                     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
 RON LOPEZ,* Chief Administrator for
 the Gila River Indian Department of
 Rehabilitation and Supervision,                    ORDER AND
                 Respondent-Appellee.                OPINION


         Appeal from the United States District Court
                  for the District of Arizona
         David G. Campbell, District Judge, Presiding

             Argued and Submitted April 15, 2013
                  San Francisco, California

                      Filed August 30, 2016

       Before: Alex Kozinski, Diarmuid F. O’Scannlain,
             and N. Randy Smith, Circuit Judges.




   *
      Ron Lopez succeeded Randy Tracy as Chief Administrator. We
substitute him for Tracy pursuant to Federal Rule of Appellate Procedure
43(c)(2).
2                       ALVAREZ V. TRACY

                Opinion by Judge Kozinski;
               Concurrence by Judge Kozinski;
      Partial Concurrence and Partial Dissent by Judge
                        O’Scannlain


                           SUMMARY**


                          Habeas Corpus

    The panel granted a petition for panel rehearing; withdrew
an opinion and dissent filed December 8, 2014; filed a new
opinion and dissent; and denied a petition for rehearing en
banc as moot in a case in which the panel, in the new opinion,
reversed the district court’s denial of a federal habeas petition
brought by Fortino Alvarez, an enrolled member of the Gila
River Indian Community, who sought relief from his tribal-
court conviction.

    Under the Indian Civil Rights Act (ICRA), Indian tribes
may not deny criminal defendants facing imprisonment “the
right, upon request, to a trial by jury.” Alvarez sought habeas
relief on the theory that the Community deprived him of that
right by failing to inform him that he would only receive a
jury upon request.

    After reviewing new information presented in Alvarez’s
petition for panel rehearing and the parties’ supplemental
briefs, the panel concluded that the Community deliberately
waived any non-exhaustion defense stemming from Alvarez’s

  **
     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

failure to file a direct appeal. That waiver precluded the
panel from raising non-exhaustion sua sponte.

    The panel did not need to resolve whether the jury-trial
rights accorded by ICRA and the Sixth Amendment are
equivalent. Assuming that the balancing test in Randall v.
Yakima Nation Tribal Court, 841 F.2d 897 (9th Cir. 1988),
applies, the panel concluded that Alvarez’s interests in
understanding the full contours of his rights outweigh any
interests the Community might have here. The panel wrote
that the Community’s handling of Alvarez’s case falls short
of the “fair treatment” required by ICRA, which includes the
right to know that he would forfeit his right to a jury unless
he affirmatively requested one.

    Because the denial of the right to a jury trial is a structural
error, it requires automatic reversal, and the panel remanded
to the district court with instructions to grant the petition for
a writ of habeas corpus.

    In a concurring opinion, Judge Kozinski wrote that this
appeal gives no occasion to consider a rat’s nest of problems
with the Community’s justice system. He wrote that perhaps
the Community and others like it will take this opportunity to
reconsider the dubious procedures they employ in their
criminal courts.

    Judge O’Scannlain concurred in the court’s determination
that the Community deliberately waived its non-exhaustion
defense. He dissented from the court’s conclusion that the
Community denied Alvarez his “right, upon request, to a trial
by jury” when Alvarez never requested a jury. He wrote that
rather than analyze the scope of Alvarez’s jury-trial right
4                  ALVAREZ V. TRACY

under ICRA, the majority applies an unmoored balancing test
without giving a reason to do so.


                       COUNSEL

Daniel L. Kaplan (argued) and Keith J. Hilzendeger,
Assistant Federal Public Defenders; Jon M. Sands, Federal
Public Defender; Office of the Federal Public Defender,
Phoenix, Arizona; for Petitioner-Appellant.

Thomas L. Murphy (argued), Deputy General Counsel; Linus
Everling, General Counsel; Gila River Indian Community
Office of the General Counsel, Sacaton, Arizona; for
Respondent-Appellee.

Barbara Creel, Professor of Law and Director of Southwest
Indian Law Clinic, University of Mexico School of Law,
Albuquerque, New Mexico; Tova Indritz, Co-Chair, Native
American Justice Committee, National Association of
Criminal Defense Lawyers, Albuquerque, New Mexico; for
Amicus Curiae National Association of Criminal Defense
Lawyers and Barbara Creel.
                    ALVAREZ V. TRACY                        5

                          ORDER

    The petition for panel rehearing is GRANTED. The
opinion and dissent filed on December 8, 2014 and published
at 773 F.3d 1011 are withdrawn. They are replaced by the
new opinion and dissent filed concurrently with this order.
The pending petition for rehearing en banc is DENIED as
moot. The parties may file new petitions for panel rehearing
or rehearing en banc within 14 days.



                         OPINION

KOZINSKI, Circuit Judge:

    We consider whether an Indian tribe violated a criminal
defendant’s rights by failing to inform him that he could
receive a jury trial only by requesting one.

                          FACTS

    Fortino Alvarez is an enrolled member of the Gila River
Indian Community (the “Community”). In April of 2003,
Alvarez (then 20) showed up drunk at the home of his
girlfriend (then 15). Following a brief argument, Alvarez
struck his girlfriend with a flashlight. When she attempted to
retreat, Alvarez pulled a knife. The girlfriend’s brother then
stepped outside to confront Alvarez. Alvarez clubbed him
too. Alvarez then took his leave, but not before informing his
victims that he would soon return to kill their entire family.

