Lead Opinion
ORDER
Thеse matters are before the court on the respondent’s Petition for Panel Rehearing or Rehearing En Banc. We also have responses from the petitioner and the United Keetoowah Band of Cherokee Indians, in addition to amici curiae briefs from the United States and The Muscogee (Creek) Nation. We also have several motions pending seeking to file additional am-ici curiae briefs.
Upon consideration, the request for panel rehearing is denied by the original panel members. For clarification, however, the panel has decided, sua sponte, to amend the original decision at pages 49-50. A copy of the amended decision is attached to this order, and the clerk is directed to reissue the opinion nunc pro tunc to the original filing date of August 8, 2017. In addition, Chief Judge Tymkovich has filed a concurrence to the denial of rehearing, and that concurrence is likewise attached.
The Petition, the responses, the amici filings and the amended opinion were also circulated to all the judges of the court in regular active service who are not recused. See Fed. R. App. P. 35(a). As no judge on the original panel or the en banc court requested that a poll be called the request for en banc review is denied.
Finally, the motions filed by the Oklahoma Independent Petroleum Association, the Oklahoma Municipal League, and the Oklahoma Oil and Gas Association, et al., seeking leave to file amici curiae briefs are granted. Those briefs will be shown filed as of the date of
TABLE OF CONTENTS
I. BACKGROUND... 904
A. Factual History.. .904
B. Procedural History.. .905
1. Trial... 905
2. Direct appeal... 905
3. First Application for State Post-Conviction Relief.. .906
4. Filing of First Application for Federal Habeas Relief.. .906
5. Second Application for State Post-Conviction Relief... 907
a. Evidentiary hearing.. .907
b. Appeal to the OCCA...908
c.. Atkins trial and appeal.. .909
6. Federal District Court Proceedings on First Federal Habeas Application,. .910
8. Second Application for Federal Habe-as Relief,. .910
9. This Consolidated Appeal... 911
II: LEGAL BACKGROUND... 911
A. Standard of Review... 911
1. The Parties’ Dispute... 914
2. The AEDPA Standard... 912
a. Overview.. .912
b. The “contrary to” clause... 913
B. Indian Country Jurisdiction... 913
1. Reservations.. .914
2. The Major Crimes Act.. .915
3. Indian Country... 916
4. Reservation Disestablishment and Diminishment.. .917
a. Presumption against disestablishment and diminishment.. .918
b. The policy of allotment... 918
c. Solem factors... 920
III. DISCUSSION... 921
A. Clearly Established Federal Law.. .921
1. Solem—Clearly Established Law in 2005...921
2. The State’s Arguments... 923
B. The OCCA Decision—Contrary to Clearly Established Federal Law.. .923
1. The OCCA’s Merits Decision., .923
2. The OCCA’s Decision Was Contrary to Solem.. .926-
a. No citation to Solem...926
b. Failure to apply Solem.. .926
c. . The State’s arguments... 927 .
C. Exclusive Federal Jurisdiction... 928
1. Additional Legal Background... 930
a. Supreme, Court authority... 930
b. Tenth Circuit authority.. .931
2. Additional Factual , Background— Creek Nation History... 932
a. Original homeland and forced relocation.., 932
b. Nineteenth century diminishment...933
c. 1867 Constitution and government,,. 933
d. Early congressional regulation of modern-day Oklahoma.. .933
e. The push for allotment... 934
f. Allotment and aftermath... 934
g. Creation of Oklahoma... 935
h. Away from allotment...936
i. Public Law 280... 936
j. A new Creek Constitution.., 937
k. Our decision in Indian Country, U.S.A... .937
3. Applying Solem.. .937
a. Step One: Statutory Text.. .938
i. The statutes., .939
1) Act of March 3, 1893, ch. 209, 27 Stat, 612 (“1893 Act”)... 939
2) Act of June 10, 1896, ch. 398, 29 Stat. 321 (“1896 Act”)... 940
3) Act of June 7, 1897, ch. 3, 30 .Stat. 62 (“1897Act”)...940
4) “Curtis Act,” ch. 517, 30 Stat. 495 (June 28, 1898)... 941
5) “Original Allotment Agreement,” ch. 676, 31 Stat. 861 (March 1, 1901)...941
a) Allotment... 941
b) Town sites... 943
c) Lands reserved for tribal . purposes ...943
d) Future governance.. .943 •
6) “Supplemental Allotment Agreement,” ch. 1323, 32 Stat. 500 (June 30,' 1902)... 944
7)
8) “Oklahoma Enabling Act,” ch. 3335, 34 Stat. 267 (June 16,1906).. .947
ii. Analysis... 948
1) No hallmarks of disestablishment' or diminishment., .948
2) Signs Congress continued to recognize the Reservation... 951
3) The State’s title and governance arguments ...951
a) Title...952
b) Governance.. .953
b. Step Two: Contemporary Historical Evidence... 954
i. The State’s evidence.. .954 ^
1) 1892 Senate debat.. .955
2) 1894 Senate committee report,...956
3) Other sources... 956
ii. Mr. Murphy’s and the Creek Nation’s evidence.. .957
1)1894 Dawes Commission records, . .957
2) 1895 Dawes letter.-. .957 •
3) 1900 Attorney General opinion... 957
4) Post-allotment evidence... 958
iii. Analysis .t.. 959
c. Step Three: Later History.. .-960
i. Treatment of the area... 960
1) Congress... 960
2) Executive.. .-961
3) Federal courts... 962
4) Oklahoma.. .963
5), Creek Nation.,. 964
ii. Demographics.-. .965
iii. Step-three concluding comment.. .966
IV! CONCLUSION... 966
Patrick Dwayne Murphy asserts he was tried in the wrong court. He challenges the jurisdiction of the Oklahoma state court in which he was convicted of murder and sentenced to death. He contends he should have been tried in federal court because he is an Indian and the offense occurred in Indian country. We agree and remand to the district court to issue a writ of habeas corpus vacating his conviction and sentence.
The question of whether the state court had jurisdiction is straightforward but reaching an answer is not. We must navigate the law of (1) federal habeas corpus review of state court decisions, (2) Indian country jurisdiction generally, (3) Indian reservations specifically, and (4) how a res-érvation can be disestablished or diminished. Our discussion on each of these topics reaches the following conclusions.
• First, we assume that- a federal habeas court must give deference to a' state court’s determination that it had jurisdiction.-Nonetheless, in this case, the Oklahoma court applied a rule that was contrary to clearly established Supreme Court law. We must apply the correct law.
Second, when an Indian is charged with committing a murder in Indian country, he or she must be tried in federal court. Mr. Murphy is a member of the Muscogee (Creek) Nation. Because the homicide charged against him was committed in Indian country, the Oklahoma state courts lacked jurisdiction to try him.
Third, Congress has defined Indian country broadly to include three categories of areas: (a) Indian reservations, (b) dependent Indian communities, and (c) Indian allotments. See 18 U.S.C. § 1151. The reservation clause concerns us here. All land within the borders of an Indian reservation—regardless of whether the tribe, individual Indians, or non-Indians hold title to a given tract of land—is Indian country unless Congress has disestablished the reservation or diminished its borders.
Mr. Murphy and the State agree that the offense in this case occurred within the Creek Reservation if Congress has not disestablished it. We conclude the Reservation remains intact and therefore the crime was committed in Indian country. Mr. Murphy, a Creek citizen, should have been charged and tried in federal court.
I. BACKGROUND
We begin with the facts of the crime as presented by the Oklahoma Court of Criminal Appeals (“OCCA”).
A. Factual History
In August 1999, Mr. Murphy lived with Patsy Jacobs. Murphy v. State,
On August 28, 1999, Mr. Jacobs spent the day drinking with his cousin, Mark Sumka. Id. Around 9:30 p.m., Mr. Sumka was driving to a bar in Henryetta, Oklahoma, with Mr. Jacobs passed out in the back seat. Id. Mr. Murphy was driving on the same road in the opposite direction with two passengers—Billy Long and Kevin King. Id. After the cars passed each other, they stopped. Id. Mr. Murphy backed up and told Mr. Sumka to turn off the car, but Mr. Sumka drove off. Id.
Mr. Murphy and his passengers pursued and forced Mr. Sumka off Vernon Road, which runs through an area that is “remarkably rural [and] heavily treed ... without any sort of improvement ... except perhaps a rickety barbed wire fence.” Murphy v. State,
Mr. Murphy exited the car and confronted Mr. Sumka.
When he did, he saw Mr. Murphy throw a folding knife into the woods, and he saw Mr. Jacobs lying in a ditch along the road, barely breathing. Id. Mr. Murphy and his companions threatened to kill Mr. Sumka and his family if he said anything, and Mr. King struck Mr. Sumka in the jaw. Id
Following Mr. Murphy’s instructions, Mr. Sumka left the scene with the other men. Id. During the car ride away, they told Mr. Sumka they had cut Mr. Jacobs’s throat and chest and had severed his genitals. Id. The group later went to Mr. King’s home, where Mr. Jacobs’s son, George, Jr., was staying, in an apparent attempt to kill him. Id. Mr. King’s mother intervened and “thwarted [their] plan.” Id.
A passerby found Mr. Jacobs in the ditch with his face bloodied and slashes across his chest and stomach. Id. His genitals had been cut off and his throat slit. Id. According to a state criminalist, Mr. Jacobs had been dragged off the road after his genitals were severed. Id. His neck and chest had been cut on the side of the road, where he bled to death over the course of four to twelve minutes, though it may have taken longer. Id.
After Mr. Murphy returned home and confessed to Ms. Jacobs, he was arrested. Id. The State of Oklahoma charged him with Mr. Jacobs’s murder and sought the death penalty.
B. Procedural History
A jury convicted Mr. Murphy of murder in Oklahoma state court and imposed the death penalty. His appeal and post-conviction proceedings have since moved through the Oklahoma and federal courts as recounted below.
Although the overall history of Mr. Murphy’s case is complex, the history of the jurisdictional claim we resolve here can be succinctly summarized. After Mr. Murphy’s conviction and death sentence were affirmed on direct appeal, he applied for state post-conviction relief in 2004, arguing the Oklahoma state courts had lacked jurisdiction to try him. The OCCA ordered an evidentiary hearing. Following the hearing, the state district court concluded Oklahoma’s jurisdiction was proper because the crime did not occur in Indian country. The OCCA affirmed that conclusion in 2005. Mr. Murphy then sought federal habeas relief, but the federal district court denied relief in 2007. Mr. Murphy now appeals.
In the interest of thoroughness, and because Mr. Murphy’s case has until now proceeded in a disjointed fashion, we provide a complete procedural history below.
1. Trial
In 2000, a jury in McIntosh County, Oklahoma, convicted Mr. Murphy of first degree murder under Okla. Stat. tit. 21 § 701.7(A) (1999). In the penalty phase, the jury found aggravating circumstances supported the death penalty. Murphy,
2. Direct appeal
Mr. Murphy raised a variety of trial issues in a direct appeal to the OCCA. On May 22, 2002, the OCCA affirmed his conviction. Id. at 888. The court also performed a statutorily mandated sentencing review in which the court considered the aggravating circumstances in light of the mitigating evidence, including Mr. Murphy’s “mild mental retardation,” and concluded his death sentence was “factually substantiated and appropriate.” Id. at 887-88.
3. First Application for State Post-Conviction Relief
On February 7, 2002, while his direct appeal was pending in the OCCA, Mr. Murphy filed his first application for state post-conviction relief. See Murphy v. State,
On September 4, 2002, .the OCCA denied relief on all of the'-issues Mr. Murphy had raised in his first application for state post-conviction relief except his Atkins claim.
On remand, the state district court concluded Mr. Murphy “had not raised sufficient evidence to create a fact question on the issue of mental retardation.” Murphy v. State,
4. Filing of First Application for Federal Habeas Relief
On March 5, 2004, Mr. Murphy.filed a federal habeas application under 28 U.S.C. § 2254 asserting 13 grounds for relief.
On August 30, 2004, the U.S. District Court for the Eastern District of Oklahoma concluded Mr. Murphy’s application contained some claims that had not been exhausted in Oklahoma state court. The federal district court directed Mr. Murphy to. drop his unexhausted claims,
On September 10, 2004, Mr. Murphy did so by filing an amended application containing eight claims, all of which were exhausted. His amended application remained pending in- the federal district court while he pursued additional relief in state court.
5. Second Application for State Post-Conviction Relief
On March 29, 2004—shortly after he filed his original federal habeas application—Mr. Murphy returned to state court and filed a second application for post-conviction relief to exhaust claims he had dropped from his federal habeas application. His second application for state post-conviction relief alleged:
1. Oklahoma lacked jurisdiction because the Major Crimes Act gives the federal government exclusive jurisdiction to prosecute murders committed by Indians in Indian country.5
2. The OCCA’s earlier denial of a jury trial on the issue of his “mental retardation” had violated his constitutional rights.
3. Oklahoma’s lethal injection protocol violated the Eighth Amendment.
See Murphy,
a. Evidentiary hearing
The state district court held a one-day evidentiary hearing. Id. at 1201. Mr. Murphy argued Oklahoma lacked jurisdiction because the crime occurred in Indian country and 18 U.S.C. § 1153 provides for exclusive federal jurisdiction over murders committed by Indians in Indian country.
[T]he term “Indian country” ,.. means
(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, •
(b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and
(c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
18 U.S.C. § 1151 (paragraph breaks added). An area qualifies as Indian country if it fits within any of these three categories. Mr. Murphy argued the crime occurred in Indian country under all three categories.
In December 2004, the state district court concluded state jurisdiction was proper because the crime had occurred on state land. See
b. Appeal to the OCCA
Mr. Murphy appealed to the OCCA. On December 7, 2005, the OCCA denied relief on his jurisdictional and Eighth Amendment claims but granted limited relief on the Atkins claim. See id. at 1209.
