviction.” Dissent at 41. The

problem, of course, is that this theory finds no support in the record. See

Day v. McDonough, 547 U.S. 198, 211 (2006) (“[N]othing in the record

suggests that the State ‘strategically’ withheld the defense or chose to

relinquish it.” (emphasis added)). Even if this theory had some basis in

the record, what could the Community possibly gain by not arguing that

Alvarez failed to appeal?

In Wood, the state intentionally relinquished its defense, because it

had made a “deliberate decision to proceed straightway to the merits.” See

132 S. Ct. at 1834. Certainly the Community did not make that same

decision. After all, filing a motion to dismiss would be a rather unusual
18 ALVAREZ V. TRACY

even though federal courts commonly infer waiver from the

failure to raise an issue, Day, 547 U.S. at 202, Wood instructs

that the exhaustion doctrine “is founded on concerns broader

than those of the parties; in particular, the doctrine fosters

respectful, harmonious relations between the state and federal

judiciaries.” 132 S. Ct. at 1833. For that reason, in

exceptional cases, Wood permits federal courts to raise the

exhaustion defense sua sponte unless it has been intentionally

relinquished.10

Id. at 1833, 1835. There is no evidence of

such an intention here.

The dissent argues that finding the Community forfeited,

rather than waived, the defense is not enough, because

Alvarez never had a fair opportunity to respond to our theory

of the case. See id. at 1833–34. The record tells a different

story. As the dissent acknowledges, we issued an order prior

to oral argument directing that “the parties should be prepared

way to “deliberately steer[] the District Court away from the question and

toward the merits of [the] petition.” Id. at 1835. We find nothing in the

record to support the assertion that when the Community moved to

dismiss the case for failure to exhaust it intentionally relinquished the

argument that Alvarez failed to appeal. This leads us to conclude that the

Community’s failure to raise the argument was more “inadvertent” than

“deliberate.”

10 Noting the Community’s failure to raise exhaustion on appeal, the

dissent suggests that we should rule on the merits because “we’d be doing

only what the Community asked us to do in the first place.” The dissent’s

rationale puts the cart before the horse. The question of whether we

should raise the exhaustion defense “on [our] own motion,” Wood, 132

S. Ct. at 1834, only arises because the government failed to raise the issue

on appeal. If we answered the question of whether we should raise

exhaustion sua sponte by asking whether the government raised the issue

on appeal, the answer would always be no. The dissent’s logic would

make the discretion prescribed by Wood illusory.
ALVAREZ V. TRACY 19

to address whether this court has jurisdiction 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 of jurisdiction at that cite in Jeffredo establishes

“that a litigant must first exhaust tribal remedies before

properly bringing a petition for writ of habeas corpus.”

599 F.3d at 918. Alvarez responded by filing a supplemental

brief, in which he argued that “to the extent exhaustion is a

component of the district court’s subject-matter jurisdiction

here, that requirement is satisfied.”

At oral argument, the court discussed Alvarez’s right to

appeal with counsel for both parties. The Community argued

that Alvarez had failed to exhaust his tribal remedies, because

“the fact of the matter is he did not directly appeal his

conviction.” Alvarez’s counsel responded by arguing, as the

dissent argues, that the Community waived the argument that

Alvarez failed to appeal. Alvarez argued (again much like

the dissent) that, under the Supreme Court’s decision in

Wood, the court could not raise failure to exhaust sua sponte,

because it had been waived rather than forfeited. This series

of events convinces us that Alvarez was “accorded a fair

opportunity to present his position.” Wood, 132 S. Ct. at

1834; see also Day, 547 U.S. at 210–11 (requiring only

“notice and a fair opportunity” to argue in favor of waiver).

B. The interests of comity and tribal self government

warrant application of the exhaustion rule.

Granberry v. Greer, 481 U.S. 129, 134–35 (1987),

discussed in Wood, helps guide our discretion in determining

whether to address the nonexhaustion issue. In Granberry,

the Court rejected the petitioner’s argument that a state’s

failure to raise the exhaustion defense barred the district court
20 ALVAREZ V. TRACY

from raising it. Id. at 131–32. The Court reiterated its view

that “comity [is] the basis for the exhaustion doctrine.” Id. at

134. Accordingly, in exceptional cases, courts may excuse

the state’s duty to raise the exhaustion defense and

“determine whether the interests of comity and federalism

will be better served by addressing the merits forthwith or by

requiring a series of additional state and district court

proceedings . . . .” Id.

Our own precedent indicates that cases implicating tribal

sovereignty and the tribal exhaustion requirement are

exceptional. In Allstate Indemnity Corporation v. Stump,

191 F.3d 1071 (9th Cir.), amended 197 F.3d 1031 (9th Cir.

1999), we recognized that, because tribal sovereignty is of

critical importance, the tribal exhaustion requirement is

appropriately addressed sua sponte. 191 F.3d at 1073 (citing

United States v. Tsosie, 92 F.3d 1037,1041 (10th Cir. 1996)). 

Indeed we have found the tribal exhaustion requirement of

such import that we have enforced it even when it was not

raised until after we had decided the case and issued an

opinion. See Marceau v. Blackfeet Tribal Authority, 540 F.3d

916, 920 (9th Cir. 2008). Granberry itself implied that tribal

exhaustion is exceptional and not subject to waiver. Though

Granberry decided an issue pertaining to the exhaustion of

state remedies, the Court briefly compared the state

exhaustion requirement to the nature of tribal exhaustion. 

481 U.S. at 130 & n.4. The comparison is revealing: the

Court characterized the tribal exhaustion requirement as an

“inflexible bar to consideration of the merits” that may not be

waived. Id. Although the Court’s brief discussion of tribal

exhaustion is dicta, we recognize, as do our sister circuits,

that it demonstrates “the heightened sensitivity to tribal

sovereignty present in federal-tribal comity cases.” Smith v.

Moffett, 947 F.2d 442, 445 (10th Cir. 1991) (emphasis
ALVAREZ V. TRACY 21

added).11 Requiring exhaustion of tribal remedies not only

fosters mutual respect between sovereigns in a manner

similar to abstention in favor of state courts, see Iowa Mut.

Ins. Co., 480 U.S. at 16 n.8, but also promotes tribal selfgovernment through the development of the tribal court

system. Id. at 16–17. Thus the tribal exhaustion doctrine

11 As the Tenth Circuit explained in Smith, tribal exhaustion is of

particular importance among the abstention doctrines as, in addition to

forwarding comity interests similar to those forwarded by respect for state

courts, requiring exhaustion of tribal remedies advances Congress’s

interest in the development of tribal sovereignty. 947 F.2d at 445

(explaining that, in recognition of Congress’s intent, the Supreme Court

“assiduously advocate[s] federal abstention in favor of tribal courts”).

Other circuits have also read Supreme Court precedent, including

Granberry, to imply that the tribal exhaustion requirement is of special

importance. See Bowen v. Doyle, 230 F.3d 525, 530 (2d Cir. 2000)

(describing Granberry’s dicta as characterizing the tribal exhaustion rule

as “an inflexible bar to consideration of the merits...by the federal court,

. . . requir[ing] . . . dismiss[al] when it appears there has been a failure to

exhaust”); Duncan Energy Co. v. Three Affiliated Tribes of Ft. Berthold

Reservation, 27 F.3d 1294, 1300 (8th Cir. 1994) (approving of Smith’s

interpretation of Granberry).

