*1 petitions court has been advised no has re
rehearing judge en banc and
quеsted a on whether to rehear the vote App. R. P. Fed.
matter en banc. rehearing panel peti
petitions for and the rehearing
tions en banc denied. are Dwayne MURPHY,
Patrick
Petitioner-Appellant, Warden,
Terry ROYAL Oklahoma Penitentiary, Respondent-
Appellee. (Creek) Nation;
Muscogee Na Seminole Oklahoma;
tion of Band Keetoowah Indians, Amici Curiae. Cherokee
Nos. 07-7068
15-7041
United Court Appeals, States Circuit.
Tenth 9, 2017
November
hearing Rehearing En Banc. We also from responses petitioner have and the United Keetoowah Band Cherokee Indi ans, in addition to amici curiae briefs from the United States Muscogee and The (Creek) Nation. alsoWe have mo several Ghezzi, Patti Palmer Assistant Federal tions pending seeking to file additional am- (Randy A. Public Defender Bauman and ici curiae briefs. Lieberman, Michael Assistant Federal Defenders, briefs), Public with her on the consideration, Upon request pan- Defender, Office of the Federal Public rehearing el is denied original panel Oklahoma, City, Oklahoma appearing for clarification, For however, members. Appellant. decided, panel has sua sponte, to amend original pages decision at copy 49-50.A Crabb,
Jennifer L. Attorney Assistant of the amended decision is attached to this (E. Pruitt, General Attorney Scott Gener- order, and the clerk is directed to reissue al, Haines, and Jared B. Assistant Attor- opinion nunc pro tunc to original General, brief), ney on her Office filing of August addition, date Attorney General for the State of Judge Tymkovich Chief has filed a concur- Oklahoma, Oklahoma, City, ap- Oklahoma rence to the denial of rehearing, and that pearing Appellee. concurrence likewise attached. Katzen, A. Giampetroni, Kanji David & PLLC, (Kevin Arbor, Ann Michigan Del- Petition, responses, amici General, linger, Attorney Do- Lindsay filings opinion and the amended were also well, Attorney General, Assistant Musco- to all judges circulated the court (Creek) Nation, Oklahoma; gee Okmulgee, regular active service who are not recused. III, General, D. Attorney Michael McBride 35(a). App. R. P. no judge Fed. As *6 Vaughn, Attorney and Christina Assistant original panel or the en court banc General, Oklahoma, Seminole Nation requested poll that a be request called the Tulsa, Oklahoma; Dunlevy, Crowe & and for en banc review is denied.
Philip Riyaz H. Tinker and A. Kanji, Kanji Finally, the motions filed Okla- Arbor, Katzen, & Ann Michigan, with him Association, Independent homa Petroleum briefs), appearing for amici Musco- Municipal League, the Oklahoma (Creek) gee Nation and Seminole Nation Association, al., Oklahoma Oil and Gas et of Oklahoma. seeking leave to file amici curiae are briefs Cowan, Fellers, Snider, Klint A. Blank- granted. Those briefs will be shown filed P.C., enship, Bailey Tippens, & Oklahoma as of the date this order. Oklahoma, City, appearing for amicus United Keetoowah Band Cherokee Indi- MATHESON, Judge. Circuit ans in Oklahoma. TYMKOVICH, Judge,
Before Chief TABLE OF CONTENTS MATHESON, PHILLIPS, Circuit I. BACKGROUND... 904 Judges. History.. A. .904 Factual
ORDER History.. B. Procedural .905 These matters are before the court on respondent’s Petition Panel 905 Re 1. Trial... 902 923 Arguments... 2. The State’s 905 appeal...
2. Direct Decision—Contrary Post-Con- The OCCA for State B. Application First 3. .923 Law.. Clearly Established Federal .906 Relief.. viction Decision., .923 1. The OCCA’s for Federal Application Filing of First 4. Merits .906 Habeas Relief.. Contrary to Was 2. The Decision OCCA’s Post-Con- Application for State .926- Solem.. 5. Second Relief... 907 viction to Solem...926 a. No citation Evidentiary hearing.. .907 a. .926 Solem.. apply b. Failure the OCCA...908 Appeal b. . . arguments... c. The State’s .909 Atkins trial appeal.. c.. Jurisdic- Federal C. Exclusive Proceedings on Court District 6. Federal tion... 928 Application,. .910 Habeas First Federal Legal Background... 930 1. Additional Cir- to the Tenth Appeal First 7. authority... 930 Supreme, a. ...910 cuit authority.. .931 Circuit b. Tenth Habe- for Federal Application 8. Second , Background— Factual Relief,. Additional 2. .910 History... 932 Creek Nation Appeal... 9. This Consolidated forced reloca- Original homeland and a. II: BACKGROUND... LEGAL tion.., 932 of Review... A. Standard century diminish- Nineteenth b. Dispute... The Parties’ ment...933 AEDPA 2. The Standard... govern- c. 1867 Constitution .912 a. Overview.. ment,,. 933 “contrary to” clause... b. The congressional regulation of mod- Early d. .933 ern-day Oklahoma.. Country B. Jurisdiction... .914
1. Reservations.. allotment... push e. The .915 Act.. Major Crimes f. Allotment and aftermath... Country... Oklahoma... g. Creation *7 and Di- Disestablishment 4. Reservation . ..936 Away from allotment. h minishment.. .917 Law 280... 936 i. Public against disestablishment Presumption a. Constitution.., 937 j. A new .918 and diminishment.. Country, in Indian k. Our decision of allotment... 918 policy b. The .937 U.S.A... 920 c. Solem factors... Solem.. Applying .937 921 III. DISCUSSION... Statutory Text.. .938 One: Step a. Clearly Established Federal A. statutes., .939 i. .921 Law.. Stat, 3, 1893, 1) ch. 27 of March Law in Act Solem—Clearly Established Act”)... (“1893 939 612 2005...921
903 (cid:127) 2) 10, 1896, 2) of June ch. 29 Stat. 1895 letter.-. Act Dawes .957 Act”)... (“1896 940 321 3) Attorney 1900 opinion... General 957 3) 62 Act June ch. 30 .Stat. 4) Post-allotment evidence... 958 0 (“1897Act”)...94 iii. 959 . Analysis .t.. 4) Act,” 495 ch. 30 Stat “Curtis (June 28, 1898)... 941 Step History.. c. Later .-960 Three: 5) “Original Agreement,” Allotment ch. i. Treatment area... 960 1901)...941 (March Stat. 861 31 1) Congress... 960 a) 941 Allotment... 2) Executive.. .-961 b) sites... 943 Town 3) Federal courts... . c) pur- reserved tribal Lands 4) Oklahoma.. .963 poses ...943 Nation.,. 964 5), Creek (cid:127) d) governance.. .943 Future ii. .965 Demographics.-. 6) Agreement,” Allotment “Supplemental (June 30,' ch. Stat. iii. Step-three concluding comment.. .966 1902)... 944 IV! CONCLUSION... 7) Act,” ch. “Five Tribes Stat. Dwayne Murphy Patrick asserts he was 26,1906... 137, April court. He wrong challenges tried 8) Act,” Enabling “Oklahoma ch. jurisdiction of the Oklahoma court in state (June 16,1906).. Stat. 267 .947 convicted of which he murder Analysis... ii. to death. He contends he should sentenced in federal court have been tried because he 1) hallmarks of or No disestablishment' offense is an and the occurred Indian diminishment., .948 agree country. Indian We remand 2) Signs Congress recognize continued to issue a writ of the district court habeas Reservation... vacating corpus his conviction and sen- 3) governance argu- The State’s title and tence.
ments ...951 of whether the court question state a) Title...952 straightforward jurisdiction reaching an answer is not. navi- We must b) .953 Governance.. (1) gate corpus the law federal habeas Step Contemporary b. Two: Historical decisions, (2) court review of state Evidence... (3) jurisdiction generally, country i. evidence.. .954 The State’s ^ (4) specifically, a res- reservations how ) be can disestablished diminish- Senate .955 debat.. érvation 1 topics each of ed. Our discussion these 2) report,. Senate committee ..956 *8 following reaches the conclusions. 3) sources... 956 Other (cid:127) First, assume that- a habeas we federal Murphy’s ii. Nation’s Mr. and the Creek give deference to state court must a' evidence.. .957 jurisdic- that it court’s determination had 1)1894 tion.-Nonetheless, case, in Dawes Commission rec- this the Okla- ords, applied . .957 a rule that con- homa court was I. clearly Supreme BACKGROUND established
trary apply the correct law. law. must We crime begin with the facts of the We by the Oklahoma Court of Crim- presented Second, charged is with when an Indian (“OCCA”).2 then discuss Appeals inal We country, he committing a in Indian murder Murphy’s case procedural journey Mr. court. Mr. be in federal or she must tried has traveled. Muscogee Murphy is a member (Creek) homicide Nation. Because the History A. Factual in In- him was committed
charged against courts country, the state dian Oklahoma August Murphy Mr. lived with try him. jurisdiction lacked State, Murphy v. 47 P.3d Patsy Jacobs. (Okla. 2002). App. Ms. Ja Crim. Third, Congress has defined Indian relationship previously in with cobs was a categories country broadly include three case, Jacobs, this George in the victim (b) reservations, (a) de- Indian of areas: him, Id. George, had a child with Jr. (c) communities, Indi- Indian pendent Murphy argument .an with Mr. 879-80. § 1151. The an allotments. 18 U.S.C. Mr. he Jacobs and said was her about All us here. clause concerns get” family. Mr. Jacobs his “going reser- of an Indian land within the borders Id. at 879. tribe, vation—regardless of whether the Indians, ti- hold non-Indians August spent individual Mr. Jacobs On cousin, given drinking day to a tract land—is with his Mark tle p.m., Mr. has disestab- Id. Around 9:30 Sumka country Congress unless Sumka. driving Henryetta, to a bar Okla- its was in reservation or diminished lished the homa, passed Mr. out Jacobs borders. driving Id. Mr. Murphy back seat. Fourth, only may Congress disestablish opposite same road direction Apply- or diminish Indian reservation. passengers—Billy Long and Kev- with two ing Court’s test determine King. passed Id. After cars each so as has done whether other, stopped. they Murphy Id. Mr. Reservation, it has not. Creek we conclude turn off up and told Sumka to backed Mr. car, off. but Mr. drove Sumka Murphy agree Mr. and the State in this the offense case occurred within Murphy passengers pursued and his Mr. Reservation if has Creek Road, Mr. Sumka off and forced Vernon it. the Reser- conclude disestablished We through “re- runs an area remains therefore the vation intact and markably heavily rural ... treed [and] country. crime was committed ... any improvement sort ex- without citizen, have a Murphy, perhaps rickety should barbed wire fence.” cept State, 1198, 1206 charged Murphy court.1 v. 124 P.3d been tried correct); Murphy ap- also eight in this determinations are 1. Mr. raises issues factual Trani, by (10th peal. Because resolve first issue his 779 F.3d Al-Yousif concluding jurisdiction 2015) ("The the state courts lacked presumption of correctness Cir. case, other over this we do not his address findings applies to made factual seven issues. of review rec- court based on the trial state omitted)). (quotations ord.” 2254(e)(1) (providing 28 U.S.C. feder- 2. See presume al habeas court state court’s must *9 2005); (Okla. History B. App. Crim. also 47 P.3d Procedural juryA Murphy convicted Mr. of murder Murphy Mr. the car exited and confront in Oklahoma imposed state court and Mr. at 879. Mr. Long ed Sumka. 47 P.3d penalty. death appeal post-convic- His and King began hitting Mr. Mr. and Jacobs. tion proceedings have since moved through approached Murphy Id. at 880. Mr. Mr. the Oklahoma and federal courts as re- Jacobs, with places Long, Mr. trading who counted below. hit Sumka.