On the jurisdictional issue, the OCCA found the record did not support some of the state district court’s determinations, but it affirmed the ultimate determination that Oklahoma’s jurisdiction was proper. Id. at 1201-08. The OCCA accepted the state district court’s findings regarding where the crime unfolded, but it rejected the court’s conclusion that Oklahoma owned the road and the ditch abutting it. Id. at 1202. Rather, the OCCA concluded, Oklahoma’s “interest in the area in question is in the nature of an easement or right-of way.” Id. The Creek Nation had long owned the land in question when, under a statute enacted in 1902, Oklahoma received the right to build a public highway. Id. at 1203. Tracing the history of the specific tract where the crime occurred, the OCCA concluded it had passed in the early twentieth century from the Creek Nation to Lizzie Smith, a member of the Creek Nation, and that all interest in the land—except for a restricted 1/12 mineral interest—had since been conveyed to non-Indians. See id. at 1204-06. The OCCA concluded this Indian interest was insufficient to qualify the land as an Indian allotment under § 1151(c): “A fractional interest in an unobservable mineral interest is insufficient contact with the situs in question to deprive the State of Oklahoma of criminal jurisdiction.” Id. at 1206.
The OCCA criticized the state district court for not addressing whether the crime was committed within the Creek Reservation or within a dependent Indian community, but it concluded the error was harmless because Mr. Murphy had been afforded a chance “to make an extended offer of proof.” Id. at 1207. The OCCA said that the evidence, had it been admitted, was “insufficient” to show “that the tract in question qualifies as a reservation or dependent Indian community.” Id.
With respect to the reservation theory, the OCCA acknowledged our decision in Indian Country, U.S.A., Inc. v. Oklahoma ex rel. Oklahoma Tax Commission,
As for the two non-jurisdictional issues Mr. Murphy. raised in his second post-conviction application, the OCCA granted limited relief on one and denied relief on the other. First, it reversed course on the Atkins issue and found Mr. Murphy had provided sufficient evidence to create a factual question for a jury on his “mental retardation claim.” Id. It therefore ordered the case remanded. Id. Second, the OCCA ruled Mr. Murphy had waived his Eighth Amendment challenge to Oklahoma’s lethal injection protocol by failing to raise it earlier. Id. at 1209.
In summary, the OCCA rejected the jurisdictional challenge and the Eighth Amendment claim, but it remanded for a jury trial on Mr. Murphy’s Atkins claim.
c. Atkins trial and appeal
Following a September 2009 trial in the state district court, a jury in McIntosh County rejected Mr. Murphy’s claim of “mental retardation.” Murphy v. State,
Before the re-trial, the State moved to terminate further proceedings. A state statute had supplanted the OGCA’s Atkins procedures and provided that no defendant who received an intelligence quotient, (“I.Q.”) score of 76 or above could “be considered mentally retarded.” Okla. Stat. tit. 21 § 701.10b(C); see also
Mr. Murphy appealed and raised four propositions of error to the OCCA. Id. at 1287. On April 5, 2012, the OCCA ruled the district court had properly relied on the new state law. Id. at 1289. The OCCA rejected all of Mr. Murphy’s claims, thus concluding proceedings on the second post-conviction application. Id. at 1294.
6. Federal District Court Prpceedings on First Federal Habeas Application
On December 28, 2005, after the OCCA rejected his jurisdictional and Eighth Amendment claims but before the conclusion
On August 1, 2007, the district court entered an opinion and order denying all ten claims in Mr. Murphy’s habeas application. Murphy v. Sirmons,
On the jurisdictional claim, Mr. Murphy argued the crime had occurred in Indian country under just two theories: (1) the land was part of the Creek Reservation under § 1151(a) and (2) the land was an Indian allotment under § 1151(c). Id. at 1288. Applying the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d), the district court ruled that the OCCA’s decisions against Mr. Murphy on these theories were neither contrary to nor an unreasonable application of clearly established federal law. See
The district court rejected Mr. Murphy’s other claims but granted him three certificates of appealability (“COA's”)
7. First Appeal to the Tenth Circuit (No. 07-7068)
Mr. Murphy appealed to tips court. On November 16, 2007, we abated the appeal to await resolution of Mr. Murphy’s then-pending Atkins claim in Oklahoma state court.
8. Second Application for Federal Ha-beas Relief
On April 26, 2012, following the OCCA’s final denial of his Atkins claim, Mr. Murphy filed a second § 2254 application in the Eastern District of Oklahoma that challenged the OCCA’s resolution of the Atkins issue.
9. This Consolidated Appeal
Mr. Murphy sought to appeal from the district court’s denial of relief on his second § 2254 habeas application. We consolidated that appeal (No. 15-7041) with his appeal from the denial of his first habeas application (No. 07-7068) to form this case.
Mr. Murphy raises eight issues. Because he obtained COAs for each one,
As to one of the issues—whether Oklahoma or the federal government had jurisdiction over the murder case—we granted the motion of the Muscogee (Creek) Nation and the Seminole Nation of Oklahoma to file a joint amici brief.
II. LEGAL BACKGROUND
We conclude the crime occurred on the Creek Reservation and therefore the Oklahoma courts lacked jurisdiction. This section addresses the law applicable to the jurisdictional issue. We begin with (A) our standard of review and then address (B) the. substantive law of Indian country jurisdiction.
A. Standard of Review
The parties disagree over the, standard of review that should apply to Mr. Murphy’s jurisdictional claim. The State contends AEDPA’s deferential standard should apply. Mr. Murphy disagrees and argues we should review'his claim de novo. We begin by discussing this disagreement, but we choose not to resolve it because Mr. Murphy prevails even under AEDPA review. Because we assume the AEDPA standard applies, we then go on to describe it.
1. The Parties’ Dispute
As we discuss in greater detail below, AEDPA' generally requires federal habeas courts to defer to state court decisions. Mr. Murphy argues AEDPA does not apply when, as here, a state court denies a defendant’s challenge to the state court’s subject matter jurisdiction. AEDPA deference,- he maintains, “presupposes” the state court had jurisdiction to decide a given claim in the first place. Aplt. Br. at 26. Because the question of Indian country jurisdiction implicates tribal and federal sovereignty interests, he also contends that federal courts, unconstrained by AEDPA, must make the final determination over the jurisdictional issue. And he argues that applying AEDPA to jurisdictional claims would pose separation-of-powers and other constitutional probléms.
The State responds that nothing in AEDPA says subject matter jurisdiction claims should be reviewed de novo. It notes Mr. Murphy has failed to cite a case in support of his view that AEDPA does not apply to jurisdictional questions. It argues Mr. Murphy has waived any argument against AEDPA’s application because he supported the district court’s application of AEDPA below. The State also disputes his constitutional arguments.
We need not decide whether this issue is waivable, whether Mr. Murphy has waived it here, or even whether AEDPA is the appropriate standard. We choose to assume without deciding that AEDPA applies.
We took this approach in Magnan v. Trammell,
2. The AEDPA Standard
We first discuss AEDPA’s general framework and then focus on the statute’s “contrary to” clause because that provision guides our analysis.
a. Overview
“AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.” Burt v. Titlow, — U.S. —,
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1)-(2). “If this standard is difficult to meet, that is because it was meant to be.” Harrington v. Richter,
Section 2254(d) provides three ways to overcome AEDPA deference. Two appear in § 2254(d)(1), which provides that a state prisoner can qualify for habeas relief by showing a state court decision was (1) “contrary to” or (2) “involved an unreasonable application of’ federal law that was clearly established by the Supreme Court. 28 U.S.C. § 2254(d)(1); see Bell v. Cone,
Mr. Murphy makes arguments based on all three, but because we need apply only § 2254(d)(1)’s “contrary to” provision to resolve this case, we restrict our discussion to that clause.
b. The “contrary to” clause
When a state court adjudicates a prisoner’s federal claim on the merits, review under § 2254(d)(l)’s “contrary to” clause proceeds in three steps.
First, we must decide whether there is clearly established federal law that applies to the claim. See House v. Hatch,
Second, if we can identify clearly established law, we then must assess whether the state court’s decision was “contrary to” that law. See 28 U.S.C. § 2254(d)(1); see also House,
Third, if the state court rendered a , decision that was “contrary to” clearly established Supreme Court precedent by applying the wrong legal test, we do not necessarily grant relief; rather, we review the claim applying the correct law. Put differently, “it is ... a necessary prerequisite to federal habeas relief that a prisoner satisfy the AEDPA standard of review,” but habeas relief does not “automatically issue if a prisoner satisfies the AEDPA standard.” Horn v. Banks,
As previously mentioned, we choose to assume that AEDPA supplies our standard of review and now turn to the substantive law governing Indian country jurisdiction.
B. Indian Country Jurisdiction
Understanding the Indian country-jurisdiction issue in this case requires background knowledge about (1) reservations, (2) the Major Crimes Act, (3) the meaning of “Indian country,” and (4) how a reservation can be disestablished or diminished. We address these topics-below.
1. Reservátions
The federal government began creating Indian reservations during the nineteenth century. See Felix S. Cohen’s Handbook of Federal Indian Law 60 (Nell Jessup Newton ed., 2012) [hereinafter “Cohen”]. “During the 1850s, the modern meaning of Indian reservation emerged, referring to land set aside under federal protection for the residence or use of tribal Indians, regardless of origin.” Id. at 190-91. “[T]he term [‘Indian reservation’] has come to describe federally-protected Indian tribal lands, meaning those lands which Congress has set apart for tribal and federal jurisdiction.” Indian Country, U.S.A.,
2. The Major Crimes Act
The Major Crimes Act is the jurisdictional statutе at the'heart of this case. It applies to enumerated crimes committed by Indians in “Indian country.” When the Major Crimes Act applies, jurisdiction is exclusively federal. See Negonsott v. Samuels,
The current version of the Major Crimes Act provides in relevant part:
Any Indian who commits against the person-or property of another Indian or other person any • of the following offenses, namely, murder .,. within, the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States,
18 U.S.C. § 1153(a). If the Major Crimes Act applies to an Indian defendant, he or she “shall be tried in the same courts and in the same manner as are all other persons committing such offense within the exclusive- jurisdiction of the United States.” 18 U.S.C. § 3242.
The parties agree that Mr.' Murphy and Mr. Jacobs, both members of the
In Ex parte Crow Dog,
[A]ll Indians, committing against the person or property of another Indian or other person any of the following crimes, namely, murder ... within any Territory of the United States, and either within or without an Indian reservation, shall be subject therefor to the laws of such Territory relating to said crimes ... ; and all such Indians committing any of the above crimes against the person or property of another Indian or other person within the boundaries of any State of the United States, and within the limits of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.
§ 9,
In cases decided in the late nineteenth and early twentieth centuries, the Supreme Court explained that the Major Crimes Act applied to crimes committed within the boundaries of Indian reservations regardless of the ownership of the particular land on which the crimes were committed. See United States v. Celestine,
In 1948, Congress amended the Major Crimes Act and codified the definition of “Indian country.” See Act of June 25, 1948, ch. 645, 62 Stat. 683, 757; see also Alaska v. Native Village of Venetie Tribal Gov’t,
(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation,
(b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and
(c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
18 U.S.C. § 1151 (paragraph breaks added).
At the same time Congress enacted this definition of Indian country, it also amended the Major Crimes Act so that it would apply in Indian country as defined in the statute. See
Within § 1151’s definition of Indian country, the § 1151(a) reservation clause concerns us here. Congress provided that “Indian country” includes “all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation.” 18 U.S.C. § 1151(a) (emphasis added). Thus, land within the boundaries of an Indian reservation is in “Indian country.”
The Supreme Court confirmed this understanding in Seymour v. Superintendent of Washington State Penitentiary,
4. Reservation Disestablishment and Diminishment
Only Congress can disestablish or diminish a reservation.
Having recognized Congress’s power to disestablish.and diminish Indian reservations, the Supreme Court also has developed a framework to determine whether Congress has exercised its power with respect to a given reservation. We next discuss (a) the presumption against disestablishment and diminishment, (b) Congress’s pursuit of a policy called allotment aiid its relationship to reservation borders, and (c) the Supreme Court’s three-part Solem test for determining whether Congress has altered a reservation’s boundaries.
. a. Presumption against disestablishment and diminishment
Courts do not lightly infer that Congress has exercised its power to disestablish or diminish a reservation See DeCoteau v. Dist. Cty. Court for the Tenth Judicial Dist.,
b. The policy of allotment
The Supreme Court’s test, discussed below, for determining whether Congress intended to disestablish or diminish a reservation developed after Congress pursued a policy known as allotment.
Following decades of setting aside “large sections of the western States and Territories ... for Indian reservations,” Congress in the late nineteenth century adopted “the view that the Indians tribes should abandon their nomadic lives orí the communal reservations and settle into an agrarian economy on privately-owned parcels of land.” Solem,
Allotment on its own does not disestablish or diminish a reservation. See Mattz v. Arnett,
Congress pursued the allotment policy on a national scale in the 1887 General Allotment Act. See Act of Feb. 8, 1887, ch. 119, 24 Stat. 388.
During the allotment era, Congress-“anticipated the imminent demise” of reservations. Id. at 468,
The Supreme Court has said this general hostility to reservations and Indian communal life does not establish that a particular reservation was disestablished:
Although the Congresses that passed the surplus land acts anticipated the imminent demise of the reservation and, in fact,, passed the acts partially to facilitate the process, we have never been willing to extrapolate from this expectation a specific congressional purpose of diminishing reservations with the passage of every surplus land act. Rather, it is settled law that some surplus land acts diminished reservations, and other surplus land acts did not.
Solem,
c. Solem factors
In Solem v. Bartlett, a member of the Cheyenne River Sioux Tribe sought habeas relief after a state court in South Dakota convicted him of attempted rape. Id. at 465,
First, Solem instructs courts to examine the text of the statute purportedly disestablishing or diminishing the reservation. Statutory language is “[t]he most probative evidence of congressional intent.” Id. at 470,
Second, Solem requires courts to consider “events surrounding the passage” of the statute.
