                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


FORTINO ALVAREZ,                        No. 12-15788
             Petitioner-Appellant,
                                           D.C. No.
                v.                      2:08-cv-02226-
                                             DGC
RANDY TRACY, Acting Chief
Administrator for the Gila River
Indian Department of Rehabilitation        OPINION
and Supervision,
               Respondent-Appellee.


     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 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.

                            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 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


  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 ICRA does 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 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
                      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 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.
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 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.”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 time-
limit 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 self-
government 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 self-
government 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 (5th Cir. 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 “frequently depend 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 self-
government.” Id.

   Here, our decision to decline to assume jurisdiction over
Alvarez’s claims is consistent with the comity and self-

  12
     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 self-
government, 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 self-
government 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
possibility of 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-of-
limitations 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-mindedly overlook 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 seventh-
grade 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 has jurisdiction 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 theory will 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 (9th Cir. 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 of tribal 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 Farmers relates
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, Martinez supports 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
majority stresses 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 permanently barred 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 tribal-
court 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-of-
court 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-of-
court 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.