went over and Mr. Id. at 880. Although history overall Mr. Mur- off briefly Mr. Sumka ran but came back phy’s complex, case is history Id about five minutes later. jurisdictional claim we resolve here can be did, Murphy Mr. When he he saw throw succinctly summarized. After Mr. Mur- woods, folding into a knife and he saw phy’s conviction death sentence were road, lying along Mr. in a Jacobs ditch affirmed appeal, applied direct he barely breathing. Murphy Id. Mr. and his post-conviction state in arguing relief companions kill Mr. threatened Sumka the Oklahoma ju- state courts had lacked family anything, his if said he and Mr. to try risdiction him. The OCCA ordered in King jaw. struck Mr. Sumka Id an evidentiary hearing. Following the hearing, the state court district concluded Murphy’s instructions, Following Mr. jurisdiction Oklahoma’s proper was be- Mr. Sumka with left the scene the other cause the crime not occur in did During away, men. Id. the car ride they country. OCCA affirmed that conclu- they Mr. had cut told Sumka Mr. Jacobs’s sion in 2005. Murphy Mr. then sought genitals. throat and chest and had severed his relief, but federal habeas the federal dis- group Id . later went Mr. trict court denied relief 2007. Mr. Mur- home, son, King’s Mr. where Jacobs’s phy appeals. now Jr., George, staying, apparent kill Mr. attempt King’s him. Id. mother In thoroughness, interest of and be- plan.” intervened “thwarted [their] Id. cause Murphy’s Mr. case has until now inside, King Mr. went rest of the fashion, proceeded pro- a disjointed left. Id. group complete procedural history a vide below. A passerby Mr. found Jacobs 1. Trial his bloodied ditch with face and slashes geni
across his chest and stomach. Id. His In jury County, a in McIntosh Oklahoma, tals had been cut off and his throat slit. Id. Murphy Mr. convicted first criminalist, According to a degree state Mr. Ja Okla. tit. 21 murder under Stat. 701.7(A) (1999). off dragged cobs had been after penalty phase, road In the genitals his Id. His aggravating were severed. neck the jury found circumstances road, cut on the side of chest been supported penalty. Murphy, the death he where bled death over the course of jury’s P.3d at with the accordance minutes, though may verdict, imposed four twelve have the trial court a death longer. taken sentence. Id Murphy After Mr. returned home and appeal 2. Direct Jacobs,
confessed to Ms. he was arrested. variety Murphy him Mr. raised trial charged Id. The State Oklahoma issues the OCCA. On sought appeal Jacobs’s murder and direct con May affirmed his penalty. death the OCCA *10 906 new, post-Atkins pro- adopt Id. at 888. The per phy’s court also case to
viction. per- statutorily sentencing “mentally to shield retarded” formed a mandated cedures See id. considered the at in the court 567-69. review sons execution. from. which light in explained, circumstances aggravating procedures, OCCA These evidence, including Mur Mr. mitigating govern “until such time” as the would retardation,” con phy’s “mild mental legislature an alterna- Oklahoma enacted “factually was his death sentence Id. at 568. The OCCA cluded tive framework. Id. at 887- appropriate.” substantiated “for to the district state court remanded 88.3 the sole evidentiary hearing on issue retardation Murphy’s] claim mental [Mr. Application for Post- First State 3. newly in with” an- the OCCA’s accordance Relief Conviction procedures. Id. at 570. nounced 7, 2002, direct February his On while remand, the On state district court con OCCA, Mr. pending appeal Murphy Mr. “had not suffi cluded raised application filed his for state Murphy first on question a cient create fact evidence State, v. Murphy post-conviction relief. See Murphy the issue of mental retardation.” (Okla. 2002). 556, App. 560 54 P.3d Crim. (Okla. State, 456, 458 App. v. 66 Crim. P.3d that be application He asked his held 2003). 21, 2003, On the OCCA ruled March 566, id. at abeyance, Supreme uiitil clearly conclusion was “not erroneous” this of At then-pending decided its Court case sen Murphy’s affirmed Mr. death 304, Virginia, v. kins 122 U.S. S.Ct. 458, tence. Id. 461. 2242, (2002), ad L.Ed.2d 335 Eighth whether Amendment dressed Filing for Fed- Application First prohibits “mentally re execution Relief eral Habeas 2242, id. person's,” 306, 122 S.Ct. tarded 5, Murphy.filed On March Mr. June after On about month application 28 U.S.C. habeas under appeal, OCCA affirmed on direct asserting grounds relief. in Atkins Supreme Court held 30, 2004, August District On U.S. Eighth “places Amendment a substantive Okla- for the District of Court Eastern take power restriction the State’s application Murphy’s homa Mr. concluded mentally life of a retarded offender.” not been contained some claims had omitted), (quotations S.Ct. state court. The exhausted Atkins task “[left] States the Oklahoma Murphy court Mr. federal district directed appropriate developing to enforce the ways claims, his drop unexhausted to. Id. constitutional restriction.” (brackets omi quotations S.Ct. 10, 2004, Murphy September Mr. did On ) d tte . application con- filing so an amended claims, taining eight of which were ex- September On OCCA denied all .the Murphy on all of the'-issues re- application relief Mr. hausted. His amended application post- pending district raised his first for state mained the federal in- relief Atkins claim. except pursued conviction relief court while he additional his 54 P.3d at OCCA Mr. state court.4 used Mur- applica- April day he On the U.S. 4. The same filed his amended tion, Murphy' ap- Murphy’s a short-lived petition denied Mr. for a writ of launched Oklahoma; sought Murphy He review peal. our the district certiorari. (2003), request stay denying order his court’s 155 L.Ed.2d Application Evidentiary hearing Post- a. 5. Second *11 Conviction Relief The state district court one-day held a 29, 2004—shortly he On March after evidentiary hearing. Id. at 1201. Mr. Mur original applica- his habeas filed federal phy argued Oklahoma jurisdiction lacked Murphy tion—Mr. state court returned because crime occurred Indian coun application post- a for and filed second § try provides 18 U.S.C. for ex he conviction relief claims exhaust jurisdiction clusive federal over murders dropped applica- from his federal habeas by country.7 Indians in Indian committed His application post- tion. second state parties agreed Murphy that Mr. alleged: conviction relief Jacobs, of Mr. both members the Musco jurisdiction be- Oklahoma lacked (Creek) gee Nation, Indians, they were but Major gives cause the Crimes Act disputed whether crime occurred government ju- the federal exclusive country, Indian a term defined in 18 prosecute risdiction to murders com- § U.S.C. 1151: by in Indian coun- mitted Indians ,.. country” term “Indian means [T]he try.5 (a) all any land within the limits of jury 2. The OCCA’s denial earlier jurisdiction Indian reservation under the his trial on the issue “mental re- Government, of the United States not- tardation” his constitu- had violated withstanding any patent, the issuance rights. tional and, including rights-of-way running injection protocol 3. Oklahoma’s lethal (cid:127) reservation, through the Eighth violated the Amendment. (b) Murphy, dependent all See Indian P.3d 1208-09. communities evidentiary OCCA within the hearing ordered an borders United States claim. Id. at 1199.6 jurisdictional original on whether within the or subse- his 6. The OCCA proceedings pursued hearing he while that the ordered answer the following six-questions: in state Another unexhausted claims court. panel (1) the appeal this dismissed court exactly Where did crime occur? Mullin, jurisdiction. Murphy (2) property upon lack v. No. Who to the "owns” title (10th 16, 2004). 04-7094 Cir. which the crime occurred? Dec. (3) If of the crime some all occurred on easement, how factor Oklahoma, does into subject ju- 5.In "issues matter question? ownership risdiction are and can waived therefore never (4) occurred, How much of crime if appeal.” raised be on a collateral Wallace v. any, on an easement? State, (Okla. App. Crim. P.2d (5) occur the crime Coun- Did "Indian 1997); Franklin, Triplet see also v. 365 Fed. ty,” § 18 U.S.C.- 1151? as defined 2010) (10th Appx. (unpublished) Cir. (6) jurisdiction over Is the crime exclu- Oldahomá, that, (recognizing issues of sub- sively federal? ject jurisdiction matter are not waivable and (paragraph 124 P.3d 1201 n.3 breaks add- can be raised for first time in collateral ed). State, proceedings); Wackerlyv. 237 P.3d (Okla. 2010) (considering App, ju- Crim. against “Any per- commits Indian who risdictional on claim that crime occurred fed- property son or of another Indian or other applica- offenses, prisoner’s eral land second raised person following namely, any of the relief); Magnan post-conviction tion for country, murder ... Indian shall within the State, (Okla. App. subject penalties Crim. P.3d be law as all the same 2009) country jurisdic- committing (considering persons any other offenses, of the above challenge jurisdiction explaining subject tional exclusive matter within the 1153(a). time). jurisdiction challenged any U.S.C. may United States.” 18 be thereof, to the OCCA Appeal b. territory acquired quently the limits of or without within whether On to the OCCA. Murphy appealed state, and relief OCCA denied December allotments, the ti- (c) all Indian Eighth Amend- jurisdictional and on his not been extin- which have tles to relief granted limited claims ment running including rights-of-way guished, id. at Atkins claim. See the same. through issue, the OCCA jurisdictional On the *12 § add- (paragraph breaks 18 U.S.C. some of support the record did found if country ed). qualifies as Indian An area determinations, state district court’s the categories. any of these three it fits within the determination but it affirmed ultimate in crime occurred Murphy argued the Mr. jurisdiction was proper. that Oklahoma’s categories.8 three country under all Indian accepted the The OCCA Id. at 1201-08. regarding findings court’s district the state district state In December unfolded, rejected it but the crime jurisdiction was where state concluded court that Oklahoma conclusion the court’s occurred on the crime had proper because abutting it. the ditch the 1202. The owned road land. See P.3d state concluded, Rather, the OCCA however, Id. at 1202. court, only one of Mr. addressed ques- in in the area “interest It Id. at 1207. Oklahoma’s Murphy’s three theories. or of an easement nature allot- tion is the not an the land was Indian concluded Nation way.” Id. The Creek had 1151(c), right-of § it failed to ad- ment under when, (a) question long the land part of location was owned the dress whether Oklahoma (b) a statute enacted part or of a under Reservation (not- public high- right to build received community. See id. dependent Indian Tracing history at 1203. way. Id. court ad- ing the state 'district failed occurred, tract where the crime specific although the OCCA questions dress these passed it so). concluded had Although the OCCA it to do “clearly had asked” century from the Creek early mat- twentieth -viewed these the state district court Smith, of the a member evidentiary to Lizzie Nation scope ters as outside Nation, in the that all interest Murphy to make an Creek allowed Mr. hearing, it mineral land—except for a restricted two theories. proof on his other 1/12 offer of to non- conveyed been interest—had since ultimately ruled the State’s The court Id9 1204-06. OCCA id. at Indians. See jurisdiction proper of criminal exercise insuffi- this interest was Indian at 1202. concluded relief. Id. and denied however, were not disestablished diminished argues appeal, he loca- lands this qualifies under the reserva- and other of the crime acts of allotment tion (a) allotment early and the adopted tion clause subsection centu- legislation 20th (c). agree Because we of subsection clause entirety historic ry, As of Indi- the crime occurred on an with him that remained Indian lands thus Creek Nation reservation, reach his allotment we do not owner- country, regardless of non-Indian argument. particular those ship tracts within boundaries. question concerns reservation 9. On the 2004), (filed Nov. Def. Tr. Bit at 12 here, argued: Murphy us Record, Case No. OCCA Post-Conviction PCD-2004-321, within the bound- homicide occurred [T]he (citing 1 at 66 Solem Vol. Nation, qualifies of the Creek aries Bartlett, as a county of its because status Indian (1984)). L.Ed.2d jurisdiction. Un- under federal tribes, treaty other the Creek like some issue, to qualify particular cient the land as an allot- step refuse to in and 1151(c): “A ment under fractional inter- such a finding make here.” Id. at 1208.11 est in an unobservable mineral interest is As for the non-jurisdictional two issues ques- insufficient contact with the situs in Mr. Murphy. raised in post- his second deprive tion to the State of Oklahoma application, conviction granted the OCCA jurisdiction.” criminal Id. at 1206.10 limited relief on one and relief on denied The OCCA criticized the state district First, the other. reversed course addressing court for not whether Atkins issue and Mr. Murphy found crime was committed within the Creek provided sufficient evidence to create dependent Reservation or within a question jury factual for a on his “mental community, but it concluded error was retardation claim.” Id. It therefore ordered Murphy harmless because Mr. had been Second, the case remanded. Id. the OCCA afforded a “to chance make an extended Murphy ruled Mr. Eighth had waived his proof.” offer 1207. The OCCA said challenge Amendment to Oklahoma’s le- evidence, admitted, had it been *13 thal injection protocol by failing to it raise was “insufficient” to show “that the tract earlier. Id. 1209. at in question qualifies as a reservation or de- pendent community.” Indian Id. In summary, the OCCA rejected the e respect theory, With to the reservation jurisdictional challenge Eighth th the OCCA acknowledged our decision in claim, Amendment but it remanded a U.S.A., Country, Indian Inc. v. Oklahoma jury trial on Mr. Murphy’s Atkins claim.12 Commission, ex rel. Oklahoma Tax 829 (10th 1987), denied,
F.2d 967
Cir.
cert.