Third, Solem considers, though “[t]o a lesser extent,” “events that occurred after the passage” of the relevant statute. Id. This evidence can include “Congress’s own treatment of the affected areas” as well as “the manner in which the Bureau of Indian Affairs and local judicial authorities dealt with unallotted open lands.” Id. Later demographic history—evidence of “who actually moved onto opened reservation lands”—also offers a “clue as to what Congress expected would happen once land on a particular reservation was opened to non-Indian settlers.” Id. at 471-72,
In conducting this three-part inquiry, “[t]here are ... limits to how far” courts can “go to decipher Congress’s intention in any particular surplus land act.” Id. at 472,
* * * *
Having addressed AEDPA, the substantive law of Indian country jurisdiction, and reservation disestablishment and diminishment, we turn now to our analysis.
III. DISCUSSION
Our analysis addresses three issues:
(A) Whether there was clearly established federal law as determined by the Supreme Court when the OCCA addressed Mr. Murphy’s jurisdictional claim. We conclude the Solem framewоrk constituted clearly established law.
(B) Whether the OCCA rendered a decision contrary to this clearly established law when it resolved Mr. Murphy’s jurisdictional claim. We conclude that it did because the OCCA failed to apply the Solem framework and took an approach incompatible with it.
(C)Whether the federal government has exclusive jurisdiction over Mr. Murphy’s case. We conclude that it does because, under the Solem framework, Congress has not disestablished the Creek Reservation.
Because the crime occurred in Indian country, Oklahoma lacked jurisdiction. We therefore reverse the district court’s denial of habeas relief and remand with instructions to grant Mr. Murphy’s application for
A. Clearly Established Federal Law
Our first inquiry under § 2254(d)(1) is whether clearly established federal law governed Mr. Murphy’s claim. See House,
1. Solem—Clearly Established Law in 2005
The Supreme Court decided Solem in 1984, more than two decades before the OCCA decided Mr. Muiphy’s case. Even in 1984, the Solem Court recognized the three-part framework it applied was not a new development in the law. The Solem Court explained its precedent had already “established a fairly clean analytical structure” for deciding whether Congress altered a reservation’s borders.
Between 1984 when Solem was decided and 2005 when the OCCA issued its decision in Mr. Murphy’s case, the Supreme Court did nothing to call Solem into doubt. Rather, it reaffirmed Solem’s three-part framework and applied it to other reservations in the 1990s. See Yankton Sioux Tribe,
In the years before thé OCCA’s decision, federal appeals courts, including this court, recognized Solem provided the governing framework. See, e.g., Shawnee Tribe v. United States,
The Supreme Court has recognized that a legal framework for evaluating a given
We сonclude Solem’s three-part framework for evaluating whether Congress has disestablished or diminished an Indian reservation was clearly established when the OCCA rendered its decision. The State’s arguments to the contrary miss the mark.
2. The State’s Arguments
The State acknowledges the Supreme Court has applied the Solem framework to “surplus land acts, which provided for the sale of large areas of land for white settlement,” but it argues' that, with respect to the Creek Nation, Congress allotted’ almost all of the Reservation to tribal members. Aplee. Br. at 46-47. This point has nothing to do with whether the’ Solem framework applies, though it does suggest Congress did not intend to disestablish the Creek Reservation. The State offers no explanation for why the proportion of land allotted to tribal members relative to the land opened to non-Indian settlement makes a difference to whether Solem applies. In making its disestablishment case, the- State relies on statutes that allotted the Creek Reservation, and we discuss these laws below. Those statutes, like the statute in Solém, “force[d] Indians onto individual allotments carved out of [a] reservation ] and .,. opented] up unallotted lands for non-Indian settlement.” Solem,
The State also argues that Congress, in addition to allotting Creek lands, “took a number of steps toward[] the complete .abolition of the Creek Nation as. a political entity.” Aplee. Br. at 46; see also id. at 47. Below, we consider the State’s arguments about political dissolution as they relate to reservation disestablishment. But the State offers no explanation or legal authority for why legislation dealing with a tribe’s political status would make the So-lem framework anything-.less than clear when it comes to reservation disestablishment—the issue before us.
Despite its arguments that there is no clearly established law, the State’s- brief recognizes Solem is controlling. It defends the substantive correctness of the OCCA’s decision by reference to Solem’s three-part test. Nowhere does the State argue that some other legal framework applies.
* * * *
Because. clearly established Supreme Court law governs, Mr. Murphy’s Indian country jurisdictional claim, we proceed to the next step of the § 2254(d)(1) inquiry: whether the OCCA rendered a decision that was “contrary to” the Solem framework.
B. The OCCA Decision—Contrary to Clearly Established Federal Law
Before we address whether the OCCA’s decision was “contrary to” Solem, we consider—
1. The OCCA’s Merits Decision
The following is the entirety of the OCCA’s discussion of the jurisdictional issue with respect to the Reservation:
The remaining issue, under proposition one, is whether or not the land in question is part of a Creek Natio'n reservation that has never been disestablished or is part of a dependent Indian community.[29 ] Unfortunately,- the - District Court decided, based upon the Assistant District Attorney’s urging, that these questions were beyond the scope of the evidentiary hearing, even though we clearly asked the Court to determine if the tract in question was Indian country under 18 U.S.C. § 1151.
Be that as it may, the error was alleviated when the District Court allowed Petitioner's![30 ] counsel to make an extended offer of proof regarding the testimony and evidence that would have been presented on these two questions had that opportunity been given. Accordingly, we find the error was harmless. Even if the evidence had been admitted, it is insufficient to convince us that the tract in question qualifies as a reservation or dependent Indian community.
Petitioner’s proffered expert, Monta Sharon Blackwell, stated by affidavit that “[t]here was never a formal Creek Nation ‘reservation’ but for practical purposes” certain treaty language was “tantamount to a reservation under Federаl law.” Thus, the “Creek Nation, historically and traditionally, is a confederacy of autonomous tribal towns, or Talwa, each with its own political organization and leadership.”[31 ]
Ms. Blackwell and Jeff Dell[32 ] both took the position that the historical boundariesof the Creek Nation remained intact even after the various Creek lands were subjected to the allotment process, but no case is cited for the position that the individual Creek allotments remain part of an overall Creek reservation that still exists today. 18
The best authority on this point is Indian Country, U.S.A., Inc. v. State of Oklahoma,829 F.2d at 975 , which treats the Creek Nation lands as a “reservation” as of 1866.19 However, the Tenth Circuit declined to answer the question of whether the exterior boundaries of the 1866 Creek Nation have been disestablished and expressly refused to express an opinion in that regard concerning allotted Creek lands. See id. at 975 n. 3, 980 n. 5.
If the federal courts remain undecided on this particular issue, we refuse to step in and make such a finding here.
Murphy,
Mr. Murphy, focusing mainly on the court’s last sentence, argues the OCCA refused to adjudicate his reservation claim on the merits. The State maintains the OCCA decided the reservation issue on the, merits because it considered Mr. Murphy’s evidence, found it insufficient, and denied relief.
Whether the OCCA adjudicated the jurisdictional claim “on the merits” as that phrase is used in 28 U.S.C. § 2254(d) determines our standard of review. As discussed above, we have chosen to assume (without deciding) that AEDPA applies to jurisdictional claims of the type Mr. Murphy raises. But even when a type of claim can qualify for AEDPA review, federal courts do not apply AEDPA deference when the state court did not adjudicate the specific claim “on the merits.” See Cone v. Bell,
The Supreme Court has explained that a state court’s decision is “on the merits” even when it denies the prisoner’s claim “without an accompanying statement of reasons.” Richter,
2. The OCCA’s Decision Was Contrary to Solem
Mr. Murphy argues that, if the OCCA decided the reservation jurisdiction issue, its decision was “contrary to” clearly established Supreme Court authority. We agree.
a. No citation to Solem
Nowhere in its discussion of the reservation issue—nor anywhere else in its opinion—did the OCCA cite Solem, Hagen, Yankton Sioux Tribe, or any of the Supreme Court’s other Indian reservation disestablishment precedent.
Here, the OCCA did not merely fail to cite controlling Supreme Court authority, it failed to apply it, and in deviating from Solem, the OCCA’s reasoning contradicted clearly established law.
b. Failure to apply Solem
Setting aside the absence of citations, the substance of the OCCA’s analysis lacks even cursory engagement with any of the three Solem factors. The OCCA did not evaluate any statute to see if Congress had disestablished the Creek Reservation. It also did not evaluate the historical context of any laws. Nor did the OCCA evaluate later treatment of the area in question or
What the OCCA did say in its analysis contradicted Solem. Instead of heeding Solem’s “presumption” that an Indian reservation continues to exist until Congress acts to disestablish or diminish it, see
Instead of applying the Solem factors, the OCCA looked for federal court decisions holding that the Reservation continues to exist. This yielded the OCCA’s single citation to legal authority—our. decision in Indian Country, U.S.A., which was not a disestablishment ease. See
The Supreme Court has occasionally faulted federal habeas courts for concluding state courts issued decisions that were “contrary to” federal law when the federal court failed to give the “benefit of the doubt” to the state court. See, e.g., Holland v. Jackson,
This is not one of those cases. The OCCA failed to articulate or apply the proper legal- framework anywhere in its opinion, and its analysis 'is incompatible with the Solem framework. At oral argument, we questioned the State about whether the OCCA had applied Solem.
THE COURT: Is there anything to in.dicate [the OCCA].- applied [Solem]! Anything? Did they mention steps one, two,, and three?
THE STATE: They did not, Your Honor.
THE COURT: Did. [the OCCA] say anything that would fit. in steps one, two, and three?
THE STATE: They—No.-
Oral Arg. at 46:00-46:13. The State argues the OCCA’s decision was not contrary to
c. The State’s arguments
The State, repeating the OCCA’s mistake in reversing the presumption against disestablishment, argues Mr. Murphy “failed to present evidence that Congress did not intend disestablishment.” Aplee. Br. at 48 (emphasis added). But under Solem, that is not the test. Solem and every case applying it presume that a reservation continues to exist unless Congress has legislated otherwise. As demonstrated above, the OCCA not only ignored but also reversed this presumption. So does the State. We will not make the same mistake here.
The State further argues that Mr. Murphy “bears the burden of establishing federal jurisdiction, and the burden under AEDPA.” Id. Of course, the burden of showing federal jurisdiction—our jurisdiction in this proceeding—is on Mr. Murphy. He has earned that burden. Our jurisdiction is proper under 28 U.S.C. § 2253(a), (c)(1)(A), because he secured COAs for the issues on appeal. And his burden under AEDPA is to show that the OCCA rendered a decision that was “contrary to” clearly established federal law. He. has.
The State also argues that our deference to the OCCA should be “at its apex”' when the clearly established law states a general standard. Aplee. Br. at 52. Although the State is correct that “the more general-the rule at issue ... the more leeway state courts have in reaching outcomes in case-by-case determinations,” Renico v. Lett,
The State reminds us that our review under AEDPA is limited to the record before the OCCA. But we have no need to expand the record. The State acknowledges that the state-court evidentiary hearing determined Mr. Murphy’s status as an Indian as well as the precise location of the crime. The OCCA relied on these facts, and we do not question them. Our analysis requires us only to compare the OCCA’s adjudication of Mr. Murphy’s claim with the Supreme Court’s clearly
Mr. Murphy put the issue of whether the Creek Reservation had been disestablished squarely before the OCCA, but the court decided the claim by ignoring and contradicting Solem. Its decision was thus “contrary to ... clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). Consequently, we must review his jurisdictional claim without AEDPA deference. See Milton,
C. Exclusive Federal Jurisdiction
Mr. Murphy has overcome AEDPA’s barrier to habeas relief, and we must now decide his jurisdictional claim de novo.
1. Additional Legal Background
We review the Supreme Court’s and our court’s most recent applications of Solem.
a. Supreme Court authority
In Nebraska u Parker, the Supreme Court unanimously recommitted to the “well settled” Solem framework. — U.S. —,
Before examining thé 1882 statute- at issue, the Court reviewed its precedent and identified “[c]ommon textual indications” of a congressional intent to alter reservation boundaries. Id. at 1079. “[H]allmarks of diminishment” include:
• explicit references to cession or surrender of tribal interests,
• unconditional congressional commitments to compensate the tribe with a fixed sum for the total surrender of tribal claims to opened lands, and
• provisions restoring reservation lands to “the public domain.”
Id. The statute in Parker featured none of these hallmarks. Id. Rather, it provided for a government survey and appraisal of certain lands and for sales to non-Indians. Id. The Court contrasted the statute with earlier nineteenth centuiy treaties between the Omaha .Tribe and United States that had addressed other lands and had “terminated the Tribe’s jurisdiction over their land in unequivocal terms.” Id. at 1080 (quotations omitted). The Court concluded the 1882 statute did not diminish the Reservation’s boundaries. Id.
Turning to the second Solem step, the Parker Court determined the “mixed historical' evidence” around the law’s passage
The Court then considered step three— the later treatment of the area and its demographic history. Id. at 1081. Step-three evidence, the Court explained, “might reinforce a finding as to diminishment or nondiminishment based on the text” of the statute, but “never”- has the Court “relied solely on this third consideration to find diminishment.” Id. (alteration and quotations omitted).
The step-three evidence in Parker strongly favoring diminishment helps illustrate the significance Solem places in step-one statutory text. In Parker, “the Tribe was almost entirely absent from the disputed territory for more than 120 years.” Id. It did not enforce any regulations in the area, nor did it “maintain an office, provide social services, or host tribal celebrations or ceremonies.” Id. For more than a hundred years, the federal government treated the lands as belonging to Nebraska. Id. at 1082. Of the people living in the town on the disputed site, most were not associated with the Tribe, and, since the early twentieth century, less than two percent of the Tribe’s members lived in the disputed area. Id. at 1078.