In Bank One, N.A. v. Shumake, 281 F.3d 507 (5thCir. 2002), the Fifth

Circuit found the tribal exhaustion doctrine far more powerful than the

state court favoring doctrine of Colorado River Water Conservation

District v. United States, 424 U.S. 800 (1976). As the Fifth Circuit

explained, although Colorado River relieves the federal courts of their

“unflagging obligation” to exercise their jurisdiction only in exceptional

circumstances, tribal exhaustion “subordinates the federal court’s

obligation to exercise its jurisdiction to the greater policy of promoting

tribal self-government.” Bank One, 281 F.3d at 514–15. Therefore,

“Colorado River abstention is thus the exception to the rule, whereas tribal

exhaustion is the rule rather than the exception.” Id. at 515.
22 ALVAREZ V. TRACY

implicates unique and “exceptional” concerns beyond those

implicated in federal-state comity cases.12

Further, the Supreme Court recognized in Santa Clara

Pueblo v. Martinez, 436 U.S. 49, 71 (1978), that respect for

tribal courts is particularly important when adjudicating

ICRA claims, notwithstanding that the ICRA is a federal, not

tribal, law.13 Not only does adjudicating ICRA claims in

federal court necessarily constitute an interference with tribal

autonomy and self-government, 436 U.S. at 59, but resolution

of statutory issues under the ICRA will “frequentlydepend on

questions of tribal tradition and custom which tribal forums

may be in a better position to evaluate than federal courts.” 

Id. at 71. We recognize that the ICRA provides the

mechanism of habeas corpus to correct abuses in the

administration of criminal justice. Id. But, even when

evaluating a habeas petition, we must be mindful of our

obligation to avoid “intrud[ing] needlessly on tribal selfgovernment.” Id.

Here, our decision to decline to assume jurisdiction over

Alvarez’s claims is consistent with the comity and self12 The dissent argues that we are obligating federal courts to always

require full exhaustion in tribal habeas cases. However, this is simply not

the case. Although our holding that tribal cases are exceptional provides

federal courts the ability to raise the exhaustion requirement sua sponte in

tribal cases, it does not require them to do so. Instead, federal courts must

examine the facts of each case and apply the balancing test used in Part I

of this Opinion to determine if requiring full exhaustion is appropriate.

13 Similarly, we have found that requiring tribal exhaustion is “the most

appropriate action” even when a case only involves questions of federal

law. United States v. Plainbull, 957 F.2d 724, 728 (9th Cir. 1992). As we

explained in Plainbull, that federal law is at issue is “immaterial” when

“considerations of comity require the exhaustion of tribal remedies.” Id.
ALVAREZ V. TRACY 23

government concerns underlying the tribal exhaustion

doctrine generally and its application in the ICRA context

specifically. If anything, the view of Congress and the

Supreme Court toward tribal courts’ role in tribal selfgovernment, discussed above, makes a stronger case for an

exhaustion requirement than the federalism concerns

discussed in Wood and Granberry. Accordingly, we see no

reason to allow Alvarez to bypass Community procedures and

proceed to federal court in the first instance. See Selam,

134 F.3d at 953–54; cf. Harrington v. Richter, 131 S. Ct. 770,

787 (2011) (explaining that, in the habeas context, one of the

purposes of the exhaustion requirement is to ensure that “state

proceedings are the central process, not just a preliminary

step for a later federal habeas proceeding”).

The nature of Alvarez’s claims strengthen our conclusion

and further convince us that “comity and judicial efficiency

. . . make it appropriate for [us] to insist on complete

exhaustion.” See Granberry, 481 U.S. at 135. Alvarez brings

his right to a jury trial claim under the ICRA, 25 U.S.C.

§ 1302(a)(10). Section 1302(a)(10) makes it unlawful for a

tribe to “deny to any person accused of an offense punishable

by imprisonment the right, upon request, to a trial by jury of

not less than six persons.” Alvarez acknowledges that the

Community informed him of his right to a jury trial, but

argues that it never told him that he had to request one. Thus,

according to Alvarez, failure to request a jury trial did not

constitute voluntary, knowing, and intelligent waiver of the

right as required by the Constitution. See United States v.

Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir. 1997).

We have not previously had occasion to determine the

scope of a defendant’s right to a jury trial under the ICRA. 

Federal Constitutional jurisprudence informs our
24 ALVAREZ V. TRACY

interpretation of the ICRA where the rights are the same. See

Randall v. Yakima Nation Tribal Court, 841 F.2d 897, 900

(9th Cir. 1988). However, the rights afforded by the ICRA

are not coterminous with the Constitution where the language

and the history of the ICRA and the Constitution differ. See

Santa Clara Pueblo, 436 U.S. at 62–63; Randal v. Yakim

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

(explaining that when interpreting the ICRA’s due process

clause, “courts . . . [have] correctly sensed that Congress did

not intend that the . . . due process principles of the

Constitution disrupt settled tribal customs and traditions.” 

(quoting F. Cohen, Handbook of Federal Indian Law, 670

(1982 ed.))); Tom v. Sutton, 533 F.2d 1101, 1103–04 (9th Cir.

1976). Because the ICRA, by its plain language, requires a

defendant to request a jury, it differs significantly from the

Sixth Amendment right to a jury trial. See 25 U.S.C.

§ 1302(a)(10). As such, we cannot resolve Alvarez’s

argument by consulting Sixth Amendment case law alone. 

Further, no federal court has determined whether a defendant

can knowingly and voluntarily waive his right to a jury trial

under the ICRA if the tribe never told the defendant that such

a trial was available only “upon request.” As a result,

Alvarez’s jury trial claim presents a significant and

unresolved question of federal law.

If Alvarez had pursued his tribal remedies, it is possible

that a tribal court would have granted relief, and we would

not be here today. At least two other tribal courts have

agreed with Alvarez’s argument that a tribe must inform a

defendant of his right to a jury “upon request” to satisfy the

knowing and intelligent requirement. See, e.g., McGrady v.

Three Affiliated Tribes, 31 Indian L. Rep. 6058, 6058–59 (N.

Plains Intertr. Ct. App. 2004); Confederated Salish &

Kootenai Tribes v. Peone, 16 Indian L. Rep. 6136, 6136–37
ALVAREZ V. TRACY 25

(C.S. & K. Tr. Ct. 1989). Even if the Community courts did

not grant Alvarez the relief he seeks, their full consideration

of the issues and development of the record could have aided

our decision and promoted the orderly administration of

justice. See Nat’l Farmers, 471 U.S. at 856 (explaining that

the tribal court’s full development of the record would aid the

federal court, even though the tribal court would be

considering a question of federal law). Thus judicial

efficiency considerations, as well as “our general duty to

avoid deciding unnecessary issues,” Turner v. U.S. Parole

Comm’n, 810 F.2d 612, 613 n.3 (7th Cir. 1987), counsel in

favor of enforcing the exhaustion requirement here.

The dissent breathlessly accuses us of treating the parties

“disparate[ly].” How, the dissent asks, could we “forgive[]

the Community’s double-default but hold[] Alvarez strictly

to his single oversight”? We too would be troubled—if this

were not a gross oversimplification of the issues presented in

this case. The parties’ defaults were not created equal:

Alvarez failed to exhaust; the Community inadvertently

forfeited a defense. These doctrines are animated by wholly

different rationales. Unlike forfeiture, exhaustion “implicates

values beyond the concerns of the parties.” Wood, 132 S. Ct.

at 1833.