   Alvarez was picked up by the Community police and
charged with assault, domestic violence, criminal threats, and
6                          ALVAREZ V. TRACY

misconduct involving a weapon.         According to the
Community, Alvarez received a “Defendant’s Rights” form
along with the criminal complaint. The Defendant’s Rights
form said: “You have the right to a jury trial.” The form
didn’t explain what Alvarez needed to do in order to invoke
that right.

    At a group arraignment, the judge stated that Alvarez had
been informed of his rights.1 The judge then asked Alvarez
if he had any questions about those rights. He said that he
didn’t. At a bench trial four months later, Alvarez
represented himself. He presented no evidence, no witnesses,
no case, and no closing argument. When the judge asked
Alvarez whether he wished to cross-examine the
government’s key witness, Alvarez conceded that everything
the witness had said was true. Alvarez was convicted on all
counts except making criminal threats. He was sentenced to
five years in prison.

    Under the Indian Civil Rights Act (ICRA), tribes may not
deny criminal defendants facing imprisonment “the right,
upon request, to a trial by jury.” 25 U.S.C. § 1302(a)(10).
Alvarez sought federal habeas relief on the theory that the
Community had deprived him of that right by failing to
inform him that he would only receive a jury upon request.
See id. § 1303. The district court denied relief after finding
that Alvarez validly waived his right to a jury trial by failing
to request one.




    1
        By whom, the record does not say.
                     ALVAREZ V. TRACY                        7

                       DISCUSSION

I. Exhaustion

    We may not exercise jurisdiction over a habeas petition
presenting ICRA claims unless the petitioner has first
exhausted his tribal remedies. See Grand Canyon Skywalk
Dev., LLC v. ‘SA’ NYU WA Inc., 715 F.3d 1196, 1200 (9th
Cir. 2013). The exhaustion doctrine is rooted in our respect
for tribal sovereignty: We are loath to second guess a tribe’s
handling of a criminal case unless and until the tribe has had
a fair opportunity to review the matter in its own appellate
courts. In order to protect tribal sovereignty, we may raise
the issue of non-exhaustion sua sponte when the tribe fails to
press that defense due to an “inadvertent error.” Day v.
McDonough, 547 U.S. 198, 211 (2006). But we may not
override a tribe’s “deliberate waiver” of its non-exhaustion
defense. Wood v. Milyard, 132 S. Ct. 1826, 1834 (2012); see
Day, 547 U.S. at 202. We have no discretion to raise non-
exhaustion on our own initiative when a tribe “strategically
withh[olds]” this defense, “cho[oses] to relinquish it,” makes
a “deliberate decision to proceed straightaway to the merits,”
or “deliberately steer[s] the [court] away from” the issue.
Wood, 132 S. Ct. at 1833–35.

    In order to satisfy the exhaustion requirement, a criminal
defendant must pursue a direct appeal or show that such an
appeal would have been futile. See Jeffredo v. Macarro,
599 F.3d 913, 918 (9th Cir. 2010). Alvarez failed to pursue
a direct appeal or show the appeal would have been futile.
However, the Community’s response to Alvarez’s habeas
petition didn’t argue that this failure presented an exhaustion
problem. In our previous opinion, we raised the non-
exhaustion defense sua sponte after concluding that there was
8                       ALVAREZ V. TRACY

“no indication in the record that the Community deliberately
waived” it. Alvarez v. Tracy, 773 F.3d 1011, 1019 (9th Cir.
2014). After reviewing new information presented in
Alvarez’s petition for rehearing and the parties’ supplemental
briefs, we now conclude that there is evidence of deliberate
waiver.

     In its response to Alvarez’s habeas petition, the
Community argued that Alvarez did not exhaust because he
failed to pursue “a motion to correct his sentences” or “a
motion for commutation.”2 The Community now admits that
its response to Alvarez’s habeas petition “did not raise the
failure to take a direct appeal as an argument in support of the
nonexhaustion issue.”

    After the Community filed its response to the habeas
petition, Alvarez filed a motion for leave to conduct
discovery. He sought permission to subpoena records and
depose a witness regarding the appeals system in the
Community courts.3 Alvarez explained that this discovery
was necessary “to address the defense of non-exhaustion
raised in the Community’s Response.” See Johnson v. Gila
River Indian Cmty., 174 F.3d 1032, 1036 (9th Cir. 1999)
(noting that the lack of a functioning appellate court would