487
c. Atkins trial and appeal
1218,
2870,
two chal- exhausted Application for 8. Federal Ha- Second (2) jurisdiction, lenge to Oklahoma’s beas Relief lethal-injection Eighth Amendment challenge. April On OCCA’s following These two claims added were final denial of Atkins claim, Murphy’s eight previously Mr. his Mr. Mur exhausted claims, second § phy application were a pending. still filed prisoner nei relief 13. The court a who denied "[A] mistrial because habeas declared in the must first seek and comple court obtain district ther side had been afforded its full justice judge” or a COA a circuit before from challenges—a peremptory ment of structural Cockrell, appeal be Miller-El heard. . can error under Oklahoma law at the time. 322, 335-36, 1287 & n.l. P.3d at 2253(c). (2003); § see 28 U.S.C. L.Ed.2d homa jurisdiction. Eastern of Oklahoma that courts District lacked This sec- resolution of challenged the OCCA’s tion applicable addresses the law to the court Atkins issue.15 The district denied jurisdictional begin (A) issue. We our Trammell, Murphy v. No. relief. CIV-12- (B) standard review and then address 191-RAW-KEW, 2015 WL *13 substantive law of Indian country ju- the. 2015) (E.D. 5,May (unpublished). Okla. risdiction. Appeal This Consolidated A. Standard Review Murphy appeal from sought to Mr. the, court’s denial of relief his district sec- parties over disagree standard § 2254 application. ond habeas We consoli- apply review that should Mr. Mur- (No. 15-7041) that appeal dated with his jurisdictional phy’s claim. The con- from his first appeal the denial habeas tends AEDPA’s deferential standard (No. 07-7068)to form application this case. apply. should Murphy disagrees Mr. argues Murphy eight Mr. we should claim raises issues. Because review'his de novo. one,16 juris- begin by he obtained COAs for each our discussing disagreement, We this proper under diction 28 U.S.C. but we choose not resolve because Mr. 2253(a), (c)(1)(A). Murphy prevails even under AEDPA re- view. Because we assume AEDPA As to one of the issues—whether Okla go applies, then on to standard de- government juris homa the federal it. scribe granted diction over the murder case—we (Creek) Muscogee motion of Na
tion and the Seminole Oklahoma Nation Dispute Parties’ joint a to file amici brief.17 We likewise below, As we greater discuss in detail permitted the United Keetoowah Band generally requires AEDPA' federal habeas Indians in Oklahoma file an Cherokee courts to court defer to state decisions. participated brief. The amicus Tribes Murphy argues ap- AEDPA does argument. at oral when, here, ply state court denies *15 II. LEGAL BACKGROUND to challenge defendant’s the state court’s subject AEDPA jurisdiction. matter defer- conclude crime occurred We ence,- maintains, “presupposes” he Creek Reservation therefore the Okla- (1) application regarding: victim-impact for his district court treated claims statements, (2) (3) jurisdiction, as second and successive and it to transferred Oklahoma's por- court. that at least a this We concluded stay the district refusal and abate court’s challenge Murphy's of Mr. tion Atkins could prоceedings appli- on his federal habeas first proceed partial remand. In and ordered a re cation, (4) procedural handling of Oklahoma’s 12-7055, (10th Murphy, Cir. No. Nov. claim, (5) his Atkins cumulative error. order). 2012) (unpublished 15-7041, Warrior, Murphy v. Nos. 07-7068 & (10th 6, 2016) (unpublished at 1-2 Cir. Jan. granted Murphy The district court Mr. order). eight properly All are before issues us granted five three COAs and we more. The juris- appéal, in this but our resolution granted Murphy's court COAs Mr. district dictional the need to claim obviates address (1) arguments regarding: ineffective assis- the other seven issues. "heinous, counsel, (2) atrocious, tance circumstance, (3) aggravating cruel” or trial define "life 17.Because this case concerns Creek Res- court’s failure to without ervation,’we jury. joint parole” for the June ordered refer to the-Tribes’ brief ' Murphy Mr. to file a motion for additional with the Nation Br.” shorthand "Creek granted appeals. across We COAs both COAs that, AEDPA jurisdiction applied court and concluded even state had decide standard, place. Aplt. in Br. at under AEDPA’s deferential given claim the first in country concluding OCCA had Oklahoma question 26. Because Indian erred jurisdiction 1160- over Id. at jurisdiction implicates tribal and federal case. interests, in 1164.18 held the crime occurred sovereignty he also contends We courts, country, making jurisdiction by Indian exclu- unconstrained that federal AEDPA, sively Magnan final federal. We ordered Mr. must make determina- custody released from state without resolv- jurisdictional tion over the issue. And he ing question” of that AEDPA to the “difficult whether argues applying jurisdic- pose separation-of- claims AEDPA federal court review tional would constrains jurisdictional regard- ruling a state court’s constitutional powers probléms. other ing country. Id. at 1176-77.19 that responds nothing The State As in can Magnan, we assume without says jurisdiction matter subject AEDPA applies AEDPA deciding that because Mr. should It claims be reviewed de novo. Murphy is entitled relief even under Mr. has failed to Murphy *16 to, trary or death. Id. 1160-61. The chal- involved an unreason- defendant of, lenged jurisdiction. clearly application state court’s Id. at able estab- law, deciding assumed without that lished Federal We determined Att’y Wyo., ap- novo or 18. See v. whether de AEDPA standard Yellowbear Gen. of (10th 2010) (un- plied). Fed.Appx. 380 743 Cir. (leaving open question published) applies concluding whether AEDPA on Magnan was later Mr. convicted in federal federal habeas review of state murder case court of three counts in Indian murder Wyoming Supreme ruling Court’s In- country. on We affirmed his convictions. See 1284, 1287, Magnan, juris- dian reservation issue favor state v. United States F.3d 2017). (10th regardless diction be affirmed Cir. should 2254(d)(1)’s by Supreme § the Unit- “contrary to” provision to States; or ed case, resolve this we restrict our discussion (2) resulted a decision that was to that clause. on an
based unreasonable determi- light nation the facts in b. “contrary to” clause presented in evidence the State proceeding. court adjudicates When a court state a prison- merits, er’s 2254(d)(1)-(2). § on 28 U.S.C. “If this claim stan review meet, 2254(d)(l)’s § dard is difficult that is because it “contrary under to” clause Richter, Harrington was meant be.” v. proceeds in steps. three S.Ct, 86, 102, U.S. (2011).20
L.Ed.2d
First, we must decide whether
is clearly
there
2254(d)
established federal law that
provides
Section
three
applies to
ways to overcome AEDPA
the claim.
Hatch,
deference. Two
See House v.
2254(d)(1),
§
appear in
provides
(10th
2008)
527 F.3d
Cir.
prisoner
qualify
state
can
for habeas
(“Whether
clearly
the law is
established is
by showing
relief
a state court decision the
question
threshold
under
(1)
(2)
“contrary
to”
an
“involved
2254(d)(1)”).
§
In discerning what law is
application
unreasonable
of’ federal
law
established,”
“clearly
look only to
must
clearly
that was
established
the Su
Court,
the decisions of
see
preme
2254(d)(1);
§
Court. 28 U.S.C.
y. Matthews,
37, 48-49,
Parker
567 U.S.
Cone,
685, 694,
Bell v.
535 U.S.
122 S.Ct.
(2012)
132 S.Ct.
(per
L.Edüd
(2002)
[the country-juris- Understanding the Indian applies court identifies and cor state “the requires issue in this back- diction case rule,” legal its rect decision will be not ground (1) reservations, knowledge law, about “contrary but to” federal the state (2) (3) Act, Major application meaning Crimes court’s of the correct rule can 2254(d)(1)’s (4) a country,” still be evaluated “un how reserva- under “Indian application” reasonable clause. Id. at tion can be disestablished or diminished. . 1495 120 S.Ct. topics-below. We address these Third, if the state court rendered 1. Reservátions , to” “contrary clearly
a decision that was precedent by established government began creating The federal test, the wrong not applying legal we do during the nineteenth Indian reservations relief; rather, necessarily grant review we century. See Felix S. Cohen’s Handbook of applying the claim the correct law. Put (Nell Jessup Federal Law New- differently, “it necessary prerequi ... 2012) ed., ton “Dur- “Cohen”]. [hereinafter a prisoner site to federal relief that habeas 1850s, ing meaning modern Indi- review,” satisfy the AEDPA standard emerged, referring land “automatically habeas relief not does protection set aside under federal prisoner issue if satisfies the AEDPA Indians, regard- residence or use tribal Banks, v. standard.” Horn U.S. origin.” term “[T]he less of 190-91. 122 S.Ct. L.Ed.2d [‘Indian reservation’] has come describe (2002).By showing the state court decision lands, federally-protected Indian tribal “contrary clearly to” established fed Congress has meaning those lands which law, surmounts-AEDPA, prisoner eral jurisdic- apart set tribal and federal court then the federal “must habeas e U.S.A., Country, 829 F.2d at tion.” th resolve claim deference without (citation omitted). quotations As requires.” AEDPA Panetti otherwise below, the explain.further term “Indian Quarterman, 551 U.S. (2007); only country” includes reservations but L.Ed.2d 662 Williams, 1495 other lands as well. *18 Major
2. The
Crimes Act
in the same manner as
per
are all other
committing
sons
such offense within the
Major
The
is
ju
Crimes Act
the
jurisdiction
exclusive-
of
the United
of
risdictional statute
the'heart
this
§
18 U.S.C.
States.”
applies
case. It
to enumerated crimes com
parties
agree that Mr.' Mur
by
country.”
mitted
Indians
“Indian
Jacobs,
phy
and
both members of the
the Major
juris
When
applies,
Crimes Act
Nation,
qualify
pur
as Indians for
diction is
exclusively
Negon
federal.
of
poses
Major
Crimes Act. See 124
Samuels,
99, 103, 113
sott v.
507 U.S.
S.Ct.
1200;
P.3d at
Aplt.
20;
see also
Br. at
1119,
(1993) (“[Federal
of
reservation, shall be
what
any
of
Indian
no matter
limits
Reservation and
Indian
laws,
in the
tried
subject to the same
plots
to the
of individual
happens
title
manner,
in
courts and
the same
same
area,
its
block retains
within
entire
are
subject
penalties
the same
explicitly
Congress
status
reservation
until
committing any of the
persons
all other
Celestine, 215
(citing
otherwise.”
indicates
juris-
crimes within the exclusive
above
285,
93)).
S.Ct.
30
U.S. at
of the United
diction
States.
Thus,
cur-
9,§
at 385.
unlike the
23 Stat.
Country
3.
Indian
coun-
law,
applies
“Indian
rent
1948, Congress
Major
amended
crimes
original Act
try,”
applied
of
“with-
Act and
the definition
in federal
Crimes
codified
committed
territories
of
Unit-
any
country.”
the boundaries
Act of June
See
“Indian
any
States,
and within the limits
645,
757;
ed
683,
Alaska
62
ch.
Stat.
added);
(emphasis
reservation.” Id.
Indian
Gov’t,
Village
Tribal
v. Native
Venetie
118
Kagama,
v.
see also United States
948,
520, 528-30,
522 U.S.
118 S.Ct.
1109,
377-78, 383-85,
375,
6 S.Ct.
U.S.
(1998)
case-
(discussing term’s
L.Ed.2d 30
(1886)
Act
(discussing original
L.Ed.
(discussing
Cohen
origins);
at 189-90
law
constitutionality).
upholding its
codification).
definition, Con
Within the
late nineteenth
In cases decided
con
gress included
boundaries-based
centuries,
early twentieth
the Su
developed in
cept of reservations that had
Major
explained
preme Court
that
Major Crimes
case law
under
Act
committed
applied to crimes
Crimes
1151,
§
“Indian
Act.23 Under
U.S.C.
reserva
within the boundaries of Indian
country” means:
regardless
ownership
tions
(a)
any
limits of
all land within the
were
particular land on which the crimes
jurisdiction
Indian reservation under
Celestine,
сommitted. See United States v.