The dissent ignores this distinction by citing non-habeas,

non-exhaustion, non-Indian law cases that apply waiver to

support its contention that we are being inconsistent with past

decisions. These cases may fit the dissent’s carefully crafted

narrative, but they do little to support its contention of

inconsistency. Although noticeably absent from the cases
26 ALVAREZ V. TRACY

cited by the dissent, the interests of comity and tribal selfgovernment are critical to our conclusion here.14

CONCLUSION

Alvarez failed to exhaust his claims and, thereby, failed

to meet this “prerequisite” of our exercise of jurisdiction. 

Alvarez has not shown that the unavailability or futility of

direct appeal excuses the exhaustion requirement. Nor has he

shown that the Community’s appeals process did not comply

with the ICRA. Although the Community failed to raise

Alvarez’s lack of direct appeal in its motion to dismiss, we

nevertheless consider the defense under Wood and

Granberry. The strong comity and judicial efficiency

interests at stake warrant federal abstention. We, therefore,

decline to assume jurisdiction over Alvarez’s claims.

AFFIRMED.

14 The dissent dismisses the comity interests at stake here because, in its

view, the “Community’s process seems to be designed to deny convicted

defendants a fair chance to appeal.” But as we have said in the context of

Indian law, comity involves “respecting a sovereign’s procedures and

avoiding paternalism.” Bird v. Glacier Elec. Coop., Inc., 255 F.3d 1136,

1143 (9th Cir. 2001); Selam, 134 F.3d at 953–54 (“[E]xcept to the extent

demanded by the [ICRA], the structure and procedure of [tribal] courts

may be determined by the tribes themselves.”). The dissent seems to be

saying that it is willing to respect a tribe’s sovereign right to order its own

procedures—but only if the dissent approves of those procedures. This

turns comity on its head and replaces it with the very paternalism the

Supreme Court has discouraged. See Iowa Mut. Ins. Co., 480 U.S. at

14–19. Indeed, the dissent sprinkles its analysis with derogatory remarks

about the tribe’s judicial processes, even implying that tribal judicial

officials are less suited for their jobs than “marsupials.” Suffice to say, we

think the tribe, a sovereign nation, is more deserving of our respect.
ALVAREZ V. TRACY 27

KOZINSKI, Circuit Judge, dissenting:

When we take the judicial oath of office, we swear to

“administer justice without respect to persons, and do equal

right 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 disinterested observer. 

Today we do not live up to this solemn responsibility. 

Relying on a ground not raised by either party here or in the

district court, we refuse to consider petitioner’s serious and,

in my opinion, meritorious claims. This is only the latest

indignity inflicted on a criminal defendant who, despite

having a seventh-grade education, was forced to defend

himself at trial; although having the right to a jury, was never

told that he had to ask for one; and who was therefore

convicted and sentenced to eight years in prison in a bench

trial where neither the prosecution nor the judge lifted a

finger to bring the accusing witness into court. He’d have

had a fairer shake in a tribunal run by marsupials.

I am troubled by the disparate way we treat the parties. 

Alvarez and the Community both failed to raise legal issues

at the proper time and in the proper manner. Alvarez failed

to raise his jury trial and confrontation claims by way of a

direct appeal within the tribal court; the Community failed to

raise an exhaustion defense in district court. The Community

committed an additional default by also failing to raise this

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 Farms, Inc., 735 F.3d 892, 901

(9th Cir. 2013) (O’Scannlain, J.); Alliance for Property

Rights and Fiscal Responsibility 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. 2012)
28 ALVAREZ V. TRACY

(N.R. Smith, J.); Kreisner v. City of San Diego, 1 F.3d 775,

778 n.2 (9th Cir. 1993) (O’Scannlain, J.).

The majority forgives the Community’s double-default

but holds Alvarez strictly to his single oversight. I can’t see

the justice in this, but it gets worse: Alvarez committed his

default when he stood before the Community court without

representation. It’s not clear that he was ever advised of a

right to take an appeal. But if he was, it happened months

before his trial. After he was convicted and sentenced to

eight years in prison, he was not reminded of his right to

appeal; he was given no notice-of-appeal form or other

guidance about how to take an appeal. He was incarcerated

with no ready access to legal materials and faced a 5-day

filing deadline—shorter than any I’ve ever heard of.

The Community, by contrast, was at all times represented

by competent (and presumably well-compensated) counsel. 

It was fully aware that failure to exhaust was a plausible

defense, and raised three separate exhaustion arguments in

the district court (though not the one that my colleagues are

so taken with). It then chose not to argue exhaustion at all in

its appeal to us.

Confronted with this checkered procedural history, we

might hold both parties to their defaults. That would have an

appearance of fairness. Or, we could forgive both parties

their defaults, which also seems fair. But if we do either of

these things, the exhaustion issue drops out, and we must rule

on the merits of Alvarez’s petition. The only way to reach

the majority’s result here is by excusing the Community’s

defaults while holding Alvarez strictly to his—which is just

what my colleagues do.
ALVAREZ V. TRACY 29

I have read the opinion many times and disagree with

pretty much everything in it, including the numerals and

punctuation. I explain why in the pages that follow, but first

I pose a more basic question: How can a court committed to

justice, as our court surely is, reach a result in which the

litigant who can afford a lawyer is forgiven its multiple

defaults while the poor, uneducated, un-counseled petitioner

has his feet held to the fire? I attribute no ill will or improper

motive to my excellent colleagues. They are fair, honorable

and dedicated jurists who are doing what they earnestly

believe is right. But we see the world very differently. See,

e.g., United States v. Pineda-Moreno, 617 F.3d 1120, 1123

(9th Cir. 2010) (Kozinski, C.J., dissenting from denial of

rehearing en banc). I can find no justification for showing

such solicitude for the overdog while giving the underdog the

back of the hand.

I

Federal courts have a “virtually unflagging obligation . . .

to exercise the jurisdiction given them.” Colo. River Water

Conservation Dist. v. United States, 424 U.S. 800, 817

(1976). Although we have recognized a limited exception to

this rule when habeas petitioners fail to exhaust tribal

remedies, “[t]he exhaustion requirement is not an inflexible

one,” but rather “is imposed to further the congressional goals

of preserving and strengthening native American cultures by

insuring that tribal institutions are not denied the opportunity

to resolve tribal disputes or to make tribal policy.” St. Marks

v. Chippewa-Cree Tribe of Rocky Boy Reservation, Mont.,

545 F.2d 1188, 1189 (9th Cir. 1976) (per curiam). 

Accordingly, a respondent may waive a nonexhaustion

defense, see Granberry v. Greer, 481 U.S. 129, 133 (1987),
30 ALVAREZ V. TRACY

and, even when the defense is preserved, we must exercise

caution in relying on it.

A

1. Generally, “a [defense] is forfeited if not raised in a

defendant’s answer or in an amendment thereto.” Wood v.

Milyard, 132 S. Ct. 1826, 1832 (2012). If the forfeiture is

inadvertent, we have discretion to forgive it; but we have no

authority to forgive a waiver—a deliberate bypassing of

known legal theories. See id. at 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 nonexhaustion of direct appeals was a mere

oversight, or the result of a deliberate choice. The majority

concludes it was an oversight, based on the fact that “the

Community challenged Alvarez’s nonexhausted petition by

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 alleged failure to exhaust

other tribal remedies, but it omitted any mention of Alvarez’s

failure to take a direct appeal. It seems perfectly clear that

the Community, counseled by its able lawyers and intimately

familiar with the record in its own court, thought about

exhaustion and knew it was an available defense. The

applicable maxim here is expressio unius est exclusio

alterius. See Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts 107–11. Turning their

backs on six centuries of common law experience, my

colleagues invent a new maxim to fit the occasion: expressio

unius est inclusio alterius. What good are maxims if judges

can stand them on their heads whenever it suits them? I
ALVAREZ V. TRACY 31

rather doubt that Bryan Garner or his venerable co-author

would approve of my colleagues’ interpretive innovations.

