Tribal Jurisdiction Sees Mixed Bag in 9th Circuit

(CN) - In two cases about Arizona's Gila River Indian Community, the 9th Circuit affirmed tribal jurisdiction in one and found that federal tort law may cover another.

The rejected challenge involves Fortino Alvarez's convictions in 2003 for assault and domestic violence at a bench trial before a Gila River Indian Community court.

After he was sentenced to one year on each count, Alvarez was allegedly informed of, but never exercised, his right to appeal to a tribal appeals court.

He later petitioned for federal habeas relief on the basis of the community's alleged failure to tell him that he had to request a jury trial.

Because of Alvarez's failure to exhaust tribal remedies, however, the court deemed his federal suit doomed, and the 9th Circuit affirmed 2-1 Monday.

"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," Judge Randy Smith wrote for the majority.

Smith concluded by noting that "the strong comity and judicial efficiency interests at stake warrant federal abstention. We, therefore, decline to assume jurisdiction over Alvarez's claims."

Judge Alex Kozinski - having just relinquished control of the court to the 9th Circuit's new chief, Judge Sidney Thomas - wrote in dissent that, "even if a direct appeal within the community court system were a meaningful remedy, we should still decline to enforce the exhaustion requirement."

Kozinksi said "any marginal benefit it provides in terms of 'preserv[ing] and strengthen[ing] tribal institutions,' is far outweighed by the need to adjudicate the serious deprivations of rights that Alvarez alleges."

A different panel of the 9th Circuit meanwhile remanded a tort suit Monday, seeking to hold the U.S. liable for the off-reservation actions of two tribal police officers.

Loren Shirk says he was severely injured in an accident caused by an allegedly drunken driver that tribal officers attempted to stop on their way back from anti-terrorism training in Tucson.

The driver collided with Shirk's motorcycle, according to the complaint.

Though a federal judge dismissed the action for lack of jurisdiction, the divided 9th Circuit found that the U.S. may be liable if the two officers were acting within the scope of their employment as employees of the Bureau of Indian Affairs, and if the alleged tortious action falls within the scope of their employment under state law.

While the U.S. conceded before the lower court that the officers were acting in their role as tribal police officers, "the government has not conceded, that the officers were acting within the scope of their employment where the relevant 'employment' is 'carrying out the contract or agreement,'" according to the ruling.

On remand, the District Court must re-evaluate whether it has subject-matter jurisdiction based on this two-prong analysis.

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