Argued and Submitted April 15, 2013, San Francisco, California
Appeal from the United States District Court for the District of Arizona. D.C. No. 2:08-cv-02226-DGC. David G. Campbell, District Judge, Presiding.
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, 182 L.Ed.2d 733 (2012), and Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (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 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.
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.
Before: Alex Kozinski, Diarmuid F. O'Scannlain, and N. Randy Smith, Circuit Judges.
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
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, 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."  This statement was consistent with the right to appeal provided by the Gila River Indian Community Code. 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 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. 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) (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.'"
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 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 self-determination." 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 subject-matter jurisdiction." ). The Court concluded:
[T]he [exhaustion] rule is analogous to principles of abstention articulated in Colorado River Water Conservation Dist. v. 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. 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.
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.
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 self-government " 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."  Id.
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 an adequate remedy. Indeed, the record demonstrates that Community procedures allowed Alvarez to seek relief from his conviction and sentence. 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 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. 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 ...