This history was nonetheless insufficient, the Supreme Court said, to “overcome the statutory text, which is devoid of any language indicative of Congress’ intent to diminish.” Id. at 1082 (quotations omitted). Despite the “compelling” justifiable expectations of non-Indian settlers' stemming “from the Tribe’s- failure to assert jurisdiction” over a long period of time, the Court held such non-Indian expectations “cannot diminish reservation boundaries.” Id. “Only Congress has the power to diminish a reservation.” Id. And as Parker makes clear, the Supreme Court looks first and foremost to statutory text when attempting to discern Congress’s intent.
b. Tenth Circuit authority
This court has addressed Indian reservation disestablishment and diminishment issues on numerous occasions. See, e.g., Osage Nation v. Irby,
Most recently, in Wyoming v. EPA,
Applying the “hierarchical, three-step framework” of Solem, we began with the statutory text. Id. at 869-74. We held the following language evinced Congress’s intent .to diminish the Reservation:
The said Indians belonging on the Shoshone or Wind River Reservation, Wyoming, for the consideration hereinafter named, do hereby cede, grant, and relinquish to thé United States, all right, title, and interest which they may have to all the lands embraced within said reservation, except the lands within and bounded by. the following lines
Id. at 870 (emphasis omitted)
Turning to step two—the historical context surrounding the passage of the Act— we found it “further confirmed] Congress intended to diminish the Wind River Reservation.” Id. at 874 (majority opinion). A history of failed congressional attempts to sever the area north of the Big Wind River from the Reservation informed our evaluation of the eventually enacted law that accomplished that diminishment. Id. at 874-79.
Our analysis at step three—concerning the later treatment and demographics of the area—was “brief and ultimately d[id] not impact our conclusion.” Id. at 879. “Unsurprisingly,” from the “volumes of material” unearthed by the parties, “each side ... managed to uncover treatment by a host of actors supporting its respective position,” but because we could not “discern clear congressional intent” from the conflicting evidence, we found the later history held little value. Id.; see also id. at 887-88 (Lucero, J., dissenting) (agreeing with majority that step three “comes into play only at the margins” and that the post-act history was too “muddled” to provide clear evidence of congressional intent). '
* * * *
This more recent case law, though unavailable to the OCCA in 2005, informs our de novo review of Mr. Murphy’s claim. Indeed, we are bound by this precedent. Before turning to apply the Solem framework, we discuss relevant aspects of the Creek Nation’s history, which provides important context for our Solem analysis.
2. Additional Factual Background— Creek Nation History
The following overview of the Tribe’s history provides important context for the parties’ arguments and our application of Solem.
a. Original homeland and forced relocation
The Creek Nation once exercised domain over much of present day Alabama and Georgia. See Indian Country, U.S.A.,
The federal government and the Creek Nation entered into several treaties related to this forced relocation. In 1826, the Creek Nation “cede[d] to the United States” certain lands in Georgia. Treaty
b.Nineteenth century diminishment
After the Creek Nation’s relocation west, its land was diminished on multiple occasions in the mid-nineteenth century. “In 1856, the Creeks agreed to cede to the Seminole Tribe a portion of their lands.” Indian Country, U.S.A.,
Following the Civil War, an 1866 treaty required “the Tribe ... to cede the western portion of its domain.” Id. “Thé Creek Nation retained title to its ‘reduced ... reservation,’” which the United States promised would be “ ‘forever set apart as a home for said Creek Nation.’ ” Id. (alteration in original) (quoting Treaty with the Creeks, arts. 3, 9, June 14, 1866, 14 Stat. 785, 786, 788, available at
c. 1867 Constitution and government
“In 1867, the Creeks established a written constitutional form of government which included a separation of powers into executive, legislative and judicial branches.” Muscogee (Creek) Nation v. Hodel,
d. Early congressional regulation of modern-day Oklahoma
“In 1889, Congress created a special federal court of limited jurisdiction in the Indian Territory, which at that time encompassed most of present-day Oklahoma.” Indian Country, U.S.A.,
In 1890, “Congress carved the Territory of Oklahoma out of the western half of the Indian Territory.” Id. “The lands in the east held by the Five Civilized Tribes remained Indian Territory, subject only to federal- and tribal authority.” Id. Also in 1890, “Congress expanded the civil and criminal jurisdiction of the special United States court in the diminished Indian Territory.” Id. Congress provided that certain laws from neighboring Arkansas would apply in Indian Territory,' provided they were “not locally inapplicablé or in conflict ... with any law of Congress.” Id. (quotations omitted). “The tribes, however, retained exclusive jurisdiction over all civil and criminal disputes involving only tribal members, and the incorporated laws of Arkansas -did not apply to such cases.” Id.
e. The push for allotment
“During the 1880s and 1890s, the white population within the Indian Territory grew dramatically.” Id. at 977. =“[T]he white newcomers were frustrated by the communal tenure of the Indian lands, and pressured Congress to break up the tribal land base, attach freely alienable individual title to the land, and eventually create a new state.” Id.
As already mentioned, the objectives, among others, of this allotment policy “were to end tribal land ownership and to substitute private ownership, on the view that private ownership by individual Indians would better advance their assimilation as self-supporting members of our sоciety and relieve the Federal Government of the need to continue supervision of Indian affairs.” N. Cheyenne Tribe v. Hollowbreast,
“In 1893, reflecting federal policies to forcibly assimilate Indians into the non-Indian culture and to eventually create a new state in the Indian Territory, Congress created the Dawes Commission to negotiate with the Five Civilized Tribes ....” Id. “The Five Civilized'Tribes, however, refused to negotiate with the Dawes Commission, and Congress—still unsure of the scope of its authority to forcibly dispose of tribal lands[
In 1897, Congress imposed several measures to force the Creek Nation’s agreement to the allotment policy. Congress (1) “provided] that the body of federal law in Indian Territory, which included the incorporated Arkansas laws, was to apply irrespective of race”; (2) broadened
An 1898 law, the Curtis Act, continued the campaign. for allotment by “abolishing] the existing Creek court system and rendering] then-existing tribal laws unenforceable in the federal courts.” Id. It also “provided for forced allotment and termination of tribal land ownership without tribal consent unless the tribe agreed to allotment.” Muscogee (Creek) Nation,
f. Allotment and aftermath
“In 1901, the Creek Nation finally agreed to the allotment of tribal lands.” Indian Country, U.S.A.,
The Original Agreement, in addition to providing for allotment, addressed governance. It made clear the Creek courts, already abolished in 1898, were not being reestablished. ¶ 47,
As the termination date approached, however, “much remained to be done.” Harjo v. Kleppe,
In the Five Tribes Act, “Congress expressly delayed any plans to terminate the tribes, and provided that the tribal governments ‘are hereby continued in full force and effect.’” Indian Country, U.S.A.,
g. Creation of Oklahoma
Months after preserving and extending the Creek tribal government in 1906, Congress passed the Oklahoma Enabling Act, ch. 3335, 34 Stat. 267 (June 16, 1906). It allowed the Territory of Oklahoma, together with the Indian Territory, to apply for statehood. This law and its 1907 amendment “provided that federal Article III courts would succeed the special United States court in the Indian territory with respect to all cases arising under the Constitution, laws, or treaties of the United States.” Indian Country, U.S.A.,
h. Away from allotment
The 1930s saw another shift in federal policy as “Congress repudiated the practice of allotment” and passed the Indian Reorganization Act (“IRA”). Atkinson Trading Co. v. Shirley,
In a 1943 case concerning Oklahoma real estate taxes, the Supreme Court acknowledged the Creek Nation’s continuing vitality: “Thus far Congress has not terminated [its guardianship] relation with respect to the Creek Nation and its members. That Nation still exists, and has recently been authorized to resume some of its former powers.” Bd. of Cty. Comm’rs v. Seber,
i. Public Law 280
Policy shifted again in the post-World War II period, known as the “termination era,” as Congress focused on assimilating Indians and ending the United States’ trust relationship with many Indian tribes. See Cohen at 92-93.
One important law enacted in 1953, “Public Law 280,” addressed state jurisdiction. It allowed some states “to assert limited civil and broad criminal jurisdiction in Indian country.” Indian Country, U.S.A.,
Oklahoma chose not to use Public Law 280 to assert jurisdiction. State officials regarded the law as unnecessary because, in their view, Oklahoma already had full jurisdiction over Indians and their lands. Indian Country, U.S.A.,
The termination era began to fade in the late 1950s as federal Indian policy shifted again toward tribal self-government and self-determination. See Cohen at 93.
j. A new Creek Constitution
In 1979, under OIWA, the Creek Nation adopted a new constitution “providing for three separate branches of government, including a judiciary.” Muscogee (Creek) Nation,
k. Our decision in Indian Country, U.S.A.
In 1987, we held in Indian Country, U.S.A., that the Creek Reservation continues to exist, at least in some form. The case arose when Oklahoma tried to tax a bingo operation located on Creek Nation land that had never been allotted and was still held by the Tribe.
We now confront that question.
3. Applying Solern
We must apply the Solem framework to determine whether Congress has disestablished
We conclude Congress has not disestablished the Creek Reservation. The most important evidence—the statutory text—fails to reveal disestablishment at step one. Instead, the relevant statutes contain language affirmatively recognizing the Creek Nation’s borders. The evidence of contemporaneous understanding and later history, which we consider at steps two. and three, is rhixed and falls far short of “unequivocally reveal[ing]” a congressional intent to disestablish. Parker,
a. Step One: Statutory Text'
The State argues the Creek Reservation did not survive a series of statutes that allotted Creek lands and created the State of Oklahoma. The State “acknowledges that no relevant act of Congress contains language which expressly disestablished the Creek Nation reservation through the use of such words as ‘cede’ or ‘relinquish.’” Aplee, Br. at 57. It attempts to show disestablishment based on the collective weight of eight different laws enacted between 1893 and 1906.
At oral argument; we asked whether the State was relying on any particular statutory language in any of these laws for its step-one argument:
THE COURT: Where do you find your strongest statutory language that the Creek Reservation was diminished or disestablished?
THE STATE: You have to start before the 1901 Allotment Act. ... In 1893, Congress passed the law which set up .the Dawes Commission.
THE COURT: I asked for statutory language, not a general overview of a statute. Where in any of these acts is there, language that disestablished the Reservation?
THE STATE: In that 1893 Act, Congress said that they were appointing the Dawes Commission to negotiate with the Tribes in whatever means necessary in order to create a State embracing the Indian Territory and to substitute for the tribal governments a State government.
THE COURT: But that didn’t happen.
THE STATE:' The—well, I think that’s what we’re arguing about here today.
THE COURT: Well, let’s go tto 1901.
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THE COURT: Where’s the disestablishment in the Act? You haven’t given us in your brief or anything you said today any language from any a‘ct that shows disestablishment. And isn’t that the first Solem factor?
THE STATE: Well, yes, Your Honor, but [Congress does not] have to use the words ....
THE COURT: Well, okay, even if they don’t use the words. Can you give us some examples?
THE STATE: Of course—
THE COURT: Counsel, on tlíe same point, I think ... what we’re looking for is what has been given in other Supreme Court cases where they have seized on language whether it’s ‘public domain’ or whether it’s the word ‘cede’ or whetherit’s a lump-sum payment. Those—there are words in a sentence in those acts, and what we’re asking is can you show us words in a sentence in the acts that you’re talking about that are equal or equivalent of those words rather than a general summary sort of an answer? We’re looking for specific language.
THE STATE: Other than the entire context of what happened, I cannot. ... I still argue that the acts themselves are sufficient, -but, if not, under Osage Nation, when you look at the step-two evidence here, it’s overwhelming.
THE COURT: Well, so your answer is that you don’t have any language?
THE STATE: I do not have a specific section that I can look at and say this is—
THE COURT: And so the argument that I just heard is that it’s context. Your word.
THE STATE: Correct, If you look at all of the acts together, which the Supreme Court has said you can do—no I can’t— when you look at the specific language which provides for the allotment, it doesn’t use words [like] ‘cession,’ it doesn’t provide for a fixed sum, those sorts of things that have happened in other eases. But when you go all the way back to when Congress started passing acts that led up to the 1901 Act, it’s very clear that'their purpose was to substitute for the tribal government a State government and put the area of the Five Tribes under State law.
Oral Arg. at 50:23-54:07. This exchange aligns with the position taken in “the State’s brief. See Aplee. Br. at 57. At step one, the State does not rely on any particular statutory text but rather on all eight acts in general because it does not “have a specific séction” in any law that accomplished disestablishment. Oral Arg. at 53:18-21.
We question whether the State’s argument based on the overall thrust of eight different laws deserves to be called a step-one argument. At step one, “we start with the statutory text.” Parker,
Assuming the State’s cumulative-effect argument belongs in step one where we consider text, as opposed to step two where we consider context, we proceed to (i) review each of the eight statutes the State relies on, paying particular attention to the 1901 Original Allotment Agreement, and then (ii) conduct our step-one analysis based on those laws. The absence of statutory language in any of these acts disestablishing the Creek Reservation leads us to conclude the State “ha[s] failed at the first and most important step.” Parker,
i. The statutes
We discuss the State’s eight statutes in chronological order.
1) Act of March 3, 1893, ch. 209, 27 Stat. 612 (“1893 Act”).
The State first draws our attention to an appropriations law providing money for the federal government to fulfill treaty
In addition to providing funds, Congress gave “the consent of the United States” to the allotment of lands “within the limits of the country occupied by the Cherokees, Creeks, Choctaws, Chickasaws, and [S]eminoles.” § 15,
for the purpose of the extinguishment of the national or tribal title to any lands within that Territory now held by any and all of such nations or tribes, either by cession of the same or some part thereof to the United States, or by the allotment and division of the same in severalty among the Indians of such nations or tribes, respectively, as may be entitled to the same, or by such other method as may be agreed upon between the several nations and tribes aforesaid, or each of them, with the United States, with a view to such and adjustment, upon the basis of justice and equity, as may, with the consent of such nations or tribes of Indians, so far as may be necessary, be requisite and suitable to enable the ultimate creation of a State or States of the Union which shall embrace the lands within said India[n] Territory.
§ 16,
power to negotiate any and all such agreements as ... shall be found requisite and suitable to such an arrangement of the rights and interests and affairs of such nations, tribes, bands, or Indians, or any of them, to enable the ultimate creation of a Territory of the United States with a view to the admission of the same as a state in the Union.
Id. The 1893 Act established the Dawes Commission to commence negotiations; it did not disestablish the Creek Reservation.
