Alvarez v. Tracy, 12–15788.

Citation773 F.3d 1011
Decision Date08 December 2014
Docket NumberNo. 12–15788.,12–15788.
PartiesFortino ALVAREZ, Petitioner–Appellant, v. Randy TRACY, Acting Chief Administrator for the Gila River Indian Department of Rehabilitation and Supervision, Respondent–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

773 F.3d 1011

Fortino ALVAREZ, Petitioner–Appellant
Randy TRACY, Acting Chief Administrator for the Gila River Indian Department of Rehabilitation and Supervision, Respondent–Appellee.

No. 12–15788.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 15, 2013.
Filed Dec. 8, 2014.

773 F.3d 1012

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, AZ, 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, AZ, for Respondent–Appellee.

Appeal from the United States District Court for the District of Arizona, David G. Campbell, District Judge, Presiding. D.C. No. 2:08–cv–02226–DGC.


Opinion by Judge N.R. SMITH ; Dissent by Judge KOZINSKI.


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, 107 S.Ct. 971, 94 L.Ed.2d 10 (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

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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.2010) ; 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, 105 S.Ct. 2447, 85 L.Ed.2d 818 (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. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 66, 98 S.Ct. 1670, 56 L.Ed.2d 106 (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 self-government 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.


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 (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

773 F.3d 1014

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 procedure allowed him to assert such grounds. In any event, the Community court denied the motion for commutation, because Alvarez's disciplinary infractions 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 court adopted the recommendation. Alvarez timely appealed, challenging the dismissal of his Confrontation Clause and right to jury trial claims.


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.


“ ‘[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, 107 S.Ct. 971 ) (second alteration in original). As such, “ ‘[t]he Supreme Court's policy of nurturing tribal self-government strongly discourages federal courts from assuming jurisdiction over unexhausted claims.’ ”

773 F.3d 1015

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, 107 S.Ct. 971. 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, 105 S.Ct. 2447. The non-Indian plaintiffs sought to enjoin execution of a tribal court judgment against their property. Id. at 848, 105 S.Ct. 2447. The district court entered the injunction, concluding that the tribal court did not have jurisdiction over non-Indians' property. Id. at 848–49, 105 S.Ct. 2447. 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, 105 S.Ct. 2447. The Court reasoned that “Congress is committed to a policy of supporting tribal self-government and self-determination.” Id. at 856, 105 S.Ct. 2447. Such policy favors allowing tribal courts “the first opportunity to evaluate the factual and legal bases for the challenge” to the tribal court's...

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