Government, not-
of the United States
278, 284-87,
93, 54 L.Ed.
215 U.S.
30 S.Ct.
any patent,
withstanding the
issuance
Thomas,
(1909);
United
v.
States
and,
running
including rights-of-way
585-86, 14
426,
577,
Courts do
Court’s
discussed be-
low,
its
Congress
power
determining
Congress
to dises
whether
in-
exercised
has
or
De
or
tablish
a
to disestablish
diminish a reser-
diminish
tended
reservation
States,
404, 413,
against
presumption
dises
v. United
391 U.S.
Indians
(1968) (quotations
diminishment
S.Ct.
L.Ed.2d 697
accords
tablishment
omitted);
Bourland,
general principle
an
“to abro
South Dakota v.
intent
also
gate
treaty
lightly'
modify
a
not to be
S.Ct.
(1993).
imputed
Congress."
Tribe
L.Ed.2d 606
Menominee
pursued
developed
Congress
Congress
pursued
vation
after
policy
allotment
on a national scale in
policy known as allotment.
the 1887 General
Allotment Act. See Act of Feb.
ch.
setting
Following decades of
aside
law,
388.28
however,
Stat.
That
did
“large sections
the western
States
not
all
affect
Indian tribes and reserva
reservations,”
...
Territories
for Indian
tions. The Creek Nation
was
included
century
the late nineteenth
in the
General Allotment Act. See
“the
adopted
that the Indians tribes
view
By
early
Stat.
twentieth centu
orí
abandon their nomadic lives
should
ry, “Congress
dealing
surplus
with the
into
communal reservations and settle
on a
question
land
reservation-by-reserva
economy
par
agrarian
privately-owned
basis,
tion
surplus
with each
land act em
Solem,
land.”
cels of
U.S.
ploying
statutory
its own
language,
policy
This
S.Ct. 1161.27
involved
unique
product
set of
negotia
tribal
dividing, or “allotting,” communal Indian
Solem,
legislative compromise,”
tion and
parcels
into
for private
lands
individualized
467, 104
ownership by tribal
Not inciden
members.
era,
During
allotment
Congress-“an
tally,
policy
“open[ed] up
unallot
ticipated
imminent
demise” of reserva
*22
settlement,”
ted lands
non-Indian
al
468,
1161;
104
tions. Id. at
also
S.Ct.
see
“surplus”
these
lands
be sold
lowing
(“[M]embers Congress
id.
of
voting on the
467,
Id. at
1161.
non-Indians.
104 S.Ct.
surplus
acts believed to a
land
man
designed “to
onto
Laws
force Indians
indi
generation
within a short time—within a
at
allotments
out of
vidual
carved
reserva
tribes
most—the Indian
'would enter tradi
to open
up
tions and
unallotted lands
society
tional American
and the reserva
non-Indian settlement” are often referred
exist.”);
cease
system
tion
would
“surplus
to as
land acts.” Id.
Tribe,
343,
522
Sioux
U.S. at
Yankton
(explaining Congress “as
willing
as follows:
factors are
three
purpose
Solem’s
congressional
specific
tion a
pas-
with the
diminishing reservations
First,
courts to examine
Solem instructs
Rather, it
every
land act.
surplus
sage
purportedly
of the statute
dises
the text
surplus
that some
land
law
is settled
diminishing
reservation.
tablishing or
reservations, and other
acts diminished
proba
most
Statutory language is “[t]he
acts did not.
surplus land
congressional
intent.” Id.
evidence
tive
468-69,
Solem,
104 S.Ct.
“Explicit
465 U.S.
reference
470,
inquiry,
...
disestablished the Creek
“[t]here are
limits to how far”
Reservation.
“go
courts can
to decipher Congress’s in
Because the crime occurred in Indian
any
particular surplus
tention
act.”
land
country,
jurisdiction.
lacked
We
Oklahoma
472, 104
“Throughout
Id. at
S.Ct. 1161.
therefore reverse the district court’s denial
inquiry,”
any ambigu
courts must “resolve
of habeas relief and remand with instruc
ities
favor of the Indians” and remem
grant
tions to
Murphy’s application
Mr.
ber that disestablishment and diminish
a writ of habeas corpus, under 28 U.S.C.
lightly
Hagen,
ment are
to be
found.
§ 2254
.
S.Ct. 958. The “rule
vived.”
tude
ment,
reservation disestablishment and diminish-
tive law of Indian
by
ment and diminishment cases.
the benefit of the
420 U.S. at
“substantial
“broadest
“that the old reservation boundaries sur
courts
*24
Having
for the
we turn now to our
are “bound
Solem,
legal ambiguities
addressed
possible scope”
Indian tribes” to conclude
465 U.S. at
[*]
Indians”
country
III. DISCUSSION 2005 analysis Our addresses three issues: Supreme Court decided Solem (A) clearly Whether there was estab- 1984, more than two before the decades as by lished federal law determined Mr. Muiphy’s OCCA decided case. Even in Supreme Court when the OCCA addressed 1984, recognized the Solem Court jurisdictional Murphy’s Mr. claim. con-We three-part applied framework it was not a clude the Solem framework constituted development new in the law. The Solem clearly law. established explained precedent already its (B) fairly analytical Whether the OCCA rendered a deci a “established clean struc- contrary clearly sion deciding this established ture” for al- whether 922 (8th 1999) (explaining provides Cir. Solem 465 U.S. at borders.
tered a reservation’s
interpretation”);
pre-Solem “the
rules
The Court’s
standard
470, 104
S.Ct.
(“The current
Yazzie,
at
discussed
F.2d
1395
factors
909
relied
decisions
summarized
disestablish
has been
analytic
reservation
structure
to assess
Solem
See,
Rosebud Solem,”).
e.g.,
high courts.
and diminishment.
did state
ment
So
587,
854,
Tribe,
framework and
(discussing performance
when comes reservation disestablish- Arguments 2. The State’s ment—the issue before us. acknowledges Supreme
The State Despite arguments its that there is no Court applied has to law, Solem framework clearly established the State’s- brief acts, for “surplus provided land recognizes Solem is It controlling. defends large sale of areas of land settle white the substantive of the OCCA’s correctness ment,” that, argues' respect but it to decision reference three-part to Solem’s Nation, Congress Creek allotted’ al argue Nowhere test. does State that most all of the Reservation mem legal tribal other some framework applies. Aplee. point Br. at bers. 46-47. This has * * * * nothing to do with Solem whether the’ clearly established Because. though framework it applies, does suggest governs, Mr. Murphy’s law Congress did intend to disestablish country jurisdictional claim, proceed to we Creek The offers no Reservation. State step 2254(d)(1) next of the inquiry: explanation why proportion land whether the OCCA rendered decision allotted tribal members relative “contrary was to” the Solem frame opened land to non-Indian settlement work. a difference ap makes to whether Solem case, plies. making its disestablishment Decision—Contrary The OCCA B. the- State relies statutes that allotted Clearly Established Federal Law Reservation, the Creek and we discuss Before we address whether the statutes, OCCA’s these laws below. Those like the “contrary Solem, decision was to” con- Solém, statute in onto “force[d] Indians reject—Mr. Murphy’s sider—and thresh- individual allotments carved of [a] out res .,. argument old the OCCA failed to opented] up ] unallotted ervation adjudicate his reservation claim on the Solem, lands for non-Indian settlement.” then merits. We consider whether U.S. at Whether “contrary OCCA’s merits decision to” Congress disestablished the-Creek Reser clearly established Solem framework through vation those statutes is the kind of discussed above. We conclude was. question the Solem built framework was answer. 1. The OCCA’s Merits Decision argues
The State also
that Congress, in
following
entirety
is the
of the
lands,
allotting
addition to
“took
Creek
jurisdictional
OCCA’s
discussion
is-
steps
complete
toward[]
number
respect
sue with
the Reservation:
political
Nation as. a
.abolition
entity.” Aplee.
46;
issue,
Br. at
see also id.
remaining
proposition
under
Below,
one,
arguments
we consider the State’s
ques-
or not the
whether
land
political
about
they
part
dissolution
relate to
tion is
of a Creek Natio'n reserva-
But
disestablishment.
tion that
never been
has
disestablished
explanation
legal
offers no
part
dependent
author-
of a
or is
Indian commu-
-
ity for why legislation dealing
nity.[29]
with a
Unfortunately,-
the District
mentioned,
already
Murphy pur-
part
29. As
diction before
This
the OCCA.
*26
juris-
country
addressing
Murphy’s
sued three
for Indian
theories
OCCA’s discussion
Mr.
decided,
historically
traditionally,
is a con-
the Assistant
upon
based
towns, or
tribal
urging,
federacy
that
these
autonomous
Attorney’s
District
Talwa,
organ-
political
each with its own
beyond
scope
were
questions
though
leadership.”[31]
ization and
evidentiary hearing, even
if
to determine
clearly asked the Court
took
both
Dell[32]
Ms. Blackwell and Jeff
country
question
tract in
was Indian
that
bound
position
the historical
§
18 U.S.C. 1151.
under
in
of the Creek
remained
aries
Nation
after the
lands
as it
was alleviat
tact even
various Creek
may,
Be that
the error
subjected
process,
allotment
allowed Petit
were
when the District Court
ed
position
no
is
that
an
case
cited for the
counsel to make
extended
ioner's![30]
testimony
Creek allotments remain
proof regarding
individual
offer
pre
part of an overall Creek reservation that
that
have been
and evidence
would
today.18
that
exists
questions
on these
had
still
sented
two
Accordingly, we
given.
however,
been
opportunity
redundant,
18 It seems
if the
find the error
harmless. Even
was
lands as both a reservation and
treat
admitted, it
had
is insuffi
evidence
been
clearly
an allotment.
Section
the tract
us that
cient
convince
distinction between
two.
makes a
qualifies as a
question
reservation
authority
Indi
point
The best
on this
is
dependent
community.
Indian
U.S.A.,
Country,
Inc. v. State
an
proffered expert,
Oklahoma,
Monta
Petitioner’s
treats
829 F.2d at
Blackwell,
by
stated
affidavit
Sharon
Creek Nation lands as a “reserva
However,
a formal Creek
was never
tion” as of 1866.19
the Tenth
“[t]here
practical
question
Nation ‘reservation’ but
Circuit declined
answer
purposes”
treaty language
certain
was
of whether the
boundaries
exterior
to a
under
Creek Nation have been dises
“tantamount
reservation
the 1866
Nation,
Thus,
expressly
refused
ex
Federal law.”
the “Creek
tablished
¶
1151(a)
out,
argument
pointed
§
fol-
13. As the OCCA
she stated
reservation
under
Id.
theory
rejection
was never a
Creek Nation
lowed its
of his allotment
formal
"[t]here
”
1151(c).
§
‘reservation’ because the Creek Nation
under
We omit the OCCA’sdiscus-
community”
"dependent
"acquired the land at
issue in this case
sion of the
1151(b)
treaty
theory
through
with
Id.
under
that issue is
the United States.”
because
¶
although
Muiphy
dispute
no
Creek
not before us.
Mr.
But there is
And
reservation;
again
theory
ap-
agrees
raises the
in this
allotment
had a
the State
Nation
peal, we do not
issue because we
Aplee.
reach that
intact in
Br. at 75 n.25.
Rather,
agree
him
dispute
with
that the crime occurred with-
is whether
has
in the Creek Reservation.
In Ms.
Reservation.
disestablished
opinion,
Blackwell’s
exterior territorial
"[t]he
of the Creek Nation were not al-
Murphy as "Pe-
boundaries
The OCCAreferred to Mr.
congressional
acts
the turn
tered”
around
titioner.”
¶
century.
Aff. 21.
of the twentieth
Blackwell
(Creek)
Muscogee
"the
Nation
She concluded
part
proof
of his
on the
31. As
offer of his
that “re-
issue,
not been
has
disestablished”
Murphy
submitted an
ownership
non-
gardless of title
Indian or
Blackwell,
attorney
from Ms.
affidavit
Indian,
occurred]
[tract
crime
where the
practic-
experience
two
more than
decades of
meaning
country
Fed-
within the
ing
Department
Indian law
with the U.S.
¶ 22.
3-4,
¶¶
eral Law.”
Interior. See
Aff.
Blackwell
Record, Vol.
at 151. Ms.
Post-Conviction
Dell,
Realty
"an
Blackwell
of land where the
Assistant
Officer
stated the tract
32.Mr.