2) Act of June 10, 1896, ch. 398, 29 Stat. 321 (“1896 Act”)
The State next relies on an 1896 appropriations law in which Congress again provided money to fulfill treaty obligations with the Creek Nation. 29 Stat. 326-27. The 1896 Act declared it “the duty of the United States to establish a government in the Indian Territory” for the purpose of “rectifying] the many inequalities and discriminations” in the Territory and “affording] needful protection to the lives and property of all citizens and residents thereof.”
3) Act of June 7, 1897, ch. 3, 30 Stat. 62 (“1897 Act”)
The State’s third statute is an 1897 appropriations statute in which Congress again approved funds to satisfy obligations arising from treaties with the Creek Nar tion. See
4) “Curtis Act,” ch. 517, 30 Stat. 495 (June 28, 1898)
In 1898, Congress imposed new limitations on the powers of tribal governments in the Indian Territory. Under the Curtis Act, tribal courts would be abolished within the year. § 28,
5) “Original Allotment Agreement,” ch. 676, 31 Stat. 861 (March 1, 1901)
The Creek Nation reached a negotiated agreement with the federal government for the allotment of tribal lands, and Congress passed it into law in 1901. The Original Agreement, supplemented by another agreement we discuss below, specified that its terms would control over conflicting federal statutes and treaty provisions, but it “in no wise affect[ed]” treaty provisions consistent with the Agreement. ¶¶ 41, 44,
The Agreement’s central purpose was to facilitate a transfer of title from the Creek Nation generally to its members individually. It provided that “[a]ll lands belonging to the Creek tribe,” except for town sites and lands reserved for public purposes, should be appraised and allotted “among the citizens of the tribe.” ¶¶ 2-3,
Creek citizens would receive an allotment of 160 acres valued at $6.50 per acre. ¶ 3,
The assignment of allotments was not random. Creek citizens who had built improvements or possessed particular lands could select those lands. See ¶¶ 3, 5-6,
’The Tribe’s principal chief was assigned the task of transferring title from the Tribe to the individual allottees. ¶ 23,
The Secretary of the Interior was supposed to approve the conveyances, and this approval would serve “as a relinquishment” to the Creek citizen “of all the right, title, and interest of the United States in and to the lands embraced in [the] deed.” Id.
b)Town sites
The Agreement excluded “town sites” from allotment. ¶¶ 2, 24(a),
Some town sites were not available for purchase. The Agreement instructed town surveyors to set aside lands for cemeteries, ¶ 18,
c)Lands reserved for tribal purposes
In addition to town sites, the Agreement provided certain other lands would be “reserved from the general allotment” scheme. ¶ 24, 31 Stat at 868. Most of the reserved lands were for tribal .purposes: Creek schools and orphan homes, ¶ 24(c)-(l),
d)Future governance
The Agreement contemplated roles for both the Tribe and the federal government in the post-allotment governance of the Creek Nation. It recognized Creek jurisdiction as continuing but also limited and temporary. It also provided for ongoing federal regulation and defined federal responsibilities by reference to the Creek Nation’s borders.
A continuing role for the tribal government was apparent iii a provision recognizing Creek legislative authority over both unallotted, tribal lands and allotted lands.. ¶ 42,
Under the Agreement, the Tribe continued to exercise authority over its finances: “No funds belonging to said tribe shall hereinafter be used or paid out for any purposes by any officer of the United States without consent of the tribe, expressly given through its national council, except as herein provided.” ¶ 33,
Despite these recognitions of continuing Creek governmental authority, the Agreement contemplated this authority would be temporary. It said the tribal government would not continue past March 4, 1906, “subject to such further legislation as Congress may deem proper.” ¶ 46,
In addition to providing a limited role for tribal government, the Agreement assigned powers and responsibilities to the United States, many of which were expressly tied to the Creek Nation’s territorial boundaries. For example, the Secretary was authorized to collect a grazing tax when cattle were brought “into the Creek Nation” and grazed on unallotted lands. ¶ 37,
To summarize, the Original Agreement shifted communal Creek land into individual allotments and provided for dissolution of the tribal government in the future. It also reserved from allotment lands for tribal purposes and repeatedly recognized the continuing existence of the Creek Nation’s borders.
6) “Supplemental Allotment Agreement,” ch. 1323, 32 Stat. 500 (June 30, 1902)
The 1902 Supplemental Allotment Agreement clarified the Original Agreement
The Supplemental Agreement provided that Arkansas law, not Creek law, would govern inheritance but said “only citizens of the Creek Nation, male and female, and their Creek descendants shall inherit lands of the Creek Nation.” ¶ 6,
Anti-encumbrance and alienation provisions were reaffirmed and set to run from the date of the Supplemental Agreement. ¶ 16,
The Supplemental Agreement left in place the planned dissolution of the tribal government. It required the Secretary, following dissolution of the tribal government, to pay the Tribe’s remaining funds to the citizens of the Creek Nation. ¶ 14,
Overall, the Supplemental Agreement continued the policies embodied in the Original Agreement. It did not address the Creek Reservation’s borders except to recognize their existence.
7) “Five Tribes Act,” ch. 1876, 34 Stat. 137, April 26, 1906
The State relies on two more statutes, both from 1906.
The Five Tribes Act gave new authority to the President and Secretary of the Interior; The President received authority to appoint a tribal citizen as principal chief when the principal 'chief died, bécame disabled, or refused or neglected to perform his duties. § 6,
The Five Tribes Act continued many of the restrictions on allotted lands and amended others. Congress continued the Original Agreement’s provisions for the equalization of Creek allotments. § 2,
The Five Tribes Act provided for the future distribution of tribal property to Creek citizens. It abolished tribal taxes and instructed the Secretary to wind up claims against the Tribe following the dissolution, of the tribal government. § 11,
In a section' labeled “Tribal lands to be held in trust,” the Act provided that, upon dissolution of the Five-Tribes, tribal lands “shall not become public lands nor property of the United States, but shall be held in trust by the United States for the use and benefit” of the-Tribes’ members and their heirs. § 27,
8) “Oklahoma Enabling Act,” ch. 3335, 34 Stat. 267 (June 16, 1906)
In the Oklahoma Enabling Act, the final statute the State relies on, Congress did not dissolve the Creek government, but it granted permission to the inhabitants of both the Territory of Oklahoma and the Indian Territory to adopt a constitution and seek admittance into the Union as the State of Oklahoma. § 1,
to limit or impair the rights of person or property pertaining to the Indians of said Territories (so long as such rights shall remain unextinguished) or to limit or affect the authority of the Government of the United States to make any law or regulation respecting such Indians, their lands, property, or other rights by treaties, agreement, law, or otherwise ....
Id. Further, Congress required the people of the territories to
forever disclaim all right and title in or to any unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian, tribe, or nation; and that until the title to any such public land shall have been extinguished -by the United States, the same shall be and remain-subject 'to the jurisdiction, disposal, and control of the United States.
§ 3,
Oklahoma was awarded five seats in the House of Representatives. § 6,
The United States granted Oklahoma certain townships for the State’s school system but withheld “any lands embraced in Indian, military, or other reservations of any character” and specified that “land owned by Indian tribes or individual members of any tribe” were excluded “until the reservation shall have been extinguished and such lands be restored to and become a part of the public domain,” § 7,
Upon Oklahoma’s admission as a State, the territorial laws in force within the Territory of Oklahoma would take effect statewide, and all applicable federal laws would
The Oklahoma Enabling Act, as this court has already said, does not “contain express termination language.” Osage Nation,
* * * *
The foregoing statutes show the Creek Nation accepted an allotment scheme that retained “surplus” lands for tribal citizens, and Congress established the State of Oklahoma. We now consider further whether, as the State insists, these laws also disestablished the Creek Reservation.
ii. Analysis
None of these statutes disestаblished the Creek Reservation. The State’s case for termination of the Creek Reservation thus falters at “the first and most important step.” Parker,
1) No hallmarks of disestablishment or diminishment
Congress never expressly terminated the Creek Reservation in any of the statutes, nor did it use the kind of language recognized by the Supreme Court as evidencing disestablishment. It has long been clear “the Congresses that passed the surplus land acts” were hostile to the reservation system; indeed they “anticipated [its] imminent demise” and “passed the acts partially to facilitate the process,” but Solem prevents courts from “extrapolating]” this general congressional expectation into “a specific congressional purpose” with respect to a given reservation.
We have not identified termination language in any of the statutes the State cites. Indeed, the State concedes that not one of the eight statutes contains particular language that disestablished the Creek Reservation.
The absence of such language is notable because Congress is fully capable of stating its intention to disestablish or dimmish a reservation, as the following examples illustrate:
• “[T]he Smith River reservation is hereby discontinued.” Act of July 27, 1868, ch. 248, 15 Stat. 198, 221; see Mattz,412 U.S. at 504 n.22,93 S.Ct. 2245 (citing statute as an example of “clear language of express termination”).
• “That subject to ... allotment ... a [legislatively defined] portion of theColville Indian Reservation ... is hereby, vacated and restored to the public domain ..,. ” Act of July 1, 1892, ch. 140, § 1, 27 Stat. 62, 62-63; see Mattz, 412 U.S. at 504 n.22,93 S.Ct. 2245 (citing as example of “clear language of express termination”); Seymour,368 U.S. at 354 ,82 S.Ct. 424 (discussing as example of diminishment language).
• “Subject to the allotment of land ... and for the considerations hereinafter mentioned ... [the] Comanche, Kiowa, and Apache Indians hereby cede, convey, transfer, relinquish, and surrender, forever and absolutely, without any reservation whatever, express or implied, all their claim, title, and interest, of every kind and character, in and to the lands embraced in the following-described tract of country in the Indian Territory .... ” Act of June 6, 1900, ch. 813, art. 1, 31 Stat. 672, 676-77; see Tooisgah v. United States,186 F.2d 93 , 97 (10th Cir. 1950) (discussing statute as example of language “disestablishing] the organized reservation”).
• “[A]ll the unallotted lands within said reservation shall be restored to the public domain.” Act of May 27, 1902, ch. 888, 32 Stat. 245, 263; see Hagen,510 U.S. at 412 ,114 S.Ct. 958 (discussing statute and explaining that “Congress considered Indian reservations as separate from the public domain”).
• “[T]he reservation lines of the said Ponca and Otoe and Missouria Indian reservations be, and the same are hereby, abolished.” Act of April 21, 1904, ch. 1409, 33 Stat. 189, 218; see Mattz,412 U.S. at 504 n.22,93 S.Ct. 2245 (citing as example of “clear language of express termination”).
• “The said Indians belonging on the Shoshone or Wind River Reservation, Wyoming, for the consideration hereinafter named, do hereby cede, grant, and relinquish to the United States, all right, title, and interest which they may have to all thе lands embraced within the said reservation, except the lands within and bounded by the following lines .... ” Act of March 3, 1905, ch. 1452, art. 1, 33 Stat. 1016, 1016; see Wyoming,849 F.3d at 870 (calling this language “precisely suited to diminishment” (quotations omitted)).60
Indeed, Congress has had no difficulty addressing the boundaries of the Creek' Reservation, and, as the following treaties show, Congress used clear language on these occasions:
• “The Creek Nation of Indians cede to the United States all the land belonging to the said Nation in the State of Georgia, and lying on the east side of the middle of the Chatahoochie river, And, also, another tract of land lying within the said State, and bounded asfollows .... ” 1826 Treaty, art. 2, 7 Stat. at 286-87 .
• “The Creek tribe of Indians cede to the United States all their land, East of the Mississippi river.” 1832 Treaty, art,. 1,7 Stat. at 366 ,
• “The United States hereby agree ... that the Muskogee or Creek country west of the Mississippi, shall be embraced within the following boundaries ....” 1833 Treaty, art. 2,7 Stat. at 418 .
• “The Creek Nation doth hereby grant, cede, and convey to the Seminole Indians, the tract of country included within the following boundaries 1856 Treaty, art. 1,11 Stat. at 699 ; see also id, at art. 2,11 Stat. at 700 (“The following shall constitute and remain the boundaries of the Creek country .... ”); id. at arts. 5-6,11 Stat. at 700-02 (providing for release of Creek claims to specified lands in consideration of $1 million paid by United States).
• “[T]he Creeks hereby cede and convey to the United States ... the west half of their entire domain, to be divided by a line running north and south; the eastern half- of said Creek lands, being retained by them, shall, except as herein otherwise stipulated, be forever set apart as a home for said Creek Nation; and in consideration of said cession of -the west half of their lands ... the United States agree to pay the sum of ... nine-.hundred and seventy-five thousand one hundred and sixty-’eight dollars 1866 Treaty, art. 3,14 Stat. at 786 ; see also id. at art. 9,14 Stat. at 788 (providing for the construction of buildings “in the reduced Creek reservation”).
The Supreme Court has said that when earlier treaties contained unequivocal language of disestablishment or diminishment and a later enactment “speaks in much different terms,” “[t]he change in language ... undermines [the] claim that Congress intended to do the same with the reservation’s boundaries in [the later statute] as it did in [the earlier treaties].” Parker,
Although the State contends the cumulative force of the eight statutes disestablished the Creek Reservation, Congress again discussed Creek boundaries in direct terms immediately following passage of the State’s final statute. The Oklahoma Enabling Act was passed on June 16, 1906.
2) Signs Congress continued to recognize the Reservation
The eight statutes not only lack textual evidence that Congress disestablished the Creek Reservation, the Original Agreement contains language recognizing the existence of the Creek Nation’s borders. See, e.g., ¶ 10,
The Original Agreement also reserved lands for tribal purposes. See ¶ 24,
And instead of making a sum-certain payment to the Creek Nation for all—or even a portion of—-its land, the Agreement provided the Tribe would receive an uncertain amount of revenue based, on future sales to non-Indian settlers of surveyed town lots. See ¶¶ 11-15,
Thus, not only do the State’s statutes lack any language' showing disestablishment, they show Congress’s continued recognition of the Reservation’s boundaries.