The majority tries hard to squeeze support from Wood,

but Wood came out the wrong way for that purpose: The

Supreme Court there held that the court of appeals had abused

its discretion in doing just what the majority is doing here. 

The only way Wood helps the majority is that the state there

waived an exhaustion defense by expressly telling the district

court that it chose not to assert the defense. See Wood, 132

S. Ct. at 1830–31. The majority reads Wood as if an

affirmative statement were the only way a tribe could waive

the exhaustion defense, but if that were the rule, the Court

would have said so. Instead, it announced a far more nuanced

rule: “When the State [in our case, the Community] answers

a habeas corpus petition, it has a duty to advise the district

court whether the prisoner has, in fact, exhausted all available

[tribal] remedies.” Granberry, 481 U.S. at 134. Where the

habeas respondent fails to raise exhaustion in its “answer or

in an amendment thereto,” the defense is forfeited, Wood,

132 S. Ct. at 1832, subject to a “modest exception,” id., 

applicable only in “exceptional cases,” id. at 1832, 1834. 

Addressing our situation, the Court added: “That restraint is

all the more appropriate when the appellate court itself spots

an issue the parties did not air below, and therefore would not

have anticipated in developing their arguments on appeal.” 

Id. at 1834.

The caution about “exceptional cases” and the need for

“additional restraint” would have been pointless if the rule

were that a state or tribe can waive the defense only by saying

so explicitly. But the Court eschewed such a mechanical rule. 

Instead, it stuck with the long-standing proposition that,

whether a claim or defense has been waived “must depend, in
32 ALVAREZ V. TRACY

each case, upon the particular facts and circumstances

surrounding that case, including the background, experience,

and conduct” of the waiving party. Johnson v. Zerbst,

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

This case, in fact, presents a much closer parallel to Wood

than the majority lets on. The state in Wood recognized the

possibilityof a statute-of-limitations defense when the district

court raised the issue sua sponte; nevertheless, it “informed

the District Court it would ‘not challenge’” the petition on

those grounds. Wood, 132 S. Ct. at 1830, 1832. Here, the

Community recognized the availability of an exhaustion

defense before the district court when it argued that Alvarez

“has not raised any of the issues in his Petition in the

Community Court in the form of a motion to correct his

sentences, a motion for commutation or a habeas corpus

petition,” yet never said anything about Alvarez’s failure to

file a direct appeal.

In Wood, the state declined to resuscitate the statute-oflimitations defense on appeal, choosing to litigate on the

merits. Wood, 132 S. Ct. at 1831. Here, the Community

dropped even the exhaustion defenses it did raise below,

electing to defend against Alvarez’s appeal on the merits. 

When the appellate court in Wood again raised timeliness as

a possible ground for dismissal and ordered supplemental

briefing, the state dedicated more than two-thirds of its

briefing to the merits, indicating continued reliance on its

merits defense. Here, when asked to address exhaustion at

oral argument, the Community again relied on Alvarez’s

failure to file a motion for commutation or a habeas petition,

but said almost nothing about his failure to take a direct

appeal.
ALVAREZ V. TRACY 33

Not only is our case closely analogous to Wood, 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

defense on its own motion. 547 U.S. at 203–04. Day

involved a mistaken concession based on an arithmetic error: 

The state filed a document 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 error,” and emphasized that

“nothing in the record suggest[ed] that the State

‘strategically’ withheld the defense or chose to relinquish it.” 

Id. at 211. Day, in short, was about a mistake.

What we have here is no mistake. It is the omission of a

legal argument based on facts well known to both parties. 

The Community didn’t absent-mindedlyoverlook exhaustion

or miscalculate a deadline. Failure to exhaust was part of its

defense strategy and, in support thereof, it enumerated three

nonexhausted tribal-court remedies. But it never relied on

Alvarez’s most obvious omission: his failure to file a direct

appeal. Because we must assume that the Community has

knowledge of its own remedies and filing deadlines

(knowledge the majority ascribes to a man with a seventhgrade education who represented himself), this looks very

much like a case where the Community “deliberately steered

the District Court away from” the direct appeal issue. Wood,

132 S. Ct. at 1835. If Wood allows waiver by anything short

of express disavowal of a defense, as it surely does, then this

case is it.

2. Because the Community waived a defense based on

Alvarez’s failure to take an appeal, we lack discretion to raise

this exhaustion defense sua sponte. But even if the

Community’s conduct did not amount to a waiver, we would
34 ALVAREZ V. TRACY

still lack discretion to consider the defense because Wood’s

second prong is unsatisfied.

Wood held that only “where the petitioner is accorded a

fair opportunity to present his position, may a . . . court

consider the defense on its own initiative.” Wood, 132 S. Ct.

at 1833–34. Alvarez was not “accorded a fair opportunity to

present his position” because he has never been presented

with the majority’s homespun theory. As noted, the

Community did not raise a defense grounded in Alvarez’s

failure to exhaust direct appeals before the district court or in

its briefs on appeal. So Alvarez never had a chance to state

his position in the customary way—by responding to his

opponent’s arguments.

A week before oral argument, we issued an order alerting

the parties to “be prepared to address whether this court has

jurisdiction over this appeal,” making specific reference to

“25 U.S.C. § 1303 as discussed in Jeffredo v. Macarro,

599 F.3d 913, 918 (9th Cir. 2010).” Not surprisingly, the

discussion at oral argument concerned whether we have

jurisdiction. Whether a court hasjurisdiction is a question far

different from whether it should exercise jurisdiction. Both

concepts have “jurisdiction” in their name but they have little

else in common. Alvarez therefore had no opportunity to

weigh in on issues peculiar to the exercise of jurisdiction,

such as whether the Community bypassed its exhaustion

argument deliberately or whether the interests of comity and

efficiency weigh in favor of abstention.

If my colleagues thought we might dismiss the appeal on

prudential grounds, they said nothing about it. Alvarez’s

lawyer had no reason to address an issue no one had raised,

nor did the Community raise the point post-argument in any
ALVAREZ V. TRACY 35

of its numerous 28(j) letters. The first time Alvarez will have

heard the majority’s theorywill be when he reads the opinion,

and the first chance he will have to address it will be in his

petition for rehearing. I don’t think that’s what the Supreme

Court had in mind when it told us that a court may “consider

the defense on its own initiative” only in cases “where the

petitioner is accorded a fair opportunity to present his

position.” Wood, 132 S. Ct. at 1834.

An opportunity to respond is especially important

because, as the majority acknowledges, whether we should

decline to exercise our jurisdiction involves an entirely

different inquiry than whether we have jurisdiction at all. 

The discretionary decision whether to exercise jurisdiction is

a complex and nuanced one as to which a skilled advocate

such as Alvarez’s current counsel would have a great deal to

say. Not only do my colleagues rush to judgment without

pausing to hear Alvarez’s view of the material, we have not

heard the Community’s position—except, perhaps, that the

Community would be happy to win on whatever ground

pleases the court. I find it hard to understand how the

majority can be confident of its answer to this important

question without any input from the parties.