Nation,
opinion on
crime occurred
the territorial
the Creek
rendered a title
"falls within
(Creek)
Muscogee
boundaries of the
Nation.”
behalf of the State.” 124 P.3d at
*27
—
press
opinion
regard
denied,
in that
U.S. —,
concern
cert.
1226,
137 S.Ct.
(2017).
ing allotted Creek lands.
at
See id.
975
19 The case finds the term “reserva-
can
court
defer. See
v.
tion,”
purposes
of defining Indian
Stouffer
Trammell,
(10th
738 F.3d
Cir.
country, “simply refers to
lands
those
2013)
that,
(explaining
when AEDPA does
intended to reserve
not apply,
legal questions
“[w]e consider
for a
tribe and over which
novo,
de
and factual findings,
any,
if
primary jurisdiction
intended
to rest
error”).
clear
govern-
the federal and tribal
ments.”
Mr. on the sentence, claim on the argues any court’s last merits the OCCA absence procedural indication or adjudicate princi to his state-law refused reservation claim ples contrary.” Id. at on the merits. State maintains added); (emphasis see also OCCA Johnson v. the, decided reservation issue on Williams, 568 U.S. merits because it Murphy’s considered Mr. 1091, 1094-96,
evidence,
(2013).
insufficient,
opinion
see id.
state-
see also
Woodford
certainly
contrary
court
be
(2002)
decision will
lished.”). The OCCA called Indian Coun They—No.- THE STATE: U.S.A., try, authority” the “best Arg. argues The State Oral 46:00-46:13. position there is still a that Creek Reser not contrary OCCA’s decision was Indeed, vation. P.3d we held Solem, wrong But applied the OCCA Reservation, there is still a Creek but we Murphy’s adjudicating law in reserva Mr. had no occasion determine whether “contrary tion Its claim. adjudication Reservation’s 1866 remained boundaries to” clearly law. established n.3, (hold intact. See F.2d at ing lands at issue “still their reser arguments retain c. The State’s vation of 18 meaning status within State, the OCCA’s mis repeating 1151(a)”); § (setting id. U.S.C. n.5 reversing against presumption take boundary question). aside disestablishment, Murphy argues present occasionally Court has evidence “failed Aplee. federal habeas courts for conclud not faulted did intend disestablishment.” added). ing (emphasis Br. But under state courts issued decisions that were at 48 Solem, “contrary to” law federal not test. Solem and federal when the is every applying it that a res give presume court the “benefit case failed See, e.g., doubt” to court. Holland ervation to exist unless the state continues court’s of the correct As state identification otherwise. demonstrated legislated has legal the reason above, only ignored governing standard and the OCCA not application of that standard does the its presumption. this So ableness reversed statutory two in to the facts are distinct same will make the State. We mistake unreasonably The OCCA did not quiries.”). here. Solem, it apply didn’t at all. apply argues further that Mr. Mur- The State us that our The State reminds review establishing fed- phy “bears burden AEDPA is to the record under limited under the burden jurisdiction, and eral no OCCA. But we have need before the course, the burden AEDPA.” Id. Of expand the record. The State acknowl jurisdiction—our jurisdic- showing evidentiary edges that the state-court Murphy. on Mr. proceeding—is tion in this hearing Murphy’s status determined Mr. jurisdic- earned that burden. Our He has as well location precise as an Indian as the 2253(a), proper tion under U.S.C. *30 crime. The OCCA relied on these of the (c)(1)(A), because he secured COAs facts, question and we do not them. Our appeal. on his under And burden issues requires only compare us analysis to is to ren- AEDPA show that the OCCA sadjudication Murphy’s of Mr. OCCA’ to” “contrary decision that dered a Supreme clearly claim with the Court’s clearly has. established law. He. federal comparison law. reveals established That argues that our deference The State to contrary the. OCCA’s decision Solem. apex”' OCCA “at its when to the should be put Murphy Mr. the issue whether clearly general law states a established Reservation the Creek had been disestab Aplee. Although the standard. Br. at 52. OCCA, squarely before the but lished general-the is correct that “the more by ignoring and court decided claim leeway ... state rule at issue the more contradicting Solem. Its thus decision was in case- reaching courts have outcomes ... “contrary clearly Feder established Lett, determinations,” by-case Renico v. law, Supreme by as determined al 1855, 559 U.S. 130 S.Ct. 2254(d)(1). § 28 U.S.C. Conse Court.” (2010) (brackets quota and L.Ed.2d 678 jurisdictional must quently, we review his omitted), although tions we further without AEDPA See Mil claim deference. supplies general agree Solem standard ton, (explaining F.3d at 670-71 application meant to various disestab 2254(d)(1) § standard” “satisfaction cases, these lishment diminishment prisoner not entitle the to habeas does not deci do entitle OCCA’s principles “effectively but does remove[] relief argument sion deference. The State’s prohibition on of a AEDPA’s the issuance 2254(d)(l)’s ap § concerns “unreasonable writ”). apply now the Solem frame We clause, not plication” that clause does analyze jurisdiction Mr. Murphy’s work because, play come into to benefit here al claim. from the wide berth courts give standards, general in applying state courts Jurisdiction C. Exclusive Federal actually apply court
the state
must
Trammell,
Murphy has
AEDPA’s
v.
803 Mr.
overcome
See Eizember
standard.
relief,
(10t
2015) (“The
1129,
to habeas
we must
h
barrier
now
F.3d
Cir.
jurisdictional
that a
his
claim de novo.35
Supreme
long recognized
Court has
decide
regarding
determining congressional
Supreme
applied,
intent
has
with-
“[T]he
Court
comment,
Wyo-
boundary diminishment.”
a de
review in
novo standard of
out
(1)
section,
by
begin
addressing
granting”
this
bar to
relief because the state
legal authority. Although
additional
our
court
apply”
“failed to
legal
the correct
test,
evaluation
the OCCA’s
under
decision
the federal habeas court “can deter
clearly
AEDPA was
principles
limited
established mine the
necessary
grant
re
lief”); Williams,
law
Supreme
406, 120
Court
decided before Decem
authority, recap relevant we Nation, public provides impor lands to “the domain.” Creek period the critical in this tant context-for The in Parker featured statute none Id. years around turn case—the Rather, provided hallmarks. these Id. (3) Finally, century. apply twentieth government survey appraisal of cer and con three-part framework Solem’s Id. lands and for sales to non-Indians. tain Congress has not diminished that clude Court ear contrasted statute with Reservation. disestablished centuiy lier treaties between nineteenth United that States Omaha .Tribe Background Legal 1. Additional lands and had other “termi addressed Supreme Court’s and our review the over jurisdiction We the Tribe’s their nated applications most recent of Solem. Id. at unequivocal land terms.” court’s omitted). Court
(quotations concluded authority diminish Supreme a. Court not the Res did statute ervation’s Id. boundaries. Parker, u Nebraska unanimously to the recommitted Turning to second Solem step, — “well Solem framework. settled” Parker the “mixed his- Court determined S.Ct. 1072, 1078, 194 —, L.Ed.2d passage law’s around the torical' evidence” (2016). Congress did not The Court held the lack clear tex- could “overcome diminish the Omaha Reservation . signal tual that intended to di- the land issue re Nebraska and that Id. To di- minish the find reservation.” Id. at part of the Reservation. mained minishment, evidence must step-two Con only The Court reiterated held, widely “‘unequivocally reveal[] gress of its can land divest understanding contemporaneous its do must be “and intent so status re- affected reservation shrink as a would ” light Id. Parker clear.” at 1078-79. shed (em- legislation.’ sult of the próposéd *32 how the further Solem factors interact and Court) phasis by (quoting Parker. added importance discerning the of underscored 1161). Solem, 465 U.S. at text, congressional intent statutory from Floor of Con- members statements which is “the first important most ruled, gress ways, the Court cutting both step” of the Solem framework. Id. at 1080. plain far from clear evidence “are the (quotations required.” Id. of diminishment examining at Before thé 1882 statute- omitted). issue, the precedent Court reviewed its “[c]ommon and identified indica textual step considered three— The Court then congressional tions” of a alter intent to later of the area its the treatment Id. at 1079. boundaries. demographic history. Step- Id. 1081. of diminishment” include: “[H]allmarks evidence, explained, three the Court (cid:127) explicit to cession or sur references to “might finding a reinforce diminish- interests, of tribal render or based on the ment nondiminishment (cid:127) statute, congressional commi text” but “never”- has the unconditional the t solely on this third compensate ments to a Court consider- the tribe with “relied (alteration Id. total ation
fixed sum the surrender find diminishment.” omitted). lands, quotations opened tribal claims to law, pre-finality result. we would still the same reach step-three recently, evidence in Parker Most in Wyoming EPA, (10th
strongly favoring helps 2017), diminishment illus F.3d 861 applied Cir. we Sa significance places the in step- trate Solem lem’s approach” and “well-settled conclud Parker, statutory one text. “the Tribe ed that Congress diminished the Wind entirely was almost absent from dis the River it Reservation when enacted a 1905 puted territory years.” for more than 120 agreement government the federal negoti regulations Id. any It did not enforce ated with the Eastern Shoshone and . area, office, the nor it did “maintain Arapaho Northern Tribes. Id. at services, provide social tribal host cele brations or Id. For ceremonies.” more “hierarchical, Applying the three- years, than a govern the federal hundred step Solem, began framework” of belonging ment treated lands as statutory text. Id. heldWe 869-74. Of people living Nebraska. Id. following language Congress’s evinced site, disputed the town were most : intent .to diminish the Reservation Tribe, and, associated with since belonging said Indians on the Sho- early century, less than two twentieth Reservation, shone or Wyo- Wind River percent of the Tribe’s members lived ming, for the consideration hereinafter disputed Id. area. named, cede, grant, hereby do and relin- history This nonetheless insuffi quish States, right, thé United all cient, said, the Supreme Court to “over title, they may and interest which have text, come the which is statutory devoid to all the within lands embraced said any language Congress’ intent indicative reservation, except the lands within and (quotations to diminish.” Id. at 1082 omit by. following lines bounded ted). Despite justifiable “compelling” expectations of non-Indian settlers' stem omitted) Id. (quoting at 870 (emphasis Act ming “from the failure to assert Tribe’s- March ch. 33 Stat. jurisdiction” time, long period over 1016). “express language of We called this expectations Court held non-Indian such notwithstanding cession” absence “cannot diminish reservation boundaries.” “convey.” Id. at “sell” or 871.37 words “Only power Id. has the di magic “There are no cession re- words And as minish Parker reservation.” quired Rather, find diminishment. clear, makes looks first be, statutory language, may whatever statutory and foremost to text when at must express congressional establish an tempting Congress’s discern intent. (brack- purpose to Id. at 869-70 diminish.” *33 omitted).' ets and quotations authority Tenth
b. Circuit Turning step tо historical con- two—the This court has addressed Indian reser text surrounding of the Act— passage the vation disestablishment diminishment we found confirmed] “further See, e.g., issues numerous occasions. intended to River Res- (10th diminish Wind
Osage
Irby,
Nation v.
F.3d 1117
opinion).
ervation.”
A
1204;
at
2010);
Tribe,
(majority
Id.
Cir.
423 F.3d
Shawnee
1387;
history
attempts
to
Yazzie,
congressional
failed
Indian Tribe v.