3) The'State’s title and governance arguments
The State’s arguments for disestablishment based on Congress’s general goals of extinguishing tribal title and establishing a new state government fail. Relying on its first statute—the 1893 appropriations law in which Congress announced the commencement of negotiations—the State argues Congress intended to disestablish the Greek Reservation because Congress aimed for (1) the “extinguishment” of tribal title and (2) the “ultimate creation” of
a) Title
Whether a reservation has been disestablished or diminished depends on whether its boundaries were erased or constricted, not on who owns title to land inside the lines. “This distinction between a property’s title and a reservation’s territory is important.” Shawnee Tribe,
The allotment of Creek lands—the transfer of title from the Tribe to its members—does not mean Congress disestablished the Creek Reservation. Allotment can be “completely consistent with continued reservation status.” Mattz,
b) Governance
Neither do changes in governance over the Creek Reservation show that Congress disestablished the Reservation. The State argues the erosion of Creek governmental authority and the creation of Oklahoma demonstrate Congress disestablished the Creek Reservation. For three reasons, we disagree.
Second, even if the State could show that dissolution of a tribal government is relevant to disestablishing a reservation, that would not mean the Creek Reservation has been disestablished. This is so because Congress never dissolved the Creek government. Even when Congress contemplated the future dissolution of the Creek government, it continued to recognize the Tribe’s governmental authority within the Reservation’s boundaries. See, e.g., Original Agreement, ¶ 42,
Although Congress at one time may have envisioned the termination of the Creek Nation and complete divestiture of its territorial sovereignty, the legislation enacted in 1906 reveals that Congress decided not to implement that goal, and instead explicitly perpetuated the Creek Nation and recognized its continuing legislative authority. Congress subsequently repudiated its earlier policies of termination and enacted legislation designed to restore governmental powers to the Oklahoma tribes.
Indian Country, U.S.A.,
Third, Oklahoma’s admission into the Union is compatible with the Creek Reservation’s continuation. States and reservations co-exist throughout the country. See, e.g., Parker,
In sum, the eight statutes do not, individually or collectively, show that Congress disestablished the Creek Reservation. They lack any of the “hallmarks of diminishment,” Parker,
b. Step Two: Contemporary Historical Evidence
438] When the statutory text at step one does not -reveal that Congress has disestablished or diminished a reservation, such, a finding requires “unambiguous evidence”
At step two of the Solem analysis, courts consider how -pertinent legislation was understood to affect the reservation when it was enacted. Evidence of this contemporary understanding may include the negotiations between the tribe and the federal government, congressional floor debates, and committee reports about the relevant statutes. See Solem,
We have relied on step-two evidence to find disestablishment. In Osage Nation, we concluded Congress had disestablished the Osage Reservation, despite an absence of clear textual evidence, because we found, “the legislative .history and the negotiation process..[made] clear .that all the parties at the table understood that the Osage reservation would be disestablished by the Osage Allotment Act.”
The State argues the contemporary historical evidence shows Congress intended to disestablish the Creek Reservation. Mr. Murphy and the Creek Nation contend there is no unequivocal historical evidence of disestablishment. Instead, they argue the evidence supports continued recognition of the Creek Nation’s borders during the relevant period. The mixed evidence we discuss below falls short of “unequivocally reveal[ing]” that Congress disestablished the Creek Reservation. Parker,
i. The State’s evidence
The. State’s step-two evidence comes from the years preceding the 1901 Original Allotment Agreement. On their own, pre-1901 understandings do little to advance the analysis because the State “does not dispute that the reservation was intact in 1900.” Aplee. Br. at 75 n.25. But we understand the State to argue that Congress had a pre-1900 intention to disestablish the Creek Reservation and that this intention carried through later legislation. See Wyoming,
The State largely relies on court decisions discussing Creek history as opposed to primary sources from the relevant time
1) 1892 Senate debate
The State cites Hayes for its earliest historical evidence of Congress’s intent to disestablish the Creek Reservation. Hayes, a 1927 decision by the Eighth Circuit, discussed an 1892 Senate floor debate. in which Senators Jones and Platt opposed a joint resolution proposing to create a commission to negotiate with the Five Civilized Tribes to induce them to allot their lands. See
Senator Platt thought the “real question” was whether the' country could “endure five separate, independent, sovereign, and almost wholly foreign governments within the boundaries of the United States.” Id. - at 100. Although acknowledging “[t]he United States conveyed to each of the five civilized tribes their lands in fee simple, and agreed that they should never be included in any Territorial or State government, so.long as the tribes continued to exist and occupy the lands,” he contended things had changed. Id. The “original idea” had been “that white people were not to dwell in that country,” but he thought the influx of white settlers into the Indian Territory showed the Tribes no longer wished to remain isolated. Id. The changing demographic situation required new governing structures. Id. at 101-02. Elimination of the tribal governments, he argued, would eventually have to happen with or without the Tribes’ consent. Id. at 102. Senator Platt also pointed out the Committee on Indian Affairs was drafting a bill to create a commission “much wider in scope than is contained in the joint resolution.” Id.
The joint resolution “died upon the table without reference to committee,” Hayes,
This legislative history of a failed resolution falls far short of what would permit us to find disestablishment. “[Isolated statements” from a few legislators do not show that Congress disestablished a reservation, Parker,
2) 1894 Senate committee report
Next, the State looks to an 1894 report from a Senate select committee on the Five Civilized Tribes discussed in Stephens, an 1899 Supreme Court decision involving the constitutionality of laws regulating
It must be assumed ... that the Indians themselves have determined to abandon the policy of exclusiveness, and to freely admit white people within the Indian Territory, for it cannot be possible that they can intend to demand the removal of the white people either by the Government of the United States or their own. They must have realized that when their policy of maintaining an Indian community isolated from the whites was abandoned for a time it was abandoned forever.
Id. at 7.
The committee report also commented on the state of land ownership and governance within the Indian Territory. Although the Tribes held title for the benefit of all their citizens, the report found that some tribal citizens, “frequently not Indians by blood but by intermarriage,” had managed to take effective control over large swaths of the best agricultural land and earn private income by renting out sections of the land. Id. at 11-12. The report observed that this development disadvantaged many tribal citizens and the United States might have to intervene to ensure that tribal holdings were administered for the benefit of all a Tribe’s members. Id. The report viewed the Tribes in the Indian Territory as incapable of reforming the situation, labelling “their system of government” as “not only non-American” but “radically wrong.” Id, at 12. “There can be no modification of the system. It can not be reformed. It must be abandoned and a better one substituted.” Id. Convinced change was needed, but “not car[ing] to ... suggest what ... will be the proper step for Congress to take,” the committee simply noted that the Dawes Commission was hard at work, and said it would “wait and see.” Id. at 12-13.
This report describing 1890s conditions does not address whether Congress understood its later reforms would disestablish the Creek Reservation, And again, the State’s contextual evidence concerns title and governance and does not speak to the reservation question.
3) Other sources
The State references an 1895 report from the Dawes Commission to Congress, which stated that the “so-called governments” in the Indian Territory were “wholly corrupt, irresponsible, and unworthy to be longer trusted” with the lives and property of Indian citizens. Dep’t of the Interior, H.R. Doc. No. 54-5, at XCV (1st Sess. 1895). The Commission predicted the situation would not “remain peaceabl[e]” if the white population were excluded from the governance arrangement and stressed the United States was “bound by constitutional obligations to see to it that government everywhere within its jurisdiction rests on the consent of the governed.” Id. atXC.
The State argues an 1897 report by the Secretary of the Interior similarly found that a uniform system of government would have to be provided for the Indian Territory. The State also observes that the Creek Nation and the Dawes Commission negotiated agreements that were rejected by either the Tribe or Congress before both sides agreed to the Original Allotment Agreement, but the State does not cite any particular provisions in these earlier, proposed deals to argue they reveal a contemporary understanding that Congress
These materials fail to show that Congress intended to disestablish the Creek Reservation by enacting any of the eight statutes.
ii. Mr, Murphy’s and the Creek Nation’s evidence
Mr. Murphy contends there is no unequivocal historical evidence supporting disestablishment. To the contrary, he and the Tribe cite sources from both before and after the 1901 Original Agreement to argue the Creek Nation’s borders remain intact.
1)1894 Dawes Commission records
The Creek Nation points to records from the Dawes Commission’s early years. Its 1894 report to Congress discussed the Commission’s negotiations and explained the Tribes had refused to discuss changes “in respect either to their form of government or the holdings of their domains.” Dep’t of the Interior, H.R. Doc. No. 53-1, at LIX-LX (3d Sess. 1894). The Commission explained to Congress it had proposed allotment after “abandoning] all idea of purchasing” tribal lands because “the Indians would not, under any circumstances, agree to cede any portion of their lands to the Government.” Id. at LVX. The same report included a-copy of the terms the Commission had submitted to the Creek Nation—the propositions “upon which [the Commission] proposed to negotiate.” Id. at LX-LXI. The eighth proposition stated that, if an agreement was reached, Congress would be allowed to form a territorial government “over the territory of the Creek Nation.” Id.
2)1895 Dawes letter
Next, the Tribe points to an 1895 letter from Chairman Dawes to the Creek Nation’s principal chief explaining:
[T]he Commission have not come here to interfere at all with the administration of public affairs in these nations, or to undertake to deprive any of your people of their just rights. On the other hand, it is their purpose and desire, and the only authority they have, to confer with you upon lines that will result in promoting the highest good of your people and securing to each and all of them their just rights under the treaty obligations which exist between the United States and your nation.
H.R. Doc. No. 54-5, at LXXXI. These treaty obligations, the Creek Nation argues, included the 1866 treaty’s recognition of the Tribe’s territorial integrity.
3)1900 Attorney General opinion
The Creek Nation also relies on a 1900 Attorney General opinion, which addressed the “conditions now existing in the Indian country occupied by the Five Civilized Tribes” to argue the 1898 Curtis Act did not affect the Reservation’s boundaries. 23 U.S. Op. Att’y Gen. 214, 215 (1900), available at
the authority and duty ... to remove all persons of the classes forbidden by treaty or law, who are there without Indian permit' or license; to close all business which requires a permit or license and is being carried on there without one; and to remo[v]e all cattle being pastured on the public land without Indian permit or license, where such license or permit is required; and this is not intended as an enumeration or summary of all the powers or duties of your Department in this" direction.
Id. at 220; see also Maxey v. Wright,
4) Post-allotment evidence
Mr. Murphy and the Tribe argue contemporary historical evidence shows an understanding that the Creek Nation’s borders continued after allotment. In .its report to Congress in 1900, the Dawes Commission reflected on what its negotiations had—and had not—achieved:
Had it been possible to secure from the Five Tribes a cession to the United States of the entire territory at a given price, the tribes to receive its equivalent in value, preferably a stipulated amount of the'land thus ceded, equalizing values with cash, the duties of the commission would have been immeasurably simplified, and the Government would have been saved, incalculable expense. ... When an understanding is had, however, of the great difficulties which have been experienced in inducing the tribes to accept allotment ... it will be seen how impossible it would have been to- have adopted a more radical scheme of tribal extinguishment, no matter how simple its evolutions.
Dep’t of the Interior, H.R. Doc. No. 56-5, at 9 (2d Sess. 1900).
Mr. Murphy points out that, in the years immediately following passage of the allotment agreements, the regional federal circuit court with jurisdiction over the Indian Territory continued to recognize the Creek Nation’s borders. In Buster, federal agents enforced the Creek’Nation’s licensing fee on trade “within its borders” by closing the businesses of non-Indians who had refused to pay.
The ultimate conclusion of the whole matter is that purchasers of lots in town sites in towns or cities within the original limits of the Creek Nation, who are in lawful possession of their lots, are still subject to the laws of that nation prescribing permit taxes for the exercise by noncitizens of the privilege of conducting business in those towns, and that the Secretary of the Interior and his subordinatesmay lawfully enforce those laws by closing the business of those who violate them, and thereby preventing the continuance of that violation.
Id. at 958.
iii. Analysis
The State’s evidence at step two largely speaks to changes (or anticipated changes) in title and governance. It does not show that Congress understood it was disestablishing the Creek Reservation. Although Mr. Murphy and the Creek Nation present counter evidence showing a continuing understanding that the Creek Reservation’s borders remained intact, we need not settle which side has the stronger argument about the contemporary historical evidence. Under Solem, our inquiry is simpler. Because no clear textual evidence shows Congress disestablished the Creek Reservation at step one, it is enough for us to say at step two that the “historical evidence in no way ‘unequivocally reveals] a widely held, contemporaneous understanding that the affected reservation would shrink as a result of the proposed legislation.’ ” Parker,
None of the step-two evidence, whether viewed in isolation or in concert, shows unmistakable congressional'intent to disestablish the Creek Reservation’. The' State’s historical evidence supports the notion that Congress intended to institute a new government in the Indian Territory and to shift Indian land ownership from communal holdings to individual allotments. But this does not show, unequivocally or otherwise, that Congress had erased or even reduced the Creek Reservation’s boundaries. Even if the State’s evidence offers some suggestion of a contemporary understanding that the Creek Reservation was disestablished, Mr. Murphy and the Creek Nation have marshаlled evidence showing an understanding that the Reservation’s borders continued. The step-two evidence is dt most debatable, and we need not parse it further because ambiguous evidence cannot overcome‘the missing statutory text at step one. See Hagen,
After the first two steps, the statutory-text analysis fails to show that Congress disestablished or diminished the Creek Reservation, and there is no unequivocal evidence of a contemporaneous understanding that the legislation terminated or redrew the Creek Nation’s borders at step two. We turn to step three.
c. Step Three: Later History
We consider at step three “federal and local authorities’ approaches to the lands in question and ... the area’s subsequent demographic history.” Shawnee Tribe,
Solem provides that, as compared to steps one and two, step-three evidence is considered “[t]o a lesser extent.”
We proceed to discuss (i) the treatment of the area and (ii) its demographic history. The conflicting step-three evidence discussed below does not allow us to say that Congress disestablished the Creek Reservation.
i. Treatment of the area
1) Congress
Both sides cite evidence to show what later Congresses understood about the Creek Reservation’s existence. We start with the earliest examples.
