November 28, 2022

Volume XII, Number 332

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The Ninth Circuit Rules On Jury Trial Right Under Indian Civil Rights Act

In Alvarez v. Lopez, 2016 WL 4527558 (9th Cir. 2016), Alvarez, an enrolled member of the Gila River Indian Community (GRIC), was charged in tribal court with assault, domestic violence and misconduct involving a weapon after he allegedly assaulted his girlfriend with a flashlight.

Prior to arraignment, Alvarez received a copy of the Community’s criminal complaint with an attached “Defendant’s Rights” form, which advised that “[y]ou have the right to appeal, if you are found ‘Guilty’, within a period of five (5) business days after sentencing." The GRIC court convicted Alvarez, who was unrepresented, after a bench trial in late 2003 and sentenced him to one year of imprisonment for each of the five charges.

In 2008, Alvarez filed a pro se habeas corpus petition under 25 U.S.C. § 1303, challenging his convictions and sentences and alleging violations of the Indian Civil Rights Act (ICRA). The GRIC moved to dismiss, arguing that Alvarez failed to exhaust his tribal remedies. The district court denied the motion and the Ninth Circuit initially affirmed in 2014, 773 F.3d 1011 but, in the instant decision withdrew the 2014 decision, holding that the Tribe had violated the ICRA’s mandate 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.”

According to the court: “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. … 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. … 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.”

Copyright © 2022 Godfrey & Kahn S.C.National Law Review, Volume VI, Number 256
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About this Author

Brian Pierson Tribal Lawyer Godfrey Kahn Law Firm
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Brian Pierson leads Godfrey & Kahn's Indian Nations Law Team. Brian clerked for federal district judge Myron L. Gordon before entering private practice. Brian has more than 20 years experience representing Indian tribes, beginning with his successful representation of Chippewa Indians in federal court litigation to prevent racially-motivated interference with treaty-reserved, off-reservation fishing rights.

As leader of the firm's Indian Nations team, Brian's primary objective is to draw on the knowledge and experience of G&K's attorneys to assist tribes in formulating and...

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