   2
     There is no doubt that Alvarez failed to exhaust these remedies.
However, we agree with the district court that any attempt to invoke them
would have been futile. A motion for commutation would have been
denied due to Alvarez’s disciplinary infractions while incarcerated. And
the Community failed to show that its criminal Code allowed for either
habeas relief or the correction of a sentence, two remedies it faulted
Alvarez for failing to pursue.
  3
    To the extent that we refer here to information gleaned from sealed
documents, we pro tanto lift the seal on that information.
                       ALVAREZ V. TRACY                             9

render a direct appeal futile, negating any non-exhaustion
defense). In its response to this motion, the Community
noted that Alvarez’s request for information “relating to the
processing of appeals” was “premised on a misunderstanding
of Respondent’s affirmative defense that Petitioner has failed
to exhaust his tribal court remedies.” The Community again
explained that Alvarez’s available remedies were “(1) a
motion for commutation of his sentence(s) or to correct his
sentences(s) [sic], or (2) filing a petition for writ of habeas
corpus in the Community Court.” Alvarez then withdrew his
request for discovery due to the Community’s “clear
indication that [it] is not arguing that Mr. Alvarez failed to
exhaust his claims by raising them in an appeal to the
Community court of appeals.” At no point did the
Community ever seek to correct Alvarez’s interpretation of
its response. We therefore conclude that the Community’s
response to the discovery request was a deliberate waiver of
any non-exhaustion defense stemming from Alvarez’s failure
to file a direct appeal.

    Our conclusion that the Community waived this defense
is buttressed by the fact that the Community “deliberately
steered” us away from the issue of the direct appeal. Wood,
132 S. Ct. at 1835. When asked to address exhaustion at
argument before us,4 the Community’s lawyer first insisted
that the district court clearly erred by finding that it would
have been futile for Alvarez to seek a commutation of his
sentence or tribal habeas. When asked to expand on his
argument, the lawyer again emphasized that “Alvarez never
attempted to use any of the mechanisms that were specified
in the record below.” According to the lawyer, these

  4
    Alvarez’s unopposed motions to take judicial notice and to file an
amended supplemental brief are GRANTED.
10                   ALVAREZ V. TRACY

remedies “included commutation” and “a habeas
proceeding.” When we asked about the possibility of a direct
appeal, the Community’s lawyer referred us yet again to “the
mechanisms that were identified in the motion to dismiss.”
Those mechanisms didn’t include a direct appeal. The
lawyer’s dogged insistence that we focus on commutation and
tribal habeas “deliberately steered” us away from any
discussion of the direct appeal. Id. That steering amounts to
intentional waiver, which in turn precludes us from raising
non-exhaustion sua sponte. See id.

II. Merits

    Under ICRA, “[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.” 25 U.S.C. §1302(a)(10) (emphasis added).
The parties debate at length whether the jury-trial right
accorded by ICRA parallels the jury-trial right accorded by
the Sixth Amendment. If the rights are “the same,” then we
would employ federal constitutional standards when
determining whether or not the Community violated
Alvarez’s rights under ICRA. Randall v. Yakima Nation
Tribal Court, 841 F.2d 897, 900 (9th Cir. 1988); see also
Howlett v. Salish & Kootenai Tribes of the Flathead
Reservation, Mont., 529 F.2d 233, 238 (9th Cir. 1976). But
“[w]here the tribal court procedures under scrutiny differ
significantly from those commonly employed . . . courts
weigh the individual right to fair treatment against the
magnitude of the tribal interest . . . to determine whether the
procedures pass muster under” ICRA. Randall, 841 F.2d at
                         ALVAREZ V. TRACY                               11

900 (internal citation and quotation marks omitted).5 This
balancing test reflects a “compromise intended to guarantee
that tribal governments respect civil rights while minimizing
federal interference with tribal culture and tradition.” Robert
J. McCarthy, Civil Rights in Tribal Courts: The Indian Bill of
Rights at Thirty Years, 34 Idaho L. Rev. 465, 467 (1998).

   We need not resolve whether the jury-trial rights accorded
by ICRA and the Sixth Amendment are equivalent.
Assuming that Randall’s less rigorous balancing test applies,
we conclude that Alvarez’s interests in understanding the full
contours of his rights outweigh any interests the Community
might have here. Indeed, the Community’s handling of
Alvarez’s case falls short of the “fair treatment” required by
ICRA. Randall, 841 F.2d at 900.

    Alvarez’s right to “fair treatment” includes the right to
know that he would forfeit his right to a jury unless he
affirmatively requested one. The Community concedes that
Alvarez “was not advised that he had to ask for” a jury. The
Community doesn’t argue that its Defendant’s Rights form
apprised Alvarez of the need for such a request. The right as
articulated on the form (“the right to a jury trial”) is very
different from the right Alvarez actually had under ICRA
(“the right, upon request, to a trial by jury”). The Community
doesn’t explain how a defendant would have known that he

  5
    The Randall test developed in the context of challenges premised on
Section 202(8) of ICRA, which provides that a tribe may not “deny to any
person within its jurisdiction the equal protection of its laws or deprive
any person of liberty or property without due process of law.” 25 U.S.C.
§ 1302(a)(8). We have never before had occasion to apply the Randall
test to Section 202(10) of ICRA, which accords the jury-trial right. See id.
§ 1302(a)(10). But the language and principle of Randall sweep beyond
Section 202(8).
12                   ALVAREZ V. TRACY

was obligated to make a request in order to preserve his right
to a jury trial. Moreover, the first line on the form notes that
criminal defendants have “the right to a speedy trial and a
public trial.” Tribal defendants are accorded those rights
without having to take affirmative steps to invoke them. To
make the same unqualified statement as to a right that must
be affirmatively invoked is misleading.