Appellate courts “are particularly ill suited to consider

issues forfeited below. Unlike district courts, courts of

appeals cannot permit a State to amend its answer to add a

defense, nor can they develop the facts that are often

necessary to resolve questions of timeliness.” Wood, 132 S.

Ct. at 1836 (Thomas, J., concurring in the judgment). If there

are additional facts that bear on our exercise of discretion,

we’re in no position to consider them. If Alvarez has

arguments against the majority’s view that I haven’t thought

of, we don’t know what they are. The majority’s opinion in
36 ALVAREZ V. TRACY

this case provides a cautionary tale about what happens when

a court abandons the case the parties briefed and argued, and

goes off based on its own pet theory.

3. Even if the Community’s waiver had been inadvertent,

and even if Alvarez had a fair opportunity to present his

position, that would only permit—not obligate—us to

consider an exhaustion argument. Wood makes clear that the

discretion to address such unraised arguments “should [be]

reserve[d] . . . for use in exceptional cases.” Wood. 132 S. Ct.

at 1834 (emphasis added). The Community’s failure to raise

Alvarez’s nonexhaustion of direct appeal hardly qualifies as

exceptional. It is not the result of an obvious and inadvertent

error, immediately apparent to everyone once it’s pointed out,

as was true in Day. Nor is this a case where the Community

would be severely prejudiced by our adjudication of the

merits: Had the Community cared about exhaustion, it would

at least have kept alive the exhaustion defenses it did raise in

district court. Were we 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 sovereignty and the tribal

exhaustion requirement” are always “exceptional.” Maj. Op.

20. In our circuit, therefore, tribes will no longer need to

raise an exhaustion defense in federal habeas proceedings; we

will do it for them. That’s a remarkable inversion of our

normal practice, and entirely inconsistent with the principles

underlying Wood.

The majority’s conclusion is drawn from a patchwork of

inapplicable case-law, improper inferences and acontextual

dicta. My colleagues first suggest that a tribe’s blanket
ALVAREZ V. TRACY 37

immunity from our normal waiver doctrine can be derived

from Granberry. But Granberry makes clear that “if a full

[proceeding] has been held in the district court and it is

evident that a miscarriage of justice has occurred,” it is

normally “appropriate for the court of appeals to hold that the

nonexhaustion defense has been waived in order to avoid

unnecessary delay in granting relief.” 481 U.S. at 135. 

Granberry therefore directs us to at least peek at the merits of

a habeas petition in order to determine whether a case is

“exceptional.” The majority’s categorical rule—untethered

from the merits of the petition or the potential injustice that

denial of review may cause—plainly contravenes

Granberry’s instruction.

Unable to find support in Granberry’s holding or

reasoning, the majority relies on misreading the opinion’s

dicta. According to the majority, “the Court [in Granberry]

characterized the tribal exhaustion requirement as an

‘inflexible bar to consideration of the merits’ that may not be

waived.” Maj Op. 20. The Granberry Court did no such

thing. The “inflexible bar” language that the majority cites

comes from the following sentence: “At the other extreme,

we might treat nonexhaustion as an inflexible bar to

consideration of the merits of the petition by the federal

court.” Granberry, 481 U.S. at 131 (emphasis added). That

“extreme” option was precisely what Granberry rejected: 

“We are not persuaded by either of the extreme positions. 

The appellate court is not required to dismiss for

nonexhaustion notwithstanding the State’s failure to raise it.” 

Id. at 133.

True, the “inflexible bar” language is followed by a cf.

cite to two tribal exhaustion cases. But that’s merely

intended to point to an analogous area of law—tribal civil
38 ALVAREZ V. TRACY

cases—where the exhaustion requirement is stronger than in

the habeas context. I don’t understand how Granberry, while

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

an exhaustion argument to only “exceptional cases,”

intended—through a cf. cite—to carve out a special

exemption from that rule for tribal habeas petitioners. It’s

even further afield to then conclude, as the majority does, that

this exemption is so powerful that tribal exhaustion

arguments are per se unwaivable, irrespective of a petition’s

underlying merits—the precise result Granberry explicitly

disclaims.

The majority tries hard to bolster its reading of Granberry

by referencing civil cases where we have stayed actions

pending exhaustion of tribal remedies. See Marceau v.

Blackfeet Tribal Authority, 540 F.3d 916, 921 (9th Cir. 2008)

(“[T]he district court should stay, rather than dismiss, the

action against the Housing Authority while Plaintiffs exhaust

their tribal court remedies”); Allstate Indemnity Corporation

v. Stump, 191 F.3d 1071, 1076 (9th Cir. 1999), amended

197 F.3d 1031 (9th Cir. 1999) (“[T]he district court should

stay the action while Allstate exhausts its remedies in tribal

court”). But the Supreme Court has made clear that federal

review through habeas corpus—the only remedy explicitly

provided for in ICRA—is very different from ordinary civil

litigation involving Indian tribes. See Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 70–71 (1978).1

In the civil context, a

1 Understanding the origins of our tribal exhaustion jurisprudence in

civil cases helps explain why mechanically applying it to the habeas

context is so wrong. Before the Supreme Court’s 1978 decision in

Martinez, several lower courts had implied a private right of action in

federal court to enforce ICRA’s “bill of rights”—Section 1302. See, e.g.,

Johnson v. Lower Elwha Tribal Cmty. of Lower Elwha Indian

Reservation, 484 F.2d 200, 201 (9thCir. 1973). In Martinez, the Supreme
ALVAREZ V. TRACY 39

stringent exhaustion requirement is needed to limit excessive

litigation against tribes, which may “undermine the authority

of tribal forums . . . [and] impose serious financial burdens on

already ‘financially disadvantaged’ tribes.” Id. at 64. But 

ICRA’s habeas provision “protect[s] the individual interests

[of tribe members] while avoiding unnecessary intrusions on

tribal governments.” 436 U.S. at 67. That’s why, when

enacting ICRA, Congress struck “the balance between [its]

statutory objectives . . . [by] providing only for habeas corpus

relief [and not a civil remedy].” Id. at 66.2 By mechanically

Court held that ICRA does not provide such an implied cause of action. 

436 U.S. 49 at 72. But plaintiffs soon found another way to bring civil

claims against tribes: “Rather than attacking [a] tribal action directly as

violative of a specific provision of [ICRA], litigants began filing federal

complaints alleging an absence oftribal power to engage in the challenged

activity, thereby recasting the dispute as jurisdictional in nature.” Laurie

Reynolds, Exhaustion of Tribal Remedies: Extolling Tribal Sovereignty

While Expanding Federal Jurisdiction, 73 N.C. L. Rev. 1089, 1100–01

(1995). The abstention doctrine articulated in Nat’l Farmers Union Ins.

Cos. v. Crow Tribe of Indians was a response to the specific context of

post-Martinez civil litigation. See 471 U.S. 845, 849 n.3 (1985). In

National Farmers, “the Supreme Court agreed that these jurisdictional

challenges did indeed arise under federal law for the purpose of

establishing federal question jurisdiction, but instructed the lower courts

to stay their hand until the litigants had exhausted their tribal remedies.” 

Reynolds, 73 N.C. L. Rev. at 1101. There can be little doubt, therefore,

that the strong abstention doctrine articulated in National Farmersrelates

only to that category of litigation affected by Martinez. Since Martinez

explicitly left habeas claims untouched, it is wrong to infer that the

National Farmers abstention doctrine is applicable to habeas.