F.2d
Ute
(10th
Utah,
1985)
Big
sever
River
(en
the area north of the Wind
Cir.
a.
homeland and
relo-
forced
right
occupancy
usual
with the
cation
States,”
fee
the United
United States
Nation,
The Creek
once
Nation
exercised do
*34
681,
(1935);
day
also
present
main over much of
Alabama
Arkansas 1897, Congress imposed In several to force measures Nation’s Creek push e. The allotment for agreement policy. Con allotment 1890s, “During the the white 1880s and (1) gress “provided] body fed Territory population within Indian Territory, eral includ law Indian dramatically.” grew Id. at 977. =“[T]he laws, incorporated ed the Arkansas was to by the were frustrated newcomers white (2) race”; irrespective of apply broadened lands, Indian and tenure of the communal thereby jurisdiction, court federal divest Congress to up the pressured break tribal ing juris Creek tribal courts exclusive base, freely attach individual land Creeks; alienable involving only diction over cases land, eventually and create a title (3) subjected legislation pres Creek state.” Id. new omit (quotations veto. idential ted). mentioned, objectives, already As others, policy law, Act,
among this allotment An 1898 the Curtis continued ownership tribal and to campaign. “were land end “abol- allotment private ownership, ishing] system the view the existing court substitute rendering] then-existing private ownership by tribal individual Indi laws their Id. It ans better advance unenforceable courts.” would assimila self-supporting “provided our forced allotment tion as members ownership of tribal with- society relieve the Govern termination land Federal agreed supervision of out tribal unless the tribe of the need consent ment continue (Creek) Nation, Muscogee Cheyenne N. Tribe v. allotment.” affairs.” Hol Indian lowbreast, n.1, 851 F.2d U.S. 650 & (1976) (discussing 48 L.Ed.2d f. Allotment aftermath Act). Allotment The General Allot
General Nation Act to the Civi “In the Creek apply ment Five finally did Tribes, U.S.A., Country, agreed to the tribal lands.” allotment lized Parker, 566-68, 216; Con- 23 S.Ct. see also Court decided n.l; Woodward, unilaterally abrogate gress S.Ct. at can treaties with 304-05, 764; Wolf, 198 & Cohen at n.121. nations. Lone U.S. at
935 U.S.A., Country, Indian F.2d at 978. apparent “[I]t 829 that the affairs of the Original Agreement 1901 Allotment' up by tribes not be could wound the date Agreement” (“Original “Agreement”) set,” or “Congress early in 1906 debated e ” tribe, except provided: lands of said “All th ‘Five enacted Tribes Act.’ provided, among be as herein allotted shall 1876, (citing 26, ch. 34 Stat. (Apr. 137 give ... as to the citizens the tribe so 1906)). equal share of the each an whole value Act, In the Tribes ex “Congress Five ” ¶ Original Agreement, .... eh. 31 pressly any plans delayed to terminate the 861, (Mar. 1,1901). “Although Stat. tribes, provided govern tribal majority of Creek Nation
vast
were
lands
hereby
ments ‘are
continued
full force
sold,
some
allotted
lands remained in
Country, U.S.A.,
and effect.’” Indian
ownership
treaty-
original
tribal
under the
28,
148).
(quoting
F.2d
Stat.
Country,
patents.”
fee
Indian
based
.¿ever
gov
dissolved the Creek
U.S.A.,
Agreement
As the termination date
however,
special
courts
succeed
United
“much remained to be done.”
would
Harjo Kleppe,
v.
territory
in the Indian
F.Supp.
States court
Harjo
(D.D.C. 1976),
sub
arising
respect
cases
under the Con
nom.
all
aff’d
Andrus,
(D.C.
1978).
laws,
stitution,
States.”
*37
addition,
courts “were
Nation
its members.
In
new state
the Creek
and
That
exists,
territory
recently
the Indian
courts with
Nation still
and has
succeed
been
remaining
to the
nonfederal
respect
authorized
resume some
its former
provided
enabling
Seber,
Id. “The
act also
Cty.
cases.”
Bd.
powers.”
Comm’rs v.
318
Territory
in
718,
laws
force in the
920,
that ‘the
ment over Indians and their right and the State disclaim all required Law i. Public (quotations lands.” omit title such Policy again post-World in shifted ted). in 1907. Oklahoma entered the Union period, II as the War known “termination Proclamation, (Nov. 2160-61 See 35 Stat. era,” as focused on assimilating 16, 1907). ending Indians and United States’ relationship many trust Indian tribes. Away h. allotment from at 92-93. Cohen See in The 1930s saw another shift important law enacted One “Congress prac policy repudiated as 280,” jurisdic “Public Law addressed state passed tice of allotment” the Indian and It assert tion. allowed some states “to lim (“IRA”). Act Atkinson Reorganization jurisdiction and broad ited civil criminal Trading Shirley, Co. country.” Country, U.S.A., Indian 1825, 149 (2001). n.1, 121 S.Ct. L.Ed.2d 889 at 980 (citing 829 F.2d ch. Stat. 588 IRA, Cohen generally at 79-84. The 15, 1953) (codified (Aug. as amended at 18 “self- enacted revitalized tribal 1321-26, § §§ U.S.C. U.S.C. pursuant to government constitutions” 1360)). Public Law U.S.C. “dele to organize “tribes for economic allowed five, six, jurisdiction later gated] to states charters.” purposes pursuant corporate crimes ... most throughout over most (Creek) Nation, Muscogee F.2d at country the Indian within their borders.” from 1442. The Creek Nation was excluded (footnotes omitted).43It at 537 “of Cohen IRA, but, two years later any accept option fered other state the Congress passed Oklahoma Indian jurisdiction,” ing the same until (“OIWA”); Act which covered Welfare subsequent assump “made amendment and, IRA, provided Creek Nation “like the jurisdiction subject to Indian tions con governments corpo for constitutional 537-38; Id. at see 25 sent.” U.S.C. Id.; OIWA, 831, 49 rate charters.” ch. 1321(a), 1322(a), §§ (June 26, 1936). Stat. chose concerning real not to Public a 1943 case Oklahoma Oklahoma use Law taxes, jurisdiction. to assert
estate Court acknowl- 280 officials because, regarded unnecessary the law edged continuing the Creek vitali- Nation’s view, already Oklahoma ty: “Thus far has not terminated their full California, Alaska, six states See id. at 537 nn.44-45. 43. The are Minnesota, Nebraska, Oregon, and Wisconsin. exist, at over Indians their lands. ues to least in
jurisdiction some form. The U.S.A., Country, F.2d case arose when Oklahoma tried to tax a position But “[t]he n.6. State’s 1953 bingo operation located on Creek Nation unnecessary Public Law 280 was Okla land that had never been allotted ... rejected by homa been both fed [has] still held Tribe. 829 F.2d at (citing state courts.” Id. Tenth eral and argued Oklahoma the site was not a reser- cases). Circuit and Oklahoma Oklahoma vation subject and therefore to the State’s following tribal has obtained consent rejected argu- taxation. Id. at 973. We the 1968 amendment has thus never *38 explained ment the and site at was issue jurisdiction acquired country over Indian “part original of treaty the held lands still Cravatt, through Public Law 280. See Nation, by the dating Creek with title back (“The at 279 State of has P.2d Oklahoma to concluded in pat- treaties the 1830s and pursuant to never acted Public Law 83- 1850s. ents issued These his- lands Klindt, (quoting 280.” State v. 782 P.2d torically country were considered Indian (Okla. 1989))); App. Crim. and still their retain reservation status at 537-38 & Cohen n.47. meaning within of 18 U.S.C. began termination era to fade 1151(a).” at in- Accordingly, Id. 976. we policy 1950s as Indian shifted late Oklahoma tax. Id. at Our validated the 987. again self-government toward tribal however, holding, was limited. Because 93. self-determination. See Cohen at that case concerned land had never been Tribe, still allotted held we A new j. Creek Constitution twice made clear—no had—as we cause OIWA, In Creek Na- under Congress decide whether disestab- adopted “providing tion a new constitution Reservation’s lished the 1866 exterior separate govern- for three branches n.3, at 980 n.5. boundaries. ment, including judiciary.” Muscogee question. confront that We now (Creek) Nation, In 851 F.2d at sought funding tribe from when the Applying Solern (“BIA”) for Bureau of Indian Affairs system, con- its court the D.C. Circuit apply the We must Solem framework question the Creek fronted whether Congress whether has determine disestab- at all operate system Nation could a court Creek If Res- lished the Reservation. Congress’s light earlier abolition intact, the ervation’s boundaries are still tribal courts. The D.C. held Circuit Br. Aplt. crime occurred within them. See repealed elimi- that OIWA had the earlier 20; at Br. at 11-12. ar- Aplee. The State Id, courts. 1444-46. nation Creek at however, gues, that disestab- (Creek) Muscogee has the Nation “[T]he early Reservation lished the Creek in the with civil power establish Tribal Courts century. twentieth Mr. and the Murphy jurisdiction, subject, criminal disagree. Creek Nation course, imposed by to the limitations stat- not conclude has We generally applicable to all tribes.” Id. utes omitted). disestablished Creek Reservation. (emphases at 1446-47 statutory important most evidence—the Country, k. Our decision in Indian reveal text—fails to disestablishment U.S.A. Instead, one. the relevant statutes step affirmatively Country, language recognizing contain held U.S.A., contin- the Creek Reservation the Creek Nation’s borders. The evidence Act, Con- In that 1893 THE understanding and la STATE: contemporaneous they appointing gress were steps said history, consider which we
ter negotiate Commission Dawes three, is falls far short rhixed and two. necessary in means in whatever congres Tribes reveal[ing]” a “unequivocally embracing the Parker, to create a State order sional intent disestablish. to substitute Territory original) (quo (emphasis . governments govern- Solem, the tribal 465 U.S ting 1161), application Sa our ment. Because Congress has framework shows
lem happen. that didn’t THE But COURT: Reservation, the disestablished The—well, I that’s think THE STATE:' occurred in this case within crime today. here arguing about we’re what The State boundaries. Reservation’s Well, go tto let’s THE COURT: jurisdiction accordingly lacked Oklahoma Murphy. prosecute the disestab THE COURT: Where’s *39 Statutory Text' Step a. One: given in the Act? You haven’t lishment anything you or said your in brief us the Creek Reservation argues The State any that a‘ct any language from today statutes that a series of not survive did that And isn’t shows disestablishment. the and created State allotted Creek lands Solem factor? the first “acknowledges The State Oklahoma. Congress Well, Honor, no act of contains yes, that relevant Your THE STATE: disestablished expressly language which to use the [Congress have not] does through the Creek Nation the .... words or ‘relin- as ‘cede’ of such words use Well, okay, they if even THE COURT: attempts It at 57. Aplee, Br. quish.’” you give us Can use the words. don’t on the collec- based show disestablishment examples? some enacted eight different laws weight of tive Of course— THE STATE: 1893 and between Counsel, on tlíe same THE COURT: the argument; we whether At oral asked looking for I think ... what we’re point, statu- any particular relying on was State in given Supreme other is has been what for its any in these laws language tory on they have seized cases where step-one argument: or ‘public it’s domain’ language whether your you find THE do COURT: Where or ‘cede’ it’s the word whether whether statutory language that the strongest Those—there lump-sum payment. a it’s or was diminished Creek Reservation acts, in those a sentence are words disestablished? you can show asking what we’re is the acts that a us sentence You start before words THE STATE: have equal that talking about are you’re ... Act. Allotment a rather than those words equivalent up set passed law Congress which general summary sort an answer? .the Dawes Commission. language. looking specific for We’re statutory I COURT: asked THE entire THE Other than the STATE: general a language, a overview ... I happened, of what acts is context cannot. any these Where in statute. there, are acts argue I still that the themselves language that disestablished -but, not, Na- sufficient, Osage if under Reservation? tion, you step-two look us .present when at the evi- does not with any particular here, it’s overwhelming. statutory language to analyze. dence Our inde pendent review laws Well, your has not uncov THE COURT: so answer provision might you ered which the any language? don’t have State that . rely, either specific STATE: I THE do not have say that I can look this section at and Assuming State’s cumulative-effect is— belongs in argument step one where we argument THE COURT: so And text, opposed consider to step two just I that heard it’s context. is that context, we consider proceed where Your word. (i) eight review each statutes Correct, THE STATE: look at all you If on, paying particular relies State attention together, of the acts which the Original Agreement, Allotment I you Court has said can’t— do—no can (ii) analysis then conduct our step-one you language look at specific when on those laws. The based statu- absence allotment, provides tory language any of these acts dises- ‘cession,’ it use words [like] doesn’t tablishing Reservation us leads sum, provide for a those doesn’t fixed to conclude failed at the “ha[s] of things happened sorts have Parker, first most important step.” you way eases. But when go other all fact, S.Ct. at 1080. In step-one to when passing back started recognized evidence shows Act, up it’s very led to the 1901 acts of the Creek existence Nation’s borders. that'their purpose clear substi- inqui- attempts the State’s to shift the And *40 for government a tute the tribal State of ry questions into title governance and government put of the Five and the area unavailing. are Tribes under State law. Arg. exchange
Oral
50:23-54:07.
i.
This
The statutes
position
aligns with the
taken
“the
eight
the State’s
statutes
discuss
We
Aplee.
step
brief.
Br.
At
State’s
at 57.
chronological order.
one,
any partic-
the
rely
State does not
on
statutory
eight
on all
ular
text
rather
1)
ofAct March
ch.
general
acts in
because it
a
“have
does
(“1893 Act”).