The Creek Nation cites the following statutes in arguing Congress continued to recognize the Reservation’s boundaries following passage of the allotment agreements: Act of April 21, 1904, ch. 1402, 33 Stat. 189, 204 (granting Secretary of the. Interior authority to sell “the residue of lands in the Creek Nation”), repealed by Act of March 3, 1905, ch. 1479, 33 Stat. 1048, 1072 (revoking Secretary’s authority); Act of March 3, 1909, ch. 263, 35 Stat. 781, 805 (providing for “equalization of allotments in the Creek Nation”); and Act of May 25, 1918, ch. 86, 40 Stat. 561, 581 (appropriating money for “the common schools in the Cherokee, Creek, Choctaw, Chickasaw, and Seminole Nations”). We find these laws carry some weight because, within step three, Solem emphasizes the years “immediately following” passage of the relevant laws. See
The Creek Nation cites other statutes showing that reservations continued to exist in Oklahoma, though they do not speak directly to the Creek Reservation. See Act of May 29, 1924, ch. 210, 43 Stat. 244, 244 (regulating oil and gas leases on “unallotted land on Indian reservations other than lands of the Five Civilized Tribes and the Osage Reservation”); Act of June 26, 1936, ch. 831, 49 Stat. 1967, 1967 (authorizing Secretary of the Interior to acquire land and water rights “within or without existing Indian reservations” in Oklahoma).
The State points to more recent statutes in which Congress defined “reservation” to include, among other things, “former Indian
The State also cites two congressional committee reports. First, a 1935 report by a Senate committee said that in Oklahoma, as the result of allotment, “Indian reservations as such have ceased to exist.” S. Rep. No. 74-1232, at 6 (1935). But as the Creek Nation argues, the legislation associated with the report, the Oklahoma Indian Welfare Act, referenced “existing Indian reservations.” See § 1,
Altogether, these conflicting signals from later Congresses do not overcome the lack of evidence at steps one and two. Given “the textual and contemporaneous evidence” in this case, “confusion in the subsequent legislative record does nothing to alter our conclusion” that the Creek Reservation’s borders still exist. Hagen,
2) Executive
The parties’ evidence from the executive' branch also is mixed. The Creek Nation contends that the Bureau of Indian Affairs continued to regard the Reservation as intact in the early years of the twentieth century. The BIA’s annual reports following Creek allotment and Oklahoma statehood consistently included the Creek Nation in tables summarizing reservation statistics. See Creek Nation Br., App’x B. Similarly, the Department continued to include the Creek Nation on its “Maps Showing Indian Reservations within the Limits of the United States.” See id. App’x C (maps from 1900-14).
But the State argues a later BIA regulation concerning land acquisition policies shows that the BIA concluded the Creek Reservation was disestablished because the regulation defined “Indian reservation” to mean: '
that area of land over which the tribe is recognized by the United States as having governmental jurisdiction, except that, in the State of Oklahoma or where there has been a final judicial determination that a reservation has been disestablished or diminished, Indian reservation means that area of land constituting the; former reservation of .the tribe as defined by the Secretary.
25 C.F.R. § 151.2(f) (2016).
The Supreme Court has said that government officials’ later treatment of the disputed area “has ‘limited interpretive
3) Federal courts
Both sides point to passing references in federal court decisions across the decades that reveal conflicting understandings of the Creek Reservation’s status.
The State invokes a handful of twentieth-century cases “indicating], in dicta, a widely held belief that the reservation was disestablished.” Aplee. Br. at 78-79 (citing McClanahan v. State Tax Comm’n of Ariz.,
The Creek Nation argues that “fflederal courts in the decades after allotment sometimes subscribed to [the] erroneous assumption” that the Creek Reservation had been disestablished based- on a mistaken belief that the tribal government had been dissolved. Creek Nation Br. at 32. For example, in Turner v. United States, the Court of Claims remarked—incorrectly— that the “Creek Nation of Indians kept up their tribal organization ... until the year 1906, at which date the tribal government was terminated by the general provisions of [the Original Allotment Agreement].”
Scattered dicta in later court decisions do not justify a conclusion that Congress disestablished the Creek Reservation. We have undertaken the three-part Solem analysis because no Supreme Court or Tenth Circuit case has addressed the question. See Indian Country, U.S.A.,
4) Oklahoma
The Creek Nation acknowledges the State “asserts considerable governmental authority, over the Creek reservation.” Creek Nation Br. at 37. Oklahoma’s, general exercise of authority over the former Indian Territory, has included criminal prosecutions of Indians, but we agree with Mr. Murphy and the Creek Nation that the exercise of State authority has not disestablished the Creek Reservation.
In Ex parte Nowabbi, Oklahoma convicted a member of the Choctaw Tribe in state court of murdering another tribal member on the victim’s allotment.
Since then, however, the state courts have changed course. In 1989, the OCCA concluded Nowabbi had erred in holding Oklahoma had jurisdiction to prosecute an Indian defendant for a murder committed on an Indian allotment. See Klindt,
The State has not provided us with other examples of Oklahoma prosecuting Indians for murders committed within the Creek Reservation,
[The State argues] that since 1830 the Choctaws residing in Mississippi have become fully assimilated into the political and social life of the State, and that the Federal Government long ago abandoned its supervisory authority over these Indians. Because of this abandonment, and the long lapse in the federal recognition of a tribal organization in Mississippi, the power given Congress “to regulate Commerce ... with the Indian Tribes,” Const. Art. I, § 8, cl. 3, cannot provide a basis for federal jurisdiction. To recognize the Choctaws in Mississippi as Indians over whom special federal power may be exercised would be anomalous and arbitrary.
We assume for purposes of argument, as does the United States, that there have been times when Mississippi’s jurisdiction over the Choctaws and their lands went unchallenged. But ... we do not agree that Congress and the Executive Branch have less power to deal with the affairs of the Mississippi Choctaws than with the affairs of other Indian groups. Neither the fact that the Choctaws in Mississippi are merely a remnant of a larger group of Indians, long ago removed from Mississippi, nor the fact that federal supervision over them has not been continuous, destroys the federal power to deal with them.
Id. at 652-53,
Oklahoma’s exercise of jurisdiction within the Creek Reservation is not a proper basis for us to conclude that Congress disestablished the Reservation.
5) Creek Nation
The Creek Nation has maintained a significant and continuous presence within the Reservation. The tribal government, which was never extinguished, saw many of its powers restored when Congress passed OIWA in 1986. See Indian Country, U.S.A.,
ii. Demographics
There is a large, non-Indian population within the Creek Reservation. The State argues that, even “[b]y 1906, four-fifths of the persons living in Indian Territory were non-Indian.” Aplee. Br. at 86 (citing H.R. Rep. No. 59-496, at 10 (1906)). In 2000, the year Mr. Murphy was convicted in McIntosh County,
Mr. Murphy argues this demographic evidence is unhelpful because “[t]he increase of non-Indian intruders into Indian Territory was occurring before the allotment acts and Enabling Act were passed,” and even before allotment and Oklahoma statehood, “the [Creek] Nation’s citizens were the minority within their own territory.” Aplt. Br. at 65-66. Although many non-Indians have come to live in the area, the Tribe points out that approximately half of its members continue to live within the 1866 borders of the Reservation.
The demographic evidence does not overcome the absence of statutory text disestablishing the Creek' Reservation. See Parker,
iii. Step-three concluding comment
When steps one and two “fail to provide substantial and compelling evidence of a congressional intention to diminish Indian lands,” courts mqst accord
IV. CONCLUSION
Applying Solem, we conclude Congress has not disestablished the Creek Reservation. Consequently, the crime in this case occurred in Indian country as defined in 18 U.S.C. § 1151(a). Because Mr, Murphy is an Indian and because the crime occurred in Indian country, the federal court has exclusive jurisdiction. Oklahoma lacked jurisdiction. See 18 U.S.C. § 1153(a).
Mr. Murphy’s state conviction and death sentence are thus invalid. Thé OCCA erred by concluding the state courts had jurisdiction, and the district court erred by concluding the OCCA’s decision was not contrary to clearly established féderal law. We therefore reverse the district court’s judgment and- remand with instructions to grant Mr. Murphy’s application for a writ of habeas corpus under 28 U.S.C. § 2254. The decision whether to prosecute Mr. Murphy in federal court rests with the United States. Decisions about the borders of the Creek Reservation remain with Congress.
Notes
. Mr. Murphy raises eight issues in this appeal. Because we resolve his first issue by concluding the state courts lacked jurisdiction over this case, we do not address his other seven issues.
. See 28 U.S.C. § 2254(e)(1) (providing federal habeas court must presume state court’s factual determinations are correct); see also Al-Yousif v. Trani,
. On April 21, 2003, the U.S. Supreme Court denied Mr. Murphy’s petition for a writ of certiorari. See Murphy v. Oklahoma;
. The same day he filed his amended application, Mr. Murphy' launched a short-lived appeal. He sought our review of the district court’s order denying his request to stay the federal proceedings while he pursued his unexhausted claims in state court. Another panel of this court dismissed the appeal for lack of jurisdiction. See Murphy v. Mullin, No. 04-7094 (10th Cir. Dec. 16, 2004).
.In Oklahoma, "issues of subject matter jurisdiction are never waived and can therefore be raised on a collateral appeal.” Wallace v. State,
. The OCCA ordered that the hearing answer the following six-questions:
(1) Where exactly did the crime occur?
(2) Who "owns” title to the property upon which the crime occurred?
(3) If some or all of the crime occurred on an easement, how does that factor into the ownership question?
(4) How much of the crime occurred, if any, on an easement?
(5) Did the crime occur in "Indian County,” as defined by 18 U.S.C.- § 1151?
(6) Is jurisdiction over the crime exclusively federal?
. “Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder ... within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” 18 U.S.C. § 1153(a).
. In this appeal, however, he argues the location of the crime qualifies under the reservation clause of subsection (a) and the allotment clause of subsection (c). Because we agree with him that the crime occurred on an Indian reservation, we do not reach his allotment argument.
. On the reservation question that concerns us here, Mr. Murphy argued:
[T]he homicide occurred within the boundaries of the Creek Nation, which qualifies as Indian county because of its status as a reservation under federal jurisdiction. Unlike some other tribes, the Creek treaty lands were not disestablished or diminished by the acts of allotment and other federal legislation adopted in the early 20th century, As of 1999, the entirety of the historic Creek Nation lands thus remained Indian country, regardless of non-Indian ownership of particular tracts within those boundaries.
Def. Tr. Bit at 12 (filed Nov. 16, 2004), State Post-Conviction Record, OCCA Case No. PCD-2004-321, Vol. 1 at 66 (citing Solem v. Bartlett,
. We discuss the OCCA’s decision regarding Mr. Murphy’s allotment theory under § 1151(c) because it forms part of the procedural history of this case, but we offer no comment on the merits of the OCCA’s decision on this front. Our opinion is limited to the reservation question under § 1151 (a).
. The OCCA also rejected the dependent Indian community theory under § 1151(b). See
. Mr. Murphy petitioned the U.S. Supreme Court for certiorari on two aspects of the OCCA’s jurisdictional decision: (1) whether Oklahoma lacked jurisdiction because the crime occurred on a restricted Indian allotment under § 1151(c) and (2) whether Oklahoma lacked jurisdiction because the crime occurred within the limits of an Indian reservation under § 1151(a). The Supreme Court called for the views of the United States, and the Solicitor General filed a brief arguing the Court should deny Mr. Murphy’s petition because the OCCA had correctly determined that ‘the crime was not within the exclusive jurisdiction of the federal government. See Brief for the United States as Amicus Curiae, Murphy v. Oklahoma, No. 05-10787,
. The court declared a mistrial because neither side had been afforded its full complement of peremptory challenges—a structural error under Oklahoma law at the time. See
. "[A] prisoner who was denied habeas relief in the district court must first seek and obtain a COA from a circuit justice or judge” before . an appeal can be heard. Miller-El v. Cockrell,
. The district court treated the application as second and successive and transferred it to this court. We concluded that at least a portion of Mr. Murphy's Atkins challenge could proceed and ordered a partial remand. In re Murphy, No. 12-7055, at 2 (10th Cir. Nov. 1, 2012) (unpublished order).
. The district court granted Mr. Murphy three COAs and we granted five more. The district court granted COAs for Mr. Murphy's arguments regarding: (1) ineffective assistance of counsel, (2) the "heinous, atrocious, or cruel” aggravating circumstance, and (3) the trial court’s failure to define "life without parole” for the jury. In June 2015, we ordered Mr. Murphy to file a motion for additional COAs across both appeals. We granted COAs for his claims regarding: (1) victim-impact statements, (2) Oklahoma's jurisdiction, (3) the district court’s refusal to stay and abate proceedings on his first federal habeas application, (4) Oklahoma’s procedural handling of his Atkins claim, and (5) cumulative error. Murphy v. Warrior, Nos. 07-7068 & 15-7041, at 1-2 (10th Cir. Jan. 6, 2016) (unpublished order). All eight issues are properly before us in this appéal, but our resolution of the jurisdictional claim obviates the need to address the other seven issues.
.Because this case concerns the Creek Reservation,’we refer to the-Tribes’ joint brief ' with the shorthand "Crеek Nation Br.”
. See also Yellowbear v. Att’y Gen. of Wyo.,
. Mr. Magnan was later convicted in federal court of three counts of murder in Indian country. We affirmed his convictions. See United States v. Magnan,
. AEDPA concerns federal court deference to the decisions of state courts. Our review of the federal district court’s application of AED-PA is de novo. See Frost v. Pryor,
. Similarly, "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster,
, Whether the Major Crimes Act applies does not depend on whether the victim is an Indian. See 18 U.S.C. § 1153(a) (reaching crimes against an Indian "or other person”).
. Before the 1948 codification, Congress in 1932 had also provided that the Major Crimes Act would apply to enumerated crimes committed by Indians “on and within any Indian reservation under the jurisdiction of the United States Government, including rights of way running through the reservation.” Act of June 28, 1932, 47 Stat. 336, 337.