     So far as we can tell, the Community’s theory is that
Alvarez was expected to understand more about his rights
than was printed on the form. This was an unreasonable
expectation as to Alvarez, and, we expect, many others like
him who are charged in tribal courts. At the time of his
arraignment, Alvarez was barely out of his teens. He had a
seventh-grade education, and he was not represented by
counsel. He admitted to the judge that he didn’t “really know
about court that much.” The judge himself noted that Alvarez
was “having a hard time understanding the procedures.”
Despite Alvarez’s profound limitations, the Community made
no effort to ensure that Alvarez knew he would receive a jury
trial only if he requested one.

    We are generally reluctant to trench upon tribal
sovereignty. See Smith v. Confederated Tribes of the Warm
Springs Reservation of Or., 783 F.2d 1409, 1412 (9th Cir.
1986). But we think it clear that Alvarez’s interests here
outweigh those of the Community. It hardly undermines
tribal sovereignty to require that the Community inform
defendants of the nature of their rights, including what must
be done to invoke them. The fact that such a requirement
presents minimal intrusion into a tribe’s sovereignty may
explain why “all tribal courts presented with the question
have concluded that there must be a knowing and voluntary
waiver of ICRA’s conditional jury right.” Mark D. Rosen,
                          ALVAREZ V. TRACY                                13

Multiple Authoritative Interpreters of Quasi-Constitutional
Federal Law: Of Tribal Courts and the Indian Civil Rights
Act, 69 Fordham L. Rev. 479, 555 (2000).6 The Community
has never attempted to explain what legitimate interest it has
in using a boilerplate form that gives defendants a misleading
picture of their rights.7

  6
    See, e.g., McGrady v. Three Affiliated Tribes, 31 Indian L. Rep. 6058,
6059 (N. Plains Intertribal Ct. App. 2004) (“[W]e expressly hold that the
Tribe’s failure to inform the appellant [that he must request a jury trial at
the time of arraignment] constitutes a violation of his right to a trial by
jury as guaranteed under [ICRA].”); Confederated Salish & Kootenai
Tribes v. Peone, 16 Indian L. Rep. 6136, 6137 (C.S. & K. Tribal Ct. 1989)
(“This court must conclude that the failure of the accused to make a
request for a jury trial constitutes a valid waiver only when that failure to
request a jury trial is made knowingly and intentionally . . . .”); Squaxin
Island Tribe v. Johns, 15 Indian L. Rep. 6010, 6011 (Sq. I. Tribal Ct.
1987) (“[T]he court finds that the defendant subsequently waived his right
to trial by jury by knowingly and voluntarily failing to appear . . . .”); see
also Laramie v. Colville Confederated Tribes, 22 Indian L. Rep. 6072,
6074 (Colv. Ct. App. 1995) (“[T]he fundamental right of a criminal
defendant to a trial by jury cannot be diluted because of administrative
difficulties.”).
  7
    Citing four state-law cases, the Community suggests that a waiver of
the statutory right to trial by jury need not be knowing. We question
whether these cases are relevant to our analysis, as they do not interpret
ICRA. But even if relevant, they are readily distinguishable. In three of
the cases, the court specifically instructed the defendant that he had a right
to a jury trial upon request. See State v. Vernon, 356 N.W.2d 887, 889
(Neb. 1984); Jackson v. State, 644 N.E.2d 595, 596 (Ind. Ct. App. 1994);
State v. Farmer, 548 S.W.2d 202, 205 (Mo. Ct. App. 1977). In the fourth
case, the appellate court remarked that defendant’s “attorney clearly had
knowledge of the time frame within which to make a jury trial demand.”
State v. Gordon, 766 A.2d 75, 77 (Me. 2001). Moreover, the criminal
defendant was represented by counsel in at least three of the four cases.
Gordon, 766 A.2d at 76; Vernon, 356 N.W.2d at 889; Farmer,
548 S.W.2d at 205. The opinion in Jackson doesn’t mention whether the
defendant had an attorney at trial. 644 N.E.2d 595.
14                  ALVAREZ V. TRACY

    We hold that the Community denied Alvarez his right
under ICRA to be tried by a jury. Because denial of the right
to a jury trial is a structural error, it requires automatic
reversal. See Sullivan v. Louisiana, 508 U.S. 275, 281–82
(1993). We therefore need not reach Alvarez’s alternative
argument that the Community violated his confrontation
right.

               *             *              *

    The judgment below is REVERSED. This case is
REMANDED to the district court with instructions to grant
the petition for a writ of habeas corpus.