27 Stat.
specific
any
séction” in
that accom-
law
first
our
to an
The State
draws
attention
Arg. at
plished disestablishment. Oral
providing money
law
appropriations
53:18-21.
government
treaty
to fulfill
the
question
argu
We
whether the State’s
obligations
throughout
with
tribes
eight
of
ment based
the overall thrust
respect
country. With
to the Creek
the
step-
laws
a
different
deserves to be called
Nation,
provided funding
1893 Act
the
argument.
one,
step
At
start with
one
“we
for,
to
pay
from
1866 to
treaties
Parker,
statutory text.”
S.Ct. at
the
annuities,
among
things,
other
blacksmith
Solem,
(emphasis added); see also
steel,
iron,
on other
interest
ing,
(“The
470, 104
most
funds. See
cases would be transferred to the United
*42
facilitate a
of
transfer
title from the Creek
States court in the
Territory,
and
Nation
26,
generally
tribal
to its members
§§
laws would be
individu
unenforceable.
28,
ally.
provided
at
It
belonging
Stat.
504-05.
that
lands
“[a]ll
instructed
Secretary
tribe,”
the
of
to
(“Secretary”)
except
the Interior
the Creek
for town sites
stop
to
directing
payments
federal
to tribal
and lands
for public purposes,
reserved
governments
begin
and to
paying
apрraised
“among
should be
individu-
and allotted
The
proposed
45.
Curtis Act
ratify
also contained a
but the Creek Nation did not
the
agreement
government
agreement.
between the
A
agreement
federal
different allotment
providing
and the Creek Nation
for the allot
was
in
and we discuss it in the
reached
lands,
§
ment of tribal
30 Stat. at
next section.
514-
¶¶ 2-3,
assigned
principal
’The
chief was
Tribe’s
of the tribe.”
Stat. at
the citizens
e
transferring
from
citizenship rolls
the task of
titl
the
Tribal
deter
862-63.46
allottees. ¶
eligibility for an
Tribe to the individual
al
mined
individual’s
¶¶ 3,
862-63,
869-
at
to the
conveyed
31 Stat. at
Stat.
Each deed
lotment.
867-68.
title,
right,
The
States would bear the
of the
70.47
United
allottee “all
and interest
survey, platting,
disposi
of “the
of all
costs
and
and
citizens in
Creek Nation
other
lots, except
where town
tion”
authorities
to
in
allot
and
the lands embraced
[the]
¶ 34,
¶ 23,
those efforts.
at
undertook
Stat.
The
was
¶ 7, 31
at 863-64. A five-year
Stat.
im
restric
Creek citizens who had built
random.
period
gener
applied
tion
particular
allotted lands
possessed
provements
lands
¶¶
ally,
3, 5-6,
21-year
applied
restriction
a
a
select those lands. See
could
subset of an allottee’s
acres
Agreement
The
lands—the
provided
Stat.
862-63:48
a homestead. Id. Creek citizens
dispute
citizens
selected as
resolution when Creek
allotments,
rent their
right
to select certain were allowed to
sub
contested their
,
¶
¶ 37,
ject to
tracts.
6
restrictions.
Stat.
Agreement
“citizen”
on their behalf
best
46. The
defined
as "a
for selection
"the
863;
¶ 4, 31
Muskogee
parties.”
... of
tribe
member
or nation
such
Stat. at
interests of
Stat,
1,¶
863-64,
Act
¶¶
of Indians.”
see also
b)Town
general
sites
served
from the
allotment”
¶ 24, 31
at 868.
scheme.
Stat
Most
Agreement
The
excluded “town sites”
.purposes:
reserved lands were for tribal
¶¶ 2, 24(a),
from allotment.
at
Stat.
homes,
orphan
Creek
and
schools
¶
“in
868. Towns
the Creek Nation” with
¶
24(c)-(l),
cemeteries,
24(m),
868;
at
Stat.
people
“surveyed,
more than
would be
¶
868;
university,
24(n),
¶
Stat. at
Stat.
out,
appraised.”
laid
and
31 Stat. at
¶
courthouses,
868-69;
24(o),
commissions,
at
in
Creek
864. Town
Which
to
wеre
commissioners,
869;
churches
clude Creek
would admin Stat. at
and
schools
¶
towns,
sale of
“for
ister the
town lots
the benefit
24(p), 31
If
outside of
Stat. at 869.
¶ 10,
of the tribe.”
“Any
veyed to the churches at no
ing
legislative authority
Creek
over both
Stat.
at 867. Educational
institutions
unallotted, tribal lands and allotted lands..
Muskogee and other
towns
Creek
“in
¶ 42,
“[A]ct[s],
at 872.
ordi
Stat.
given
purchase
Nation” were
chance
nance[s],
[and]
the Creek
resolution^]”
¶ 20,
lands at
discount.
Stat.
subject
National Council remained
to pres
right
The United States reserved a
approval,
Agreement
idential
but the
rec
in any
Na-
“purchase,
the Creek
town
ognized
government’s
Creek
authority
courthouses,
tion,
jails,
for
land
suitable
regulate
“the
well
lands
tribe” as
necessary
buildings
public
and other
for its
belonging
as lands
use,
after
paying
“individuals
appraised
value there-
Id.;
¶ 19,
allotment.”
see also
(providing
of.”
id.
for
Stat.
regulation,
presidential
over
c)Lands
reserved for tribal purposes
sight,
moneys
or other
property
“the
tribe,
sites,
thereof’).
Agreement
or of
town
the citizens
addition
provided certain other
Agreement
provided
lands would be “re
Creek law
sewers,
gave
Agreement
municipal corpora-
lighting plants,
50. The
water-
construction
works,
¶
authority
tions
to issue
borrow
bonds and
31 Stat. at
schoolhouses.”
money
public projects
such as
"the
*44
responsibilities to
signed powers
of
the
determine issues
descent and dis
would
¶¶ 7, 28,
States, many of
were ex-
tribution.
pened. lands lotment-eligible appraised be would per acre, no In addition to than not includ- providing limited role more $6.50 ¶ 2, government, Agreement ing improvements. 500. The tribal as- Stat. at courts, Secretary already Creek abolished under the also to administer Act, fund, ¶ Curtis Creek schools were were not reestablished. school governed Secretary's at 873. Stat. be under the rules and regulations well as Creek laws” "under ¶ subject Secretary’s oversight. removing "objectionable” to the per- task 52. The Agreement Stat. included a sons from at 871-72. the lands Creek citizens fell to Secretary hiring preference for Creek in teach- Interior and citizens the United ¶ 8,¶ ing positions. 31 Stat. agent. States at 864. Stat.
945
assigned
Supplemental
Dawes Commission was
exclusive
The
Agreement
left
place the
jurisdiction
disputes
planned
to resolve the
dissolution of the tribal
government. It
partic-
required
Creek citizens over the selection of
Secretary,
fol-
¶ 4,
lowing dissolution of
govern-
ular allotments.
of the Creek male and and policies continued the embodied their Creek shall descendants inherit lands Original Agreement. It did not ¶ address the 6, of the Creek Nation.” 32 Stat. Creek Reservation’s except borders to rec- Noncitizen heirs could inherit when there ognize their existence. was no descendent. Creek Id. Anti-encumbrance and alienation provi- 7) Act,” 1876, “Five Tribes ch. sions were reaffirmed set to from run Stat. April Supplemental
the date of the
Agreement.
¶ 16,
* * * * expec lating]” general congressional this foregoing statutes show the Creek specific congressional pur tation into “a accepted an allotment Nation scheme to a pose” respect given reservation. citizens, “surplus” for tribal retained lands 468-69, 104 1161; see also established Tribe, further 1220 & We now consider Shawnee 423 F.3d at n.18 Oklahoma. insists, whether, that, as the State these laws notwithstanding (explaining the Creek Reservation. also disestablished “Congressional desire to end reserva question tion system,” “[w]hether Analysis ii. treaty or act particular Congressional *48 of these statutes disestablished None extinguish or all of an some intended The State’s case the Creek Reservation. case-by- a existing requires reservation termination of the Creek Reservation given analysis”). any case “The of effect at impor falters “the first and most thus language surplus depends act on the land Parker, at step.” tant 136 S.Ct. 1080. The underly and the act circumstances argues the cumulative effect of the Solem, 469, ing 465 passage.” its U.S. Congress demonstrate that dis eight laws added). (emphasis 104 1161 Here at S.Ct. Reservation. For established Creek one, step language consider the we and reasons, First, disagree. the stat three congressional purpose find to disestab no any “hallmarks” utes lack of textual lish borders. the Creek Reservation’s demonstrating congressional intent to dis establish, language and no other shows not termination lan- We have identified Congress the Creek Reservation’s altered any guage in of the statutes the State Second, specif boundaries. id. Indeed, cites. State concedes statutory language—“[t]he proba ic most particu- eight one of statutes contains intent,” congressional So tive evidence language lar that disestablished the lem, 470, 465 104 1161- U.S. at S.Ct. Reservation. Congress continued to recognize shows Third, Reservation’s borders. the State’s language of such is notable absence on the title reliance statutes’ reforms of fully capable is of stat- because arrangements governande and within ing or dimmish its intention disestablish unavailing is these Reservation because reservation, following examples as changes did not disestablish Reserva illustrate: tion. (cid:127) reservation is Smith River “[T]he 1) No hallmarks disestablishment 27, July Act of hereby discontinued.”
or diminishment 1868, 248, 198, 221; ch. see Stat. n.22, Mattz, 412 93 S.Ct. U.S. termi expressly never example (citing statute as an any nated the Creek Reservation language “clear of express termi- public domain.” Act of May nation”). 888, 245, 263; ch. 32 Stat. see Hagen, (cid:127) 412, (dis- U.S. at subject to ... “That ... S.Ct. 958 allotment cussing statute
[legislatively
explaining
and
portion of
defined]
“Congress
Colville
considered
Indian Reservation ...
Indian reser-
separate
vations as
hereby,
from
public
vacated
and
restored
”
..,.
domain”).
public
domain
of July
Act
(cid:127)
62-63;
ch.
27 Stat.
“[T]he reservation lines of the said
Mattz,
see
n.22,
reservation shall be
to
restored
the
these occasions:
examples
Second,
60. Additional
Congress
can even be
appropriat-
found
Stat. at 643-44.
cites,
$80,000
within the
pay
statutes the State
but not
ed
"to
the Pawnee tribe of Indi-
Oklahoma,
respect
with
to the Creek
formerly
Nation.
the 1893
in
part
ans
of the Indi-
appropriations
title, claim,
law—the
Territory,
right,
State’s first statute— an
for all their
Congress provided money
satisfy
every
to
sum-cer-
and interest of
kind and
in
character
purchases
agree-
tain
of Indian lands under
country
and to all that tract of
between the
negotiated
previously
ments
with two Tribes.
Cimarron and Arkansas rivers embraced
First,
$30,600
Congress approved
pay
specified
“to
the
within the limits of seventeen
Town-
land, ceded,
Territory
Tonkawa tribe of
in
ships
Indians
of
conveyed,
of
relin-
and
title, claim,
right,
Oklahoma for all
quished
their
§
to
United States.”
27 Stat.
Further,
every
Congress
interest of
kind and character in and to
at 644.
these new-
declared
townships
conveyed
four
ly acquired
of land ...
"part
and re-
public
lands to be
of the
linquished
§
to the United
States.”
