Indian Civil Rights Act Violations Alleged

Carol Berry
11/17/12

A Tohono O’odham Nation member’s claim of unlawful detention, dismissed by a District Court, also got a thumbs-down from the U.S. Tenth Circuit Court of Appeals November 14, eight days after the tribal member was sentenced in Arizona to 30 years in prison on an unrelated charge of second-degree murder in the death of a 7-year-old. The case of Alvin Valenzuela, 23, took a complex and violent route to the Tenth Circuit, beginning in 2007 when he was sentenced to 3.5-years in state prison for aggravated assault in connection with the killing of two men on Nation lands. Only a month after his release on that charge, he shot a 7-year-old boy, later pleading guilty to second-degree murder, according to the Arizona Daily Star. An early release on the aggravated assault charge had been secured by his attorney, who argued that his sentence exceeded the one-year limit imposed at that time on tribal courts under the Indian Civil Rights Act (ICRA), one of the issues brought to the Tenth Circuit from the U.S. District Court for the District of New Mexico. Valenzuela had sought release from alleged unlawful detention, but he was released from prison before his petition was heard and his claim was declared moot, according to Tenth Circuit Court records in Alvin Valenzuela v. Steve Silversmith, et al. Valenzuela had challenged his conviction and sentencing because, he alleged, the Nation imposed a sentence above ICRA’s statutory maximum, violated his right to counsel under ICRA (though it was not a right in ICRA at that time), deprived him of due process when it convicted him, and violated the Constitution and ICRA by incarcerating him in an off-reservation jail, court records showed. The defendants contended Valenzuela hadn’t exhausted tribal court remedies, and a federal magistrate recommended approval of their request for dismissal. Shortly after that, Valenzuela was released from prison and the District Court judge dismissed his petition with prejudice, which would have precluded further appeal. The Tenth Circuit upheld the lower court but did not foreclose future litigation. A three-judge panel of the federal appeals court declined to take on the issue of whether federal courts have authority to vacate tribal court convictions, as Valenzuela had sought. Instead, they disposed of his appeal on a “threshold, nonmerits issue” — that Valenzuela had failed to exhaust tribal court remedies. “Because Mr. Valenzuela did not exhaust tribal remedies that were available to him, we affirm the District Court’s dismissal of his petition,” the court ruled.

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