KOZINSKI, Circuit Judge, concurring:

    This appeal gives us no occasion to consider a rat’s nest
of problems with the Community’s justice system that may
well provide future criminal defendants with avenues for
habeas relief. In 1999, we published an opinion expressing
“doubt that a functioning appellate court exists” in the Gila
River Indian Community. Johnson v. Gila River Indian
Cmty., 174 F.3d 1032, 1036 (9th Cir. 1999). Too few reforms
have been implemented in the intervening years. When the
Community destroys its inventory of Defendant’s Rights
forms, it may also wish to reflect on whether it is proud to
have: permitted Alvarez only five days to notice an appeal
after being sentenced, the shortest such window I have ever
heard of; incarcerated Alvarez for nine years without ever
providing him assistance of counsel; declined to provide
Alvarez with a notice-of-appeal form or any other post-trial
guidance about how to take an appeal, see Alvarez v. Tracy,
                     ALVAREZ V. TRACY                        15

773 F.3d 1011, 1024 (9th Cir. 2014) (Kozinski, J.,
dissenting); incarcerated Alvarez after his conviction in a
facility with no law library, preventing him from conducting
his own research on the Community’s appeals procedure;
failed to ensure that Alvarez was apprised of his rights on the
record and by a judge, id. at 1034; permitted prosecutors to
convict Alvarez on the basis of hearsay testimony, in plain
contravention of his confrontation right; or faulted Alvarez
for failing to seek habeas relief in Community court despite
the fact that the Community’s own court of appeals has issued
an opinion indicating that habeas relief isn’t available under
the tribe’s Code.

    Regrettably, our decision today comes too late to give
Alvarez any meaningful relief. He was released years ago
after having spent most of his twenties in the Community’s
custody. But this case need not be a total loss. Perhaps the
Community and others like it will take this opportunity to
reconsider the dubious procedures they employ in their
criminal courts.



O’SCANNLAIN, Circuit Judge, concurring in part and
dissenting in part:

    I concur in the court’s determination that the Gila River
Indian Community deliberately waived its non-exhaustion
defense. I respectfully dissent, however, from the court’s
conclusion that the Community denied Fortino Alvarez his
“right, upon request, to a trial by jury” when Alvarez never
requested a jury. Rather than analyze the scope of Alvarez’s
jury-trial right under the Indian Civil Rights Act, the majority
16                        ALVAREZ V. TRACY

simply applies an unmoored balancing test without giving a
single reason to do so.

                                     I

     As the majority recounts, in 2003 Fortino Alvarez struck
his girlfriend with a flashlight, threatened her with a knife, hit
her brother with the flashlight, and threatened to kill the
whole family. The Community charged him with various
crimes. Prior to a group arraignment, Alvarez received a
copy of the Community’s criminal complaint with a
“Defendant’s Rights” form attached. The Defendant’s Rights
form included the statement: “You have the right to a jury
trial.” The Community did not specifically notify Alvarez
that he needed to request a jury trial. The rights were also
read at the beginning of the group arraignment. At the
arraignment, the court asked Alvarez whether he had any
questions about those rights. He responded that he did not.

     Later that year, Alvarez was convicted of most charges in
a tribal-court bench trial in which he represented himself. At
no point before or during the trial did Alvarez request a jury
or even inquire about one. In due course, Alvarez filed a
federal habeas corpus petition under 25 U.S.C. § 1303
challenging various convictions and sentences on the basis of
nine claims. The district court, adopting the recommendation
of a magistrate judge, dismissed all claims. On appeal,
Alvarez challenges only the dismissal of two claims: (1) his
claim that he was denied his right to be confronted with the
witnesses against him,1 and (2) his claim that he was denied
his right, upon request, to a jury trial.


 1
     Like the majority, I do not address Alvarez’s confrontation rights.
                      ALVAREZ V. TRACY                         17

                                II

                               A

    “As separate sovereigns pre-existing the Constitution,
tribes have historically been regarded as unconstrained by
those constitutional provisions framed specifically as
limitations on federal or state authority.” United States v.
Bryant, 136 S. Ct. 1954, 1962 (2016) (quoting Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 56 (1978)). “The Bill of
Rights . . . , therefore, does not apply in tribal-court
proceedings.” Id. However, “persons subject to tribal
authority can invoke other sources of individual rights. The
two most prominent sources of these rights are tribal bills of
rights . . . and federal statutes such as” the Indian Civil Rights
Act of 1968 (ICRA), Pub. L. No. 90–824, § 202, 82 Stat. 73,
77–78 (codified as amended at 25 U.S.C. § 1302(a)).
F. Cohen, Cohen’s Handbook of Federal Indian Law
§ 14.03[1], at 944 (2012 ed.) [hereinafter Cohen’s].

    ICRA, “rather than providing in wholesale fashion for the
extension of constitutional requirements to tribal
governments, as had been initially proposed, selectively
incorporated and in some instances modified the safeguards
of the Bill of Rights to fit the unique political, cultural, and
economic needs of tribal governments.” Martinez, 436 U.S.
at 62. Thus, in ICRA, “Congress accorded a range of
procedural safeguards to tribal-court defendants ‘similar, but
not identical, to those contained in the Bill of Rights and the
Fourteenth Amendment.’” Bryant, 136 S. Ct. at 1962
(quoting Martinez, 436 U.S. at 57).
18                   ALVAREZ V. TRACY

                               B

    “In addition to other enumerated protections, ICRA
guarantees ‘due process of law.’” Id. (quoting ICRA
§ 202(8)). The majority concludes that the Community’s
apparent failure to notify Alvarez of the requirement to
request a jury (the “demand requirement”) was unfair, which
sounds perhaps like a due process violation. However,
Alvarez has not argued, on appeal or in the district court, that
the failure to notify him of the demand requirement violated
his right to due process. He argued below that numerous
other aspects of his convictions violated his right to due
process, but not the tribe’s failure to provide notice of the
requirement to request a jury.