2 According to the majority, Martinezsupports the conclusion that “even

when evaluating a habeas petition, we must be mindful of our obligation

to avoid ‘intrud[ing] needlessly on tribal self-government.’” Maj. Op. 22

(quoting Martinez, 436 U.S. at 71). The actual context of that quote is as

follows: “[G]iven Congress’ desire not to intrude needlessly on tribal

self-government, it is not surprising that Congress chose at this stage to
40 ALVAREZ V. TRACY

applying the exhaustion doctrine designed for civil litigation

to habeas proceedings, the majority disturbs the sensitive

balance between group autonomy and individual rights that

Congress sought to preserve. And it goes without saying that

the harm caused by staying a civil case pending resolution of

a tribal proceeding is negligible compared to that caused by

dismissing a prisoner’s habeas petition when he has no

alternative recourse.

Unsurprisingly, the majority can’t find a single case in

any circuit holding that a court may deny habeas relief solely

on the basis of an exhaustion argument it raised sua sponte. 

Every case 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 context to habeas, where

vital liberty interests are at stake. That’s doubly true in

Indian law, where ICRA’s habeas provision has been singled

out—both by Congress and the Supreme Court—as the sole

bulwark against potential “injustices perpetrated by tribal

governments.” Martinez, 436 U.S. 49 at 66 (internal

quotation marks omitted). The line of non-habeas cases the

majority relies on, therefore, is no foundation for a blanket

exemption for tribes from our ordinary rules of waiver in the

habeas context.

In a final hail mary attempt at justifying why tribal

exhaustion cases are per se “exceptional,” the majority

invokes “our general duty to avoid deciding unnecessary

issues.” Maj. Op. 25 (quoting Turner v. U.S. Parole

Comm’n, 810 F.2d 612, 613 n.3 (7th Cir. 1987)). But what

could possibly be “unnecessary” about deciding whether

provide for federal review only in habeas corpus proceedings.” Martinez,

436 U.S. at 71.
ALVAREZ V. TRACY 41

Alvarez’s fundamental rights have been violated? The

majoritystresses that Alvarez’s confrontation clause and right

to jury claims present difficult and unresolved issues of

federal law. Are we really to leave a man imprisoned with no

remedy because we fear we’re not up to the task of resolving

hard legal questions? Avoidance canons do not permit us to

avoid our basic duties as a court of law.

Moreover, while the majority privileges considerations of

comity over Alvarez’s rights at every turn, any comity

interests implicated here are less than compelling because the

Community’s process seems to be designed to deny convicted

defendants a fair chance to appeal. The Community provides

only five days in which to appeal a conviction, even though

many litigants, like Alvarez, lack counsel. According to

Alvarez, and undisputed by the Community, the facility in

which he was incarcerated had no law library, so he didn’t

have even the theoretical possibility of researching the law

and identifying any errors in his trial or figuring out when and

how to appeal them. After the trial concluded and Alvarez

was sentenced, the judge did not remind him of his right to

appeal or tell him when and how to exercise it.

The only time Alvarez might have been informed of the

five-day deadline for filing his appeal was at his arraignment,

nearly five months prior to his sentencing, and there’s no

evidence that Alvarez was given this information even then. 

After the Community court sentenced him, he was not given

a notice-of-appeal form, provided written instructions, or told

how or where to file. The Community seems to have done

everything in its power to prevent Alvarez from appealing his

conviction. This may, in fact, be why the Community has

chosen (wisely, in my view) not to rely on failure to appeal in

making its exhaustion argument.
42 ALVAREZ V. TRACY

“[I]t would be nothing less than abdication of our

constitutional duty and function to rebuff petitioners with this

mechanical [exhaustion] formula whenever it may become

clear that the alleged state remedy is nothing but a procedural

morass offering no substantial hope of relief.” Marino v.

Ragen, 332 U.S. 561, 564 (1947) (Rutledge, J., concurring). 

Such is the case here; Alvarez—and our system of

justice—deserve better. Because these allegations, if borne

out, would demonstrate a grave miscarriage of justice, we

should not raise failure to exhaust sua sponte.

B

Even if the Community had preserved its nonexhaustion

defense, it is unavailing. We have observed that in evaluating

such a defense, “we must first ascertain whether any

meaningful tribal remedies exist, and, if so, whether

exhaustion will in any way serve the purposes for which it is

intended.” St. Marks, 545 F.2d at 1189.

As we said nearly forty years ago: “That remedies are

available in theory, but not in fact, is not synonymous with

failure to exhaust remedies. That ineffective and meaningless

procedures were available to petitioner does not preclude his

seeking a writ of habeas corpus.” United States ex rel. Cobell

v. Cobell, 503 F.2d 790, 794 (9th Cir. 1974). The order

issued by the tribal court in Cobell “contained no invitation

to participate in tribal appellate processes,” id. at 793–94, and

neither did Alvarez’s judgment of conviction. In neither our

case nor Cobell did the trial judge explain to the losing party

that he could challenge the judgment by way of an appeal.

Contrary to the majority’s suggestion, Selam v. Warm

Springs Tribal Corr. Facility, 134 F.3d 948 (9th Cir. 1998),
ALVAREZ V. TRACY 43

underscores why we must reach the merits here. Selam was

represented by a lay Tribal Spokesperson who mounted a

diligent defense notwithstanding Selam’s unwillingness to

assist. See id. at 950. When Selam lost at trial, “the tribal

court judge informed Selam that he could appeal his

convictions to the tribal court of appeals.” Nothing of the sort

happened here. What’s more, Selam did appeal, and raised

six grounds of error, “indicating that he did not consider his

appeal futile.” Id. Selam was in much the same position as

the Community here with respect to exhaustion: He made a

deliberate choice to raise some claims but not others. 

Consequently, we declined to excuse his failure to exhaust

additional claims presented for the first time in his habeas

petition. Why are we treating the Community here better

than we did Selam?

The majority effectively holds that a defendant’s right to

federal habeas review under ICRA is always and entirely

supervenient on his compliance with tribal procedure, no

matter how fundamentally unfair that procedure may be. Cf.

Lee v. Kemna, 534 U.S. 362, 375 (2002) (state prisoners are

entitled to federal habeas review when their procedural

default is the result of inadequate state procedures); Hoffman

v. Arave, 236 F.3d 523, 531 (9th Cir. 2001) (federal habeas

review is not precluded unless “the defendant has had a

reasonable opportunity to have the issue as to the claimed

[federal] right heard and determined by the State court”)

(internal quotation marks omitted). And, unlike state

prisoners, those convicted by a tribal court who miss their

appeal deadline will be permanentlybarred from federal court

even if there is both “cause” and “prejudice” for their failure

to exhaust, and even if such a result is a “fundamental

miscarriage of justice.” Cf. Coleman v. Thompson, 501 U.S.

722, 750 (1991) (claims not presented to a state court will not
44 ALVAREZ V. TRACY

be defaulted if “the prisoner can demonstrate cause for the

default and actual prejudice . . . or demonstrate that failure to

consider the claims will result in a fundamental miscarriage

of justice.”); Franklin v. Johnson, 290 F.3d 1223, 1231 (9th

Cir. 2002) (“If a petitioner failed to present his claims in state

court and can no longer raise them through any state

procedure, state remedies are no longer available, and are

thus exhausted”). It’s particularly inequitable to treat tribal

prisoners so much worse than their state counterparts in light

of the fact that there is no right to counsel in tribal courts. 