. "Indian country” carries a different meaning for certain laws relating to intoxicants. See 18 U.S.C. §§ 1154, 1156; see also 18 U.S.C. § 1151 (defining "Indian country” "[e]xcept as otherwise provided in sections 1154 and 1156 of this title”). These exceptions are not relevant here.
. The terms "disestablished” and "diminished” "have at times been used interchangeably," but "disestablishment generally refers to the relatively rare elimination of a reservation while diminishment commonly refers to the reduction in size of a reservation.” Yankton Sioux Tribe v. Gaffey,
, The presumption against reservation disestablishment and diminishment accords with the general principle that an intent “to abrogate or modify a treaty is not to be lightly' imputed to the Congress." Menominee Tribe of Indians v. United States,
. Or, as the Supreme Court described the policy at the time, "Of late years a new policy has found expression in the legislation of Congress,[ ] a policy which looks to the breaking up of tribal relations, the establishing of the separate Indians in individual homes ...."In re Heff,
. The policy of the General Allotment Act, the Supreme Court has said, “was to continue the reservation system and the trust status of Indian lands, but to allot tracts to individual Indians for agriculture and grazing. When all the lands had been allotted and the trust expired, the reservation could be abolished.” Mattz,
. As already mentioned, Mr. Murphy pursued three theories for Indian country jurisdiction before the OCCA. This part of the OCCA’s discussion addressing Mr. Murphy’s reservation argument under § 1151(a) followed its rejection of his allotment theory under § 1151(c). We omit the OCCA’s discussion of the "dependent Indian community” theory under § 1151(b) because that issue is not before us. And although Mr. Muiphy again raises the allotment theory in this appeal, we do not reach that issue because we agree with him that the crime occurred within the Creek Reservation.
. The OCCA referred to Mr. Murphy as "Petitioner.”
. As part of his offer of his proof on the reservation issue, Mr. Murphy submitted an affidavit from Ms. Blackwell, an attorney with more than two decades of experience practicing Indian law with the U.S. Department of the Interior. See Blackwell Aff. ¶¶ 3-4, State Post-Conviction Record, Vol. 1 at 151. Ms. Blackwell stated the tract of land where the crime occurred "falls within the territorial boundaries of the Muscogee (Creek) Nation.” Id. ¶ 13. As the OCCA pointed out, she stated "[t]here was never a formal Creek Nation ‘reservation’ ” because the Creek Nation had "acquired the land at issue in this case through treaty with the United States.” Id. ¶ 14. But there is no dispute that the Creek Nation had a reservation; the State agrees it was intact in 1900, see Aplee. Br. at 75 n.25. Rather, the dispute is whether Congress has disestablished the Creek Reservation. In Ms. Blackwell’s opinion, "[t]he exterior territorial bоundaries of the Creek Nation were not altered” by congressional acts around the turn of the twentieth century. Blackwell Aff. ¶ 21. She concluded "the Muscogee (Creek) Nation has not been disestablished” and that “regardless of title ownership as Indian or non-Indian, the [tract where the crime occurred] is Indian country within the meaning of Federal Law.” Id. ¶ 22.
It seems redundant, however, to treat lands as both a reservation and an allotment. Section 1151 clearly makes a distinction between the two.
.Mr. Dell, "an Assistant Realty Officer for the Creek Nation, rendered a title opinion on behalf of the State.”
The case finds the term “reservation,” for purposes of defining Indian country, “simply refers to those lands which Congress intended to reserve for a tribe and over which Congress intended primary jurisdiction to rest in the federal and tribal governments.”
. Because we agree with the State, we need not address its alternative contention that Mr. Murphy waived his merits-determination argument.
. The OCCA included Rosebud Sioux Tribe,
. “[T]he Supreme Court has applied, without comment, a de novo standard of review in determining congressional intent regarding reservation boundary diminishment.” Wyoming v. EPA,
. Independent of AEDPA, the Supreme Court's Teague doctrine, Teague v. Lane,
For one thing, the State does not argue that Teague should preclude relief. In such circumstances, "a federal court may ... decline to apply Teague.” Caspari v. Bohlen,
Teague provides that "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.”
Teague has two exceptions. "First, the bar does not apply to rules forbidding punishment of certain primary conduct or to rules prohibiting a certain category of punishment for a class of defendants because of their status or offense.” Beard v. Banks,
Mr. Murphy’s conviction became "final” on April 21, 2003—the date the Supreme Court denied his petition for certiorari following his direct appeal to the OCCA. See
. The Act elsewhere used the word "conveyed.” See id. at 872.
. “The Cherokees, Chickasaws, Choctaws, Creeks, and Seminóles historically have been referred to as the ‘Five Civilized Tribes.'" Indian Country, U.S.A.,
. As discussed below, the Creek Nation contends the 1866 borders remain the Reservation's boundaries today.
. "Although most of what is today Oklahoma was once the 'Indian Territory,' after the creation of Oklahoma Territory in 1890, the phrase referred to the eastern portion of present-day Oklahoma encompassing the lands of the Five Civilized Tribes, plus lands of other tribes situated in the extreme northeastern corner of the state.” Indian Country, U.S.A.,
. In 1903, the Supreme Court decided Congress can unilaterally abrogate treaties with Indian nations. See Lone Wolf,
. We discuss these statutes in greater detail below as part of our step-one Solem analysis.
. The six states are Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin. See id. at 537 nn.44-45.
. The law provided that tribal members who accepted an allotment would be deemed U.S. citizens. § 15,
. The Curtis Act also contained a proposed agreement between the federal government and the Creek Nation providing for the allotment of tribal lands, see § 30,
. The Agreement defined “citizen” as "a member ... of the Muskogee tribe or nation of Indians.” ¶ 1, 31 Stat, at 862, The Act stipulated "the words .‘Creek’ and ‘Muskogee’ ” were synonymous. Id.
. The Agreement provided citizens of the Seminole Nation who had settled in lands belonging to the Creeks were allowed to take allotments in Creek lands, and the same terms were extended to Creek citizens in Seminole lands. ¶ 36,
. For members of the Creek Nation unable to select lands for themselves—children, “prisoners, convicts, and aged and infirm persons”—the Agreement provided a mechanism for selection on their behalf and in "the best interests of such parties.” ¶ 4,
.The United States was understood to have a reversionary interest in the Tribe's lands. See 1833 Treaty, art. 3,
. The Agreement gave municipal corporations authority to issue bonds and borrow money for public projects such as for "the construction of sewers, lighting plants, waterworks, and schoolhouses.” ¶ 25,
. Creek courts, already abolished under the Curtis Act, were not reestablished. ¶ 47,
. The task of removing "objectionable” persons from the lands of Creek citizens fell to the Secretary of the Interior and the United States Indian agent. ¶ 8,
The Secretary was also to administer the Creek school fund, and Creek schools were to be governed under the Secretary's rules and regulations as well as "under Creek laws” subject to the Secretary’s oversight. ¶ 40,
. See also ¶ 5,
. The Five Tribes Act was passed after March 4, 1906, the date the Original Agreement had set for the dissolution of the Creek government, see ¶ 47,
.The State contends these laws ‘‘carry less weight” because they were passed after the allotment agreements. Aplee. Br. at 62. This suggests the State considers the 1901-02 allotment agreements to be the legislative enactments in which Congress disestablished the Creek Reservation, yet the State includes the 1906 statutes in its step-one argument. We consider the text of the 1906 laws as step-one evidence, as opposed to step-three, later-history evidence, because statutory text is the concern of step one. See Parker,
. Congress also assigned new powers at the town level. It provided for the operation of light and power companies within the Indian Territory and granted new taxing powers to towns with more than two thousand people. See §§ 25-26,
. Purchasers of town lots who failed to make timely payments were liable to forfeit the purchase and have the Secretary re-sell the land at public auction. § 12,
. Congress made several changes to the laws of descent and inheritance. For allottees who died intestate and without heirs, their lands ' would revert to the Tribe or escheat to the future state or territorial government. § 21,
. Later in 1906, Congress delayed the implementation of § 15—providing for the sale of tribal property—and clarified it would "not take effect until the date of the dissolution of the tribal governments of the Choctaw, Chickasaw, Cherokee, Creek, and Seminole tribes." Act of June 21, 1906, ch. 3504, 35 Stat. 325, 342.
. Additional examples can even be found within the statutes the State cites, but not with respect to the Creek Nation. In the 1893 appropriations law—the State’s first statute— Congress provided money to satisfy sum-certain purchases of Indian lands under agreements previously negotiated with two Tribes. First, Congress approved $30,600 “to pay the Tonkawa tribe of Indians in the Territory of Oklahoma for all their right, title, claim, and interest of every kind and character in and to four townships of land ... conveyed and relinquished to the United States.” § 11,
. Tribal title was never fully extinguished because, as we explained in Indian Country, U.S.A., the Creek Nation has retained title to some lands within the Reservation.
. The State’s contention that regulation of the tribal government indirectly reveals what Congress thought about the Reservation’s borders may more appropriately be a step-two argument about the contemporary understanding of the Acts, rather than a step-one textual argument. Either way, it fails to show Congress disestablished the Creek Reservation’s boundaries.
. In Osage Nation, we referred in passing to the Creek Reservation as disestablished, see
. Had the State chosen to. present its eight-statute, cumulative-effect argument as step-two -contextual evidence—as opposed to step-one textual evidence—we would still conclude Congress did not disestablish the Creek Reservation. The eight statutes reveal a congressional hostility to Creek independence consistent with the assimilationist impulse of the era. See Solem,
. The Supreme Court has questioned Buster’s approach to Indian taxing, authority, but we consider the case only as a contemporary source revealing an understanding that ’Congress had not disestablished the Creek Reservation.
In Atkinson Trading Co., the Supreme Court invalidated a hotel occupancy tax challenged by a non-Indian who owned a hotel within the borders of the Navajo Reservation.
. The State cites the following examples: 12 U.S.C § 4702(11); 16 U.S.C. § 1722(6)(C); 25 U.S.C. §§ 1452(d), 2020(d)(1)-(2), 3103(12), 3202(9); 29 U.S.C. § 741(c); 33 U.S.C. § 1377(c); 42 U.S.C. §§ 2992c(2), 5318(n)(2). Within 29 U.S.C. § 741, “reservation” is actually defined in subsection (d), and within 42 U.S.C. § 2992c, "Indian reservation” is defined in subsection (3).
. The regulation dates to 1980. See Land Acquisitions, 45 Fed. Reg. 62034, 62036 (Sept. 18, 1980) (announcing regulation's finalization)..
. The Oklahoma Attorney General similarly concluded in 1979 that Oklahoma has jurisdiction over the former Indian Territory: "Due to the dissolution of the Indian tribes of former 'Indian Territory' as governments of Uniited sovereignty, there is no 'Indian country’ in said former’ ‘Indian Territory’ over which tribal and thus federal jurisdiction exists.” 11 Okla. Op. Att’y. Gen. 345 (1979), available at
. In the 1990s, we rejected an attempt by the federal government to allow Oklahoma to prosecute a Creek citizen for the murder of another Creek citizen. Sands,
. See also The Muscogee (Creek) Nation, http://www.mcn-nsn.gOv/services/# (providing overview of tribal services including, among others, language programs, environmental services, family violence prevention programs, historical and cultural preservation programs, senior services, and education and transportation programs) [https://perma.cc/Q 82C-ZVZY],
. Mr. Muiphy has submitted other step-three materials in the form of reports and legislative history criticizing the Oklahoma probate courts for their handling of Indian estates in the years after allotment. See Aplt. Br., Attach. E. Similarly, he cites a lengthy 1928 report commissioned by the Department of the Interior, see id. at 42 n.19 (citing Institute for Government Research, "The Problem of Indian Administration” (1928)), on which the State also draws. We have considered these materials, but they do not affect our conclusion.
. The 1866 boundaries of the Creek Reservation, however, cover more than McIntosh County.
. See United States Census Bureau, “American FactFinder,” Profile of General Demographic Characteristics: 2000 [https://perma.cc/LH7M-32WX].
Concurrence Opinion
concurring in the denial of rehearing en banc.
En banc review is not appropriate when, as here, a panel opinion faithfully applies Supreme Court precedent. An en banc court would necessarily reach the same result, since Supreme .Court precedent precludes any other outcome. I.write only to. suggest this case might benefit from further attention by the Supreme Court,
As the panel opinion explains, the three-part framework of Solem v. Bartlett,
In 1893, Congress created the Dawes Commission to negotiate with the Creek Nation for the express purpose of extinguishing national title to lands held by the Creek Nation, preferably through allotment. Act of Mar. 3, 1893, § 16, 27 Stat. 212 at 645. The Creek Nation refused to negotiate, so Congress began imposing restrictions. Over the following five years, Congress destroyed the Creek legal system and threatened to terminate Creek land ownership unless the tribe agreed to allotment. Faced with this threat, the Creek Nation agreed to allotment in 1901. Most land owned by the Creek Nation was then allotted to individual members of the tribe. Murphy v. Royal,
The parties hotly dispute the inferencés to be drawn from the history of the Creek Nation. I am not without sympathy for Oklahoma’s argument that Congress’s series of actions' here effectively constitute disestablishment, but the panel properly rejected that argument: Solem is clear that “[o]nce a block of land is set aside for an Indian Reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise.”
Supreme Court precedent thus requires that evidence of intent to disestablish be “unequivocal].” Nebraska v. Parker, — U.S. —,
Solem itself recognized that “[w]her¿ nomlndian settlers flooded into the opened portion of a reservation and the area has long since lost its Indian character ,.... de facto, if not de jure, diminishment may have, occurred.”
This case may present the high-water mark of de facto disestablishment: the boundaries of the Creek Reservation outlined by the panel opinion encompass a substantial non-Indian population, including much of the city of Tulsa; and Oklahoma claims the decision will have dramatic consequences for taxation, regulation, and law enforcement. The panel faithfully applied Supreme Court precedent holding that such “demographic evidence [cannot] overcome the absence of statutory text disestablishing the Creek Reservation.” Murphy,
In sum, this challenging and interesting case makes a good candidate for Supreme Court review.