    Fear not. The majority has devised a clever way to
vindicate Alvarez’s due process rights: ignore the text of
ICRA and instead import a due-process balancing test. Maj.
Op. at 10–11 & n.5 (concluding that we should apply the test
from Randall v. Yakima Nation Tribal Court, 841 F.2d 897,
900 (9th Cir. 1988)).          To its credit, the majority
acknowledges that the Randall test was “developed in the
context of challenges premised on” ICRA’s due process right,
§ 202(8), and further recognizes that we have never applied
the Randall test to a jury-trial claim under § 202(10). Maj.
Op. at 11 n.5.

    What the majority does next, however, is both
unexplained and troubling. The majority does not state why
we should apply an atextual balancing test to a claim under
§ 202(10). Instead, it jumps straight to the conclusory
determination that “the language and principle of Randall
sweep beyond Section 202(8).” Maj. Op. at 11 n.5. With
respect, this is not how we should decide cases. We
                        ALVAREZ V. TRACY                             19

determine the relevant standard to apply in a given case based
on reasons to do so, not the absence of reasons to refrain
from adopting some standard at random (or at will).

    Importantly, Alvarez did not argue that we should apply
the Randall test.2 As a result, he waived any such argument,
and the majority should not expect the Community to explain
why the Randall test should not apply.

    Moreover, we should not apply a test designed to evaluate
generalized due process claims under § 202(8) when another
ICRA provision, § 202(10), specifically addresses the right to
a jury trial. In general, where a specific provision constitutes
an explicit textual source of protection against a particular
sort of government behavior, that provision, and not more
generalized notions of due process, “must be the guide for
analyzing” claims that the government engaged in prohibited
behavior. See County of Sacramento v. Lewis, 523 U.S. 833,
842 (1998); United States v. Lanier, 520 U.S. 259, 272 n.7
(1997); Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 805 (9th
Cir. 2014) (en banc) (O’Scannlain, J., dissenting). We should
apply this principle to analysis under ICRA because the
procedural safeguards of ICRA largely mirror those of the
federal constitution, both in content and the relative levels of
generality of their protections.

   Indeed, we have already applied this principle in
construing ICRA. In Tom v. Sutton, we declined to apply the
due process right in § 202(8) to find a right to appointment of
counsel for indigent defendants because § 202(6) specifically


  2
    Instead, he argued that the ICRA jury-trial right parallels the Sixth
Amendment jury-trial right, so we should employ “federal constitutional
standards” to evaluate his jury-trial claim.
20                       ALVAREZ V. TRACY

addressed the right to counsel. 533 F.2d 1101, 1105 (9th Cir.
1976).

    Thus, there are at least two good reasons not to import
Randall’s due-process test to evaluate jury-trial claims. Yet
the majority adopts such test for its analysis without any
countervailing reason to do so.3

                                    III

     Instead of shrugging our shoulders and adopting a due-
process test for no reason, we should construe ICRA’s jury-
trial provision and determine whether the Community
violated Alvarez’s right under such provision.

                                    A

    Alvarez argues that ICRA’s jury-trial right parallels the
jury-trial right guaranteed by the Sixth Amendment. It
clearly does not.

                                     1

    Congress modified the safeguards regarding
imprisonment and the criminal jury trial in the ICRA. The
Sixth Amendment provides:


 3
    Further, I am not persuaded that it was unfair to require Alvarez to do
something to invoke his rights. Alvarez was told he had a right to a jury
trial. Alvarez failed to object, ask a question, or do anything when it was
clear that the trial was proceeding without a jury. And after the trial was
over, he failed to appeal. At a certain point, a defendant cannot sit on his
rights and then claim unfairness when the trial does not turn out the way
he wanted.
                    ALVAREZ V. TRACY                      21

       In all criminal prosecutions, the accused shall
       enjoy the right to a speedy and public trial, by
       an impartial jury of the State and district
       wherein the crime shall have been committed,
       which district shall have been previously
       ascertained by law, and to be informed of the
       nature and cause of the accusation; to be
       confronted with the witnesses against him; to
       have compulsory process for obtaining
       witnesses in his favor, and to have the
       Assistance of Counsel for his defence.

    As originally enacted, the ICRA provided: “No Indian
tribe in exercising powers of self-government shall . . .

       (6) deny to any person in a criminal
       proceeding the right to a speedy and public
       trial, to be informed of the nature and cause of
       the accusation, to be confronted with the
       witnesses against him, to have compulsory
       process for obtaining witnesses in his favor,
       and at his own expense to have the assistance
       of counsel for his defense; . . .

       (10) 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.”

ICRA, Pub. L. No. 90–824, § 202, 82 Stat. 73, 77–78 (1968)
(codified as amended at 25 U.S.C. §§ 1302(a)(6)–(8), (10)
(2012)).
22                   ALVAREZ V. TRACY

    ICRA § 202(6) contained most of the same text as the
Sixth Amendment, but it differed in key aspects. For
instance, it did not provide for free counsel for indigent
defendants, ICRA § 202(6) (counsel “at his own expense”),
while the Sixth Amendment did so provide, see Gideon v.
Wainwright, 372 U.S. 335 (1963). Also, § 202(6) did not
provide a right to a jury trial.