Under the majority’s rule, uncounseled tribal defendants

subject to flagrantly unlawful convictions and fundamentally

unfair procedural bars can nonetheless be prevented from

obtaining federal habeas review. No other category of person

subject to criminal jurisdiction in the United States gets

anything close to such shabby treatment.

Moreover, the majority’s holding permits a tribe to

effectively nullify section 1303 of ICRA through artful

manipulation of its courts’ appellate procedures. A tribe

could, for example, create a five-minute time-limit to appeal

a tribal court’s decision and, under the majority’s newly

minted rule, a prisoner’s failure to comply would constitute

a permanent bar to federal habeas relief. By establishing

mandatory dismissal of unexhausted claims, the majority

implicitly blesses the legitimacy of even such absurdly

truncated time requirements.3

3 The majority maintains that failure to exhaust can be excused when

“exhaustion would have been futile or [] the tribal court of appeals offered

no adequate remedy.” Maj. Op. 11. But since the majority holds that

futility and/or lack of remedy must be present at the time the tribal appeal

could have been filed—rather than the time at which the federal petition

is filed—these exceptions are practically worthless. Even a five minute

(or thirty-second) appellate window still technically offers an “adequate
ALVAREZ V. TRACY 45

The majority reserves the possibility that ICRA’s due

process clause might offer a defendant some protection in “an

extreme case.” Maj. Op. 15 n.7. But how is this not an

extreme case? Alvarez’s situation is arguably worse than a

defendant subject to a five-minute appeal window—his

compliance with tribal procedure was practically impossible,

given not only the short deadline, but his absence of counsel,

lack of notice and inability to access even rudimentary legal

materials. If ICRA’s due process provision doesn’t apply to

Alvarez, I fail to see how it will apply to anyone. By denying

federal habeas review in even the extreme circumstances

present here, the majority renders ICRA’s due process

protections chimerical, and places tribe members’ capacity to

vindicate their federal rights entirely at the whim of their

tribes. That’s hardly faithful to the delicate balance between

individual and group rights Congress sought to maintain

when enacting ICRA.

Finally, even if a direct appeal within the Community

court system were a meaningful remedy, we should still

decline to enforce the exhaustion requirement because any

marginal benefit it provides in terms of “preserv[ing] and

strengthen[ing] tribal institutions,” St. Marks, 545 F.2d at

1189, is far outweighed by the need to adjudicate the serious

deprivations of rights that Alvarez alleges. See pages 37–38

supra. As we have repeatedly held, “[t]he exhaustion

requirement is not an inflexible one.” St. Marks, 545 F.2d at

1189; see also Cobell, 503 F.2d at 793; Selam, 134 F.3d at

953. If the majority had any discretion to exercise, it abuses

it by refusing to exercise it in Alvarez’s favor.

remedy” which is not “futile.” The issue is not whether a tribal remedy

theoretically exists, but whether a prisoner can meaningfully avail himself

of that remedy.
46 ALVAREZ V. TRACY

II

Alvarez claims that he was denied his jury trial and

confrontation rights. See 25 U.S.C. § 1302(a)(6), (10). 

Although the majority sees no need to give his allegations

anything more than passing mention, a closer look at

Alvarez’s trial and conviction reveals the serious wrong he

has suffered, and the high price he has paid as a result.

A

1. ICRA provides that “[n]o Indian tribe in exercising

powers of self-government shall deny to any person accused

of an offense punishable by imprisonment the right, upon

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

25 U.S.C. § 1302(a)(10) (emphasis added). As with the

Community’s nonexhaustion defense, this jury trial right may

be waived by “an intentional relinquishment or abandonment

of a known right or privilege.” Johnson, 304 U.S. at 464

(emphasis added). Whether this standard is met “depend[s],

in each case, upon the particular facts and circumstances

surrounding that case, including the background, experience,

and conduct of the accused.” Id.

According to the Community, it was obligated to provide

Alvarez only with a right to a jury trial as defined by ICRA,

and ICRA provides for a jury only “upon request.” The

Community therefore argues that its obligation to provide a

jury wasn’t triggered until Alvarez made such a request. But

the Community fails to explain how Alvarez would have

known that he was required to make a request. Its theory

seems to be that Alvarez must be presumed to know the law,

including every jot and tittle in ICRA. But if we presume that

kind of knowledge, what’s the point of informing criminal
ALVAREZ V. TRACY 47

defendants of any rights? The presumption in criminal cases

is precisely the reverse: Defendants don’t know their rights

and so we must tell them.

Alvarez was never told he had to ask for a jury. The

Community produced the affidavit of Carleton J. Giff, who

prosecuted Alvarez in the Community court. Giff states that

a “‘Defendant’s Rights’ form was routinely stapled to each

criminal complaint provided to the defendant prior to

arraignment,” and notes that “the rights would have been

routinely read at the beginning of each arraignment docket.” 

This speaks only to the Community’s general practice, not to

what happened in Alvarez’s case. Giff does not produce a

copy of Alvarez’s Complaint with a rights form attached, nor

does he claim he remembers that Alvarez was apprised of his

rights. And the Defendant’s Rights form Giff attaches to his

affidavit says only “[y]ou have the right to a jury trial.” It

does not tell defendants that they must ask for a jury, or when

and how they must do so.

A transcript of Alvarez’s arraignment has the judge

saying that Alvarez had been informed of his legal rights, and

asking if Alvarez had any questions about them, to which

Alvarez answered that he did not. But there is no reference

to which rights he was informed of and in what terms. How

would a man with a seventh-grade education have known

whether he was advised of all of his rights, or whether they

were stated fully and accurately? And why wasn’t Alvarez

advised of his rights on the record by a judge rather than off

the record by an unidentified nobody?

We advise defendants of their rights because we presume

they don’t know them. Judges perform the advisement to

impress defendants with their importance. And we do it on
48 ALVAREZ V. TRACY

the record so we can later confirm that nothing was omitted

or misstated. Are tribal courts so disdainful of defendants’

rights that such formalities are routinely omitted? This, after

all, was not traffic court; Alvarez got eight years behind bars.

The most we can infer on this record is that someone may

have read Alvarez some rights, not whether they were all read

or whether they were accurately stated. And the judge

himself only explicitly mentioned one right: “Mr. Alvarez,

sir, you may be eligible for counsel through Four Rivers

Indian Legal Services. If you are not eligible, you will be

responsible for obtaining counsel on your own. And this will

then be at a cost to you.” Counsel for the Community

conceded at oral argument before us that we have no evidence

that Alvarez was actually advised of any other rights.

Clearly, the means of invoking a right—and even the fact

that a right must be specifically invoked—is critical

information for a defendant planning his defense. There is no

legitimate reason for the Community’s systematic failure to

advise defendants that they must request a jury if they want

one. By failing to address the issue in this case, we are

allowing the Community and perhaps other tribal

jurisdictions to continue to deprive countless defendants of

their right to trial by jury.