    ICRA § 202(10) provided a jury-trial right, but its text did
not parallel the Sixth Amendment text at all. Indeed, the only
commonality between the text of ICRA § 202(10) and the
Sixth Amendment was that both contain the words “right to
a,” “trial,” “by,” and “jury.” Subsection 202(10) expressly
required a request to receive a jury, it did not require an
impartial jury, and it did not require a jury “of the State and
district wherein the crime shall have been committed.”
Compare ICRA § 202(10) with U.S. Const. amend. VI.

                               2

    Critically, unlike the Sixth Amendment, ICRA provides
a right to have a jury trial only upon request.

    In 1986, Congress permitted tribes to impose a sentence
of up to one year in jail. Indian Alcohol and Substance
Abuse Prevention and Treatment Act of 1986, Pub. L. No.
99–570, § 4217, 100 Stat. 3207–146 (codified as amended at
25 U.S.C. § 1302(a)(7)(B)). At that time, the Sixth
Amendment required a jury trial as the default for any crime
punishable by more than six months in jail. See Baldwin v.
New York, 399 U.S. 66, 69 (1970) (plurality). In federal
court, a defendant would receive a jury trial for a non-petty
offense unless (1) he waived a jury in writing, (2) the
government consented, (3) the trial court sanctioned the
                          ALVAREZ V. TRACY                                23

waiver, and (4) the waiver was made expressly and
intelligently. See Singer v. United States, 380 U.S. 24, 34
(1965). The States had “adopted a variety of procedures
relating to the waiver of jury trials in state criminal cases.”
Id. at 36–37. Without a waiver, a jury trial was the default for
“serious crimes.” Duncan v. Louisiana, 391 U.S. 145, 154
(1968) (“The laws of every State guarantee a right to jury trial
in serious criminal cases . . . .”).4

     Thus, contrary to Alvarez’s argument, ICRA’s jury-trial
right differs substantially from the Sixth Amendment’s jury-
trial right. However, this conclusion merely raises the
question: if the rights are different, then what right did
Congress provide in ICRA?




 4
   The Sixth Amendment does not require a jury trial for “petty offenses,”
for which the penalty does not exceed six months’ imprisonment or a $500
fine, or both. See 18 U.S.C. § 1(3) (1964) (“Any misdemeanor, the
penalty for which does not exceed imprisonment for a period of six
months or a fine of not more than $500, or both, is a petty offense.”);
Cheff v. Schnackenberg, 384 U.S. 379 (1966) (A “petty offense . . . does
not require a jury trial.”). Indeed, at the time of ICRA’s enactment in
April 1968, three states did not require jury trials for longer periods of
imprisonment: Louisiana only granted a jury trial in cases in which capital
punishment or hard labor could be imposed; New Jersey’s disorderly
conduct offense carried a one-year maximum sentence but no jury trial;
and New York State did not provide juries in New York City for crimes
with a one-year maximum sentence. Duncan, 391 U.S. at 146, 161 &
n.33. Shortly after ICRA’s enactment, the Supreme Court confirmed that
states need not provide a jury trial for “[c]rimes carrying possible penalties
up to six months . . . if they otherwise qualify as petty offenses.” Id. at
159. Thus, ICRA § 202(10) provided a greater right than those available
in federal court or in state court for offenses for which the penalty did not
exceed six months.
24                     ALVAREZ V. TRACY

                                  B

                                  1

    The plain meaning of § 202(10) at the time of its
enactment suggests that it did not obligate tribes to provide
notice of the demand requirement. Subsection (10) provides:
“No Indian tribe . . . shall . . . deny to any person . . . the right,
upon request, to a trial by jury.” Thus, at least one
prohibition is clear in the statutory text: a tribe cannot refuse
to grant a defendant’s request for a jury trial. The tribe did
notify Alvarez of his right to a jury trial, and there is no
dispute that Alvarez did not request a jury.

     Instead, the parties’ dispute centers on whether § 202(10)
obligated the tribe also to notify Alvarez of the requirement
to request a jury. Do tribes deny the “right, upon request, to
a trial by jury” by failing to notify defendants of the need to
request a jury? Obviously, the plain text of § 202(10) does
not explicitly state that a tribe must provide a defendant with
notice of such requirement. The lack of any textual
requirement that tribes notify defendants of the need to
request a jury strongly suggests that Congress did not impose
such a requirement.

                                  2

    Context reinforces that the right to receive a jury trial
does not include a right to be notified of the need to request
a jury trial.

    In 1968, there existed both tribal courts established by
tribes and Courts of Indian Offenses, which “were created by
the Federal Bureau of Indian Affairs to administer criminal
                     ALVAREZ V. TRACY                        25

justice for those tribes lacking their own criminal courts.”
Santa Clara Pueblo, 436 U.S. at 64 n.12; see also Cohen’s
§ 4.04[3][c], at 263–64. Congress applied § 202, including
the jury-trial right, to both types of courts. ICRA §§ 201–02.
In a neighboring provision, § 301 of that statute, Congress
directed the Secretary of the Interior also to establish a model
code to govern the Courts of Indian Offenses:

       Such code shall include provisions which will
       (1) assure that any individual being tried for
       an offense by a court of Indian offenses shall
       have the same rights, privileges, and
       immunities under the United States
       Constitution as would be guaranteed any
       citizen of the United States being tried in a
       Federal court for any similar offense,
       (2) assure that any individual being tried for
       an offense by a court of Indian offenses will
       be advised and made aware of his rights
       under the United States Constitution, and
       under any tribal constitution applicable to
       such individual . . . .

Pub. L. No. 90–284, § 301, 82 Stat. 73, 78 (codified at
25 U.S.C. § 1311) (emphasis added). Thus, in federally
established Courts of Indian Offenses, a model code would
assure that defendants there both have rights—the full slate
of rights provided by our Constitution—and that they have
notice of these rights. The fact that Congress provided for
both in separately enumerated provisions of § 301 strongly
suggests that Congress viewed rights as distinct from notice
of such rights. While a model code for Courts of Indian
Offenses would provide both, Congress did not impose a
model code on tribal courts established by tribes, such as the
26                   ALVAREZ V. TRACY

court in which Alvarez was convicted. Instead, for such
courts Congress only imposed the rights contained in § 202,
without any notice requirement.

    Consequently, I would conclude that Congress did not
impose on tribes any obligation to notify defendants of the
need to request a jury. Section 202(10) only required tribes
to refrain from denying the right to a jury trial, but did not
obligate tribes to notify defendants of the need to request a
jury.

                               3

    Substantive canons reinforce my conclusion that we
should not construe § 202(10) to impose on tribes a duty to
notify defendants that they must request a jury.

    “Federal courts must avoid undue or intrusive interference
in reviewing Tribal Court procedures.”                Smith v.
Confederated Tribes of Warm Springs, 783 F.2d 1409, 1412
(9th Cir. 1986). In the specific context of ICRA, the Supreme
Court has emphasized that “considerations of ‘Indian
sovereignty are a backdrop against which the applicable
federal statute must be read.’” Santa Clara Pueblo, 436 U.S.
at 60 (quoting McClanahan v. Ariz. State Tax Comm’n,
411 U.S. 164, 172 (1973) (alterations omitted)). Most
importantly, the Court has admonished, “Although Congress
clearly has power to authorize civil actions against tribal
officers, and has done so with respect to habeas corpus relief
in [28 U.S.C. § 1303], a proper respect both for tribal
sovereignty itself and for the plenary authority of Congress in
this area cautions that we tread lightly in the absence of clear
indications of legislative intent.” Id. Absent any clear
indications that § 202(10) requires the tribe to notify Alvarez
                         ALVAREZ V. TRACY                                27

of the demand requirement, we should “tread lightly” and
conclude that Alvarez has failed to show that the tribe
violated his rights under § 202(10).5



   5
     We should not give much, if any weight, to the tribal decisions
discussed by the parties. First, we should not base our opinion on
decisions issued by unrelated tribes. Alvarez makes no argument that the
Gila River Indian Community’s tribal courts would handle this issue in the
same manner as other courts that have addressed the issue. The
Community could interpret § 202(10) differently depending on the tribe’s
own needs, customs, and resources. One commentator has noted:

         Indian tribes are not all alike. Tribes range in size from
         tremendous to tiny. Some gaming tribes have per
         capita incomes that rival the richest towns in the United
         States while other tribes are some of the poorest
         communities in the country. Some tribes have adopted
         tribal court systems that largely mimic those present in
         the states surrounding them, while others have courts
         with little or no resemblance to Anglo-American justice
         systems.

Max Minzner, Treating Tribes Differently: Civil Jurisdiction Inside and
Outside Indian Country, 6 Nev. L. J. 89, 89 (Fall 2005) (footnotes
omitted). Thus, the panel should avoid imposing the decisions of unrelated
tribes on the Community. To the extent that we give any weight to the
tribal opinions, I note that in Confederated Salish & Kootenai Tribes v.
Peone, 16 Indian L. Rep. 6136 (C.S. & K. Tr. Ct. 1989), the court stated:
“In the event of a pro se defense, it is the accused’s responsibility to be
aware of his own rights . . . and failure to act in a timely manner on his
own behalf is a burden the accused must bear alone. Even when the
accused intends to obtain legal counsel the need for timely advice
generally is the responsibility of the defendant.” Id. at 6137.

    Like the majority, Maj. Op. at 13 n.7, I question whether state-court
decisions are relevant to our analysis. To the extent that we consider
them, I note that several state-court decisions support the tribe’s position.
See State v. McClinton, 418 S.W.2d 55, 60–61 (Mo. 1967) (discussing
28                      ALVAREZ V. TRACY

                                   C

     Based on the plain meaning of the statutory text, the
statute’s context, and important considerations of tribal
sovereignty, I would conclude that ICRA § 202(10) prohibits
a tribe from refusing a defendant’s request for a jury trial, but
does not impose an affirmative obligation on tribes to notify
defendants that they must request a jury. Because Alvarez
did not request a jury, the Community did not violate his
rights under § 202(10).

     I respectfully dissent.




State v. Larger, 45 Mo. 510, 511 (1870)); State v. Mangelsen, 297 N.W.2d
765, 767–68 (Neb. 1980).