2. When the Supreme Court first held that the Sixth

Amendment jury trial right was waivable, it was careful to

defend its decision against those who feared that uninformed

and unsophisticated defendants may waive their right to a

jury against their best interests. Acknowledging that the right

at common law was not waivable, the Court pointed out that

the modern rule is a product of changes in the broader

criminal justice regime: “Such a course raised up a sort of a
ALVAREZ V. TRACY 49

barrier which the court could utilize when a prosecution was

successful which ought not to have been successful, or when

a man without money, without counsel, without ability to

summon witnesses, and not permitted to tell his own story,

had been unjustly convicted, but yet under the ordinary

principles of waiver, as applied to civil matters, had waived

every defect in the proceedings.” Patton v. United States,

281 U.S. 276, 307–08 (1930). It was plausible to permit

waiver under the modern regime, however, due to the

emergence of other procedural protections: “The man now

charged with crime is furnished the most complete

opportunity for making his defense. He may testify in his

own behalf; if he be poor, he may have counsel furnished him

by the state, and may have his witnesses summoned and paid

for by the state.” Id. at 308. But no such protections were

afforded Alvarez; the Community court seems to be much

closer to the rough and tumble justice of the common law

courts.

While ICRA spells out what rights are to be accorded

criminal defendants in tribal courts, it doesn’t specify how

those rights are to be invoked or waived. Congress left that

to judicial interpretation. In performing that function we

must take into account the practical realities of the tribalcourt proceedings, including the fact that many defendants

are forced to represent themselves. Although some of the

rights provided by ICRA are more deferential to tribes than

the Bill of Rights, the Act nevertheless seeks to “‘protect

individual Indians from arbitrary and unjust actions of tribal

governments,’” in light of the fact that “the most serious

abuses of tribal power had occurred in the administration of

criminal justice.” Martinez, 436 U.S. at 61, 71 (quoting S.

Rep. No. 841, 90th Cong., 1st Sess., 5–6 (1967)).
50 ALVAREZ V. TRACY

It is hardly an intrusion on the sovereignty and integrity

of tribes to require that they inform defendants of the full

nature of their rights, including when and how they must

invoke them. Insisting that tribes do so advances tribal

sovereignty by ensuring that these issues are fully and fairly

litigated within the tribal system rather than having them

show up on our doorstep after a defendant has fully served his

sentence. Happily, this is a case where both legislative

interests—respecting tribal sovereignty and protecting the

procedural rights of defendants—point to the same answer.

The denial of the right to a jury trial is a structural error

requiring automatic reversal of a conviction. Sullivan v.

Louisiana, 508 U.S. 275, 281 (1993). Moreover, the

Community has never alleged that the denial of a jury in

Alvarez’s case was harmless, despite raising such a defense

with respect to his confrontation claim. Cf. O’Neal v.

McAninch, 513 U.S. 432, 444 (1995). Accordingly, we must

vacate Alvarez’s conviction.

B.

Alvarez also claims that the Community court violated his

right to confrontation when it admitted the complaining

witness’s statements through the testimony of Officer

Benally. ICRA provides that “[n]o Indian tribe in exercising

powers of self-government shall deny to any person in a

criminal proceeding the right . . . to be confronted with the

witnesses against him.” 25 U.S.C. § 1302(a)(6). Because

this mirrors the Sixth Amendment guarantee that “the accused

shall enjoy the right . . . to be confronted with the witnesses

against him,” we may apply caselaw interpreting the federal

constitutional right to its ICRA analogue. Randall v. Yakima

Nation Tribal Court, 841 F.2d 897, 900 (9th Cir. 1988)
ALVAREZ V. TRACY 51

(“Where the rights are the same under either [the federal or

tribal] legal system, federal constitutional standards are

employed in determining whether the challenged procedure

violates [ICRA].”).

Alvarez’s trial occurred before the Supreme Court

decided Crawford v. Washington, 541 U.S. 36 (2004), so his

confrontation claim must be evaluated under Ohio v. Roberts,

448 U.S. 56 (1980). In that case, the Court held that out-ofcourt statements could be introduced at trial only if the

declarant is unavailable and the statements bear adequate

indicia of reliability. Id. at 66.

The district court did not assess whether the Community

court violated Alvarez’s confrontation right, instead relying

on its conclusion that any error that may have occurred was

harmless because Alvarez confirmed the truth of the out-ofcourt statements. This logic is dubious: Alvarez only

affirmed that “everything that [Officer Benally] says it be

true,” following and in response to the alleged confrontation

violation. And as the prosecutor stated at trial, “the

statements on the record of the defendant . . . are not

evidence,” and the “only things that could be considered by

the Court is what is testified to.”

Roberts observed that “[a] witness is not ‘unavailable’ for

purposes of the . . . exception to the confrontation

requirement unless the prosecutorial authorities have made a

good-faith effort to obtain his presence at trial,” and that

“[t]he lengths to which the prosecution must go to produce a

witness . . . is a question of reasonableness.” Id. at 74

(citations omitted). In this case, the lengths to which the

prosecution went to produce the victim consisted of issuing

a subpoena, which was “left at the party(ies) usual place of
52 ALVAREZ V. TRACY

abode with a person of suitable age and discretion who

resides at the party(ies) usual place of abode.” The

Community argues that this is sufficient to show

unavailability because it is all that the Community’s own

laws required it to do, but this is untenable under Roberts,

which speaks in terms of “good-faith effort” and

“reasonableness.” If dropping off a subpoena at a witness’s

home were enough, the good-faith effort and reasonableness

requirements would be meaningless.

Officer Benally testified that when a prosecution witness

fails to appear, “[s]ometimes they’ll do a continuance or

warrant or whatever they see is appropriate, depending on the

circumstance,” including, in some cases, prosecuting

witnesses for failing to respond to a subpoena. The record

reflects no such efforts in Alvarez’s case. Neither the

prosecution nor the court went to any trouble to bring the

witness into court. The trial was not continued when the

victim of the alleged crime failed to appear. No bench

warrant was issued; no constable was sent to bring her into

court. Confronted with an uneducated defendant who had no

one trained in the law to speak for him, the court and the

prosecutor took the easy way out by conducting a trial based

on hearsay.

The fact that the Community court let the prosecution get

away with such tactics doesn’t mean that they were

reasonable, much less that they represented a good-faith

effort to produce the witness. See Wilson v. Bowie, 408 F.2d

1105, 1106–07 (9th Cir. 1969) (finding that a witness was not

unavailable when “the only explanation given by the State . . .

for [the witness’s] absence was the prosecution’s statement

that it had attempted to subpoena [him],” and “there was no

showing that [the witness] could not appear in court on
ALVAREZ V. TRACY 53

another day”). Indeed, knowing Alvarez’s lack of

sophistication and the potential value of having his victim

testify, the prosecution had an even greater duty to ensure that

she was present at Alvarez’s trial. The Community court

certainly did.

Although it’s perfectly clear that the Community violated

Alvarez’s confrontation right by admitting the hearsay

testimony of Officer Benally, a separate question remains as

to whether the victim’s statements introduced through her

brother, which were largely duplicative of Officer Benally’s

testimony, fell within a hearsay exception, potentially

mooting the confrontation issue. See White v. Illinois,

502 U.S. 346, 356 (1992) (holding that unavailability need

not be shown under Roberts when the hearsay statement falls

within a hearsay exception providing sufficient inidicia of

reliability). Because we must reverse on jury trial grounds,

this issue needn’t detain us. Were this case to be retried by

the Community, however, and should the victim once again

fail to appear, the tribal court would have to consider whether

the testimony could nevertheless be introduced under the

standards of Crawford.

III

The majority errs in dismissing this case sua sponte based

on Alvarez’s failure to exhaust his direct appeals in the

Community court. Proceeding to the merits of Alvarez’s

petition, I would find that the Community violated Alvarez’s

right to a jury trial under ICRA by failing to inform him that

he needed to request a jury. This was a structural error fatally

undermining the conviction. Accordingly, I dissent.