27
domain.”
de 3, 14 786; at see also id. at art. land Stat. to United States all 9, 14 (providing in the Stat. at belonging to the Nation said buildings “in construction of the re on the Georgia, lying of reservation”). duced Creek of the middle of east side the Chatah river, And, also, another oochie Court has said that when lying sai tract of land within unequivocal lan treaties contained earlier ” dState, .... as follows and bounded of guage disestablishment or diminishment 286-87. Treaty, art. 7 Stat. “speaks and a in later enactment much (cid:127) “The tribe Creek cede Indians terms,” change language different “[t]he in land, East States all United their ... claim that [the] undermines Trea Mississippi river.” 1832 to do the same with reserva intended art,. 1, 7 Stat. at
ty, tion’s boundaries [the statute] later Parker, (cid:127) agree treaties].” ... earlier hereby “The States did [the United 1080; Mattz, country Muskogee U.S. at that the Creek (“Congress fully be em- S.Ct. 2245 was Mississippi, shall west by following bound- aware means which termination within braced be clear Treaty, effected. But termination aries ....” art. could language not employed was the [rele Stat. at so, being statute]. are not vant This (cid:127) hereby “The Nation doth inclined intent terminate infer cede, grant, convey to the Semi reservation.”); Seymour, 368 Indians, country nole tract (comparing statute earlier the following bound included within “expressly vacating the South Half of the Treaty, art. aries restoring that id, land 2, 11 699; Stat. at see also at art. public domain” later statute and find (“The following shall Stat. at 700 ing later re “repeatedly statute constitute remain boundaries the Colville Reservation ferred] ”); country id. at the Creek .... it clear that the manner that makes inten 5-6, (provid Stat. arts. 700-02 tion the reservation ing release Creek claims such”). continue to should exist as specified lands consideration $1 States). paid million United Although the State contends the cumula *50 (cid:127) con hereby eight Creeks force of the statutes cede and tive “[T]he disestab Reservation,
vey Congress United ... the the to the States lished Creek domain, to again half of their west discussed Creek boundaries in direct entire by following north running be line of immediately passage divided terms south; of and eastern said the The the State’s final Oklahoma half- statute. lands, them, 16, 1906. being by Act on Enabling passed Creek retained was June later, 21, shall, except Days on herein otherwise 34 Stat. June at 267. stipulated, Congress boundary forever set as a to the be apart recommitted Nation; separating for said Creek “the Creek Nation” and “the home 21, of cession -the of Act said of Oklahoma.” of June Territory consideration line, of west their lands ... the Unit ch. 34 364. half Stat. The to agree surveyed by sum of the pay ed States the 1871 and reestablished Geological in 1895 seventy-five Survey ... U.S. nine-.hundred sixty- boundary one to be west line hundred and “declared the thousand
951 141-43, 146, 148; In the of Creek Nation.” Id. same Stat. at En the Oklahoma statute, abling Act, § 34 Congress a new re Stat. 272. established at Territory district in cording the Indian Original Agreement also reserved to “the north line of did so reference ¶ 24, purposes. lands for tribal 31 See Stat. Nation.” 34 at These Creek Stat. the explained at 868. Solem that retention of to the lines and boundaries references purposes sug- lands for tribal “strongly con the Creek Nation undercut State’s gests” continued reservation See status. cumulatively eight that its statutes tention 465 1161 at 104 (explaining U.S. S.Ct. the Creek Reservation. disestablished imagine why to Congress “[i]t difficult would reserved for such-pur- have lands Wyoming, As we said in recently poses” longer if the land was no a reserva- are no magic of cession “[t]here words tion). . “Surplus” Creek not were diminishment; lands Rather, required find part public made a domain or even be, statutory language, may whatever it opened to settle- unrestricted non-Indian congressional express must ‘establish an ” ment. Tribe and the instead purpose 849 at 869-70 diminish.’ F.3d agreed not initially claimed lands as.allot- Hagen, 510 114 (quoting U.S. at S.Ct. ments would be used the Tribe’s bene- 958). signs are no There traditional textual fit by equalizing the allotments of Creek statutes, any disestablishment ¶¶ 3, 9, 862, 864; citizens. See at Stat. language review no and our uncovers other 7,§ see also at Stat. presumption that. the overcome the of making And instead a sum-certain Creek to exist. See Reservation continues payment to the Creek Solem, 465 Nation for all—or land, portion even a of—-its Agreement fact, Original recognized Agreement provided Tribe would receive an uncer- boundaries. Reservation’s based, tain amount on revenue future 2) Signs Congress continued surveyed sales to settlers non-Indian recognize the ¶¶ Reservation 11-15, 866; town lots. Stat. Parker, (finding 136 S.Ct. at no eight statutes not only lack textual intent where diminish Tribe not did evidence disestablished disput- sum for all of fixed “receiv[e] Reservation, Agree Original Creek ed “the profits lands” because Tribe’s were language recognizing ment contains entirely upon non- dependent many how existence Creek Nation’s borders. purchased members the appraised tracts ¶ 10, See, e.g., (discussing at 864 Stat. (“Such land”); id. schemes allow ¶ 25, Nation”); “in the towns Creek non-Indian settlers own land (municipal corporations at 869 Stat. “in doing so, But in they reservation. not do ¶ Nation”); Stat. at (ci- diminish reservation’s boundaries.” (introduction of “into cattle the Creek Na omitted)). tation quotations ¶ 41, tion”); (application Stat. Thus, only laws and “in other treaties the Creek Na do the State’s statutes ¶ 42, *51 (notice tion”); through any language' showing 31 Stat. lack at 872 disestablish- ment, Congress’s rec- newspapers “having they a bona show publication continued Nation”); ognition of circulation in boundaries. fide the Creek Reservation’s ¶ 43, (maintenance at of liquor 31 Stat. 872 3) title governance The'State’s nation”). “in other laws said And so did arguments See, e.g., Supplemental Agree statutes. ¶¶ ment, 17-18, 502-04; at arguments 32 Stat. disestablish- State’s Act, 12, 14, 16, 24, 27, Congress’s §§ general goals Five Tribes 34 ment on based 952 Yazzie, reservation’s boundaries. See establishing tribal title and a
extinguishing
(observing “the
at
distinction
Relying
fail.
on its F.2d
government
state
new
boundary
an
appropriations
impor
[is]
law between title and
first statute—the
one”);
Solem,
465 U.S. at
Congress
the com-
tant
see also
in which
announced
(“[N]o
negotiations—the
happens
ar-
an
Br.
allotment Creek lands—the
645).
Congress largely
§
at
transfer
title from
Tribe
its mem
27 Stat.
argu-
goals,61
both
but
achieved
State’s
bers—does not mean
disestab
they
questions
fail' because
confuse
lished the Creek Reservation. Allotment
ments
with
governance
the issue be-
title and
with
“completely
can be
consistent
contin
Mattz,
Reservation’s
us—the
boundaries.
fore
status.”
ued reservation
U.S.
2245;
Tribe,
Navajo
see
a) Title
(“[Allotment
severalty
F.2d at
subsequent entry
arid
individual Indians
a reservation has
Whether
entirely
is
consistent
depends
or
non-Indians
been
diminished
disestablished
(quotations
continued
status.”
boundaries
reservation
its
were erased
whether
omitted));
Solem,
constricted,
465 U.S. at
not on who owns
to land
title
(“[I]t is
b)
Although
Governance
Congress at one
may
time
have envisioned the termination of the
changes
governance
Neither do
over
complete
Creek Nation and
divestiture
Congress
Reservation show that
Creek
sovereignty,
its territorial
legisla-
the Reservation.
disestablished
The State
tion
enacted
1906 reveals that Con-
argues
governmental
the erosion of Creek
gress
to implement
decided
authority
creation
Oklahoma
goal,
explicitly perpetuated
and instead
Congress
demonstrate
disestablished the
the Creek Nation and recognized its
reasons,
For
Creek Reservation.
three
continuing legislative authority. Con-
disagree.
gress subsequently repudiated its earlier
First,
government’s
powers
tribal
policies of termination
legis-
and enacted
its reservation’s boundaries are not the
designed
lation
governmental
restore
times,
thing.. At
same
the State’s brief
powers to the Oklahoma tribes.
recognizes
point.
Aplee.
this
See
Br. at 89
U.S.A.,
Country,
Indian
The State
relies
court deci
edging
conveyed
“[t]he United
to
States
discussing
sions
history as opposed
each of the five civilized tribes their lands
primary
to
sources from the relevant time
simple,
fee
agreed
they
and
should
period.
Aplee.
Br.
(citing
at 69-70
never be
in any
included
Territorial
Woodward,
764;
U.S.
238
government,
U.S,
so.long
the
as
tribes
Brady,
Sizemore v.
35
lands,”
to
occupy
continued
exist and
(1914);
S.Ct.
L.Ed. 308
Stephens v.
things
contended
changed.
he
Id. The
Nation,
Cherokee
“original idea” had
people
been “that white
(1899);
S.Ct.
L.Ed.
United
were not to
country,”
dwell in that
but he
v,
(8th
Hayes,
States
20 F.2d
Cir.
thought the influx of
into
white
settlers
1927);
1110).
Harjo, 420 F.Supp.
Many of
Territory
no
showed
Tribes
cases
years
these
were decided
after
longer wished to remain isolated. Id. The
allotment of Creek lands
after Okla
and
changing demographic
required
situation
state,
homa became a
providing
thus
sec
governing
new
structures.
at 101-02.
any
evidence of
contemporane
ond-hand
governments,
the tribal
Elimination
he
ous
understanding.
historical
To
extent
argued,
eventually
would
to happen
have
legislative
State’s cases discuss
docu
or without
Id. at
Tribes’ consent.
era,
from
ments
we look to the docu
pointed
Platt also
Senator
out
.
ments themselves
Committee on
drafting
Indian Affairs was
a bill to create a commission “much wider
1) 1892 Senate debate
scope
than is
in the
contained
joint
Hayes
The State
cites
its earliest
resolution.” Id.
historical evidence Congress’s
intent to
joint
resolution
the ta
upon
“died
Hayes,
disestablish the Creek Reservation.
committee,”
without
to
ble
reference
Circuit,
Eighth
a 1927 decision
dis
20 F.2d at
omit
Hayes,
(quotations.
cussed
floor
Senate
debate.
ted), but,
above, Congress
as discussed
which
opposed
Senators Jones and Platt
a
%he
created
'Dawes Commission the next
joint resolution proposing
a com
to create
Act,
year though the
instruct
negotiate
mission to
with the Five Civilized
the Commission
pursue
purchase
ed
Tribes
induce them to allot
lands.
their
or allotment
lands
to secure
tribal
(summarizing
See
they can intend demand the 3) people by of the white either the Gov- sources Other of the or their ernment United States report an 1895 State references They that when own. must have realized Congress, from the Dawes Commission policy maintaining their an Indian govern- which stated that the “so-called community isolated from the whites was Territory ments” the Indian were for a abandoned time it was abandoned corrupt, “wholly irresponsible, and unwor- forever. longer the lives thy be trusted” with Id. at 7. property Dep’t citizens. Interior, (1st 54-5, at report commented H.R. No.
The committee Doc. XCV 1895). ownership gover- predicted of land The Commission the state Sess. Al- Territory. peaceabl[e]” would not if nance within situation “remain population from though the Tribes for the benefit the white were excluded held title citizens, governance report arrangement of all their found stressed citizens, by “frequently not Indi- States was “bound constitu- some tribal United by govern- to it that intermarriage,” obligations tional to see by ans blood everywhere not, jurisdiction ment within its ans any circumstances, under would governed.” on the rests consent agree any portion to cede of their lands to atXC. the Government.” Id. at LVX. The same report a-copy included of the terms the argues an report by Commission had submitted the Creek Secretary of the Interior similarly found propositions “upon Nation—the which [the system government that a uniform proposed Commission] to negotiate.” Id. at provided have to would be for the Indian eighth LX-LXI. The proposition stated Territory. The State also observes that, if agreement reached, Con- Creek Nation and the Dawes Commission gress would be allowed to form a territori- negotiated agreements rejected that were government al “over territory either the Tribe or before Creek Nation.” Id. agreed Original both sides Allot- Agreement, ment but the State does not 2)1895 Dawes letter any cite particular provisions in these ear- *56 lier, Next, proposed argue to they points deals reveal a the Tribe to an 1895 letter contemporary from understanding that Con- Chairman to Dawes the Creek Na- gress to intended disestablish or tion’s principal explaining: diminish chief the Creek Reservation. Commission have not come to [T]he here interfere all with the administration
These materials fail to show that Con- nations, public of affairs in these or to gress intended to disestablish the Creek deprive any to your undertake of people by enacting any Reservation eight of the just rights. hand, of their On the other it statutes. desire, purpose is their only and and the Mr, Murphy’s ii. and the Creek have, authority they to you confer with Nation’s evidence upon will promoting lines that result in highest good your people Murphy contends there is no un- securing to all of each and them their equivocal historical supporting evidence just rights treaty obligations under the contrary, disestablishment. To the he and which exist between the United States the Tribe from cite sources both before your nation. Original Agreement and after the 1901 to argue the Creek Nation’s borders remain 54-5, H.R. Doc. No. at LXXXI. These trea- intact. ty obligations, argues, the Creek Nation treaty’s recognition included the 1866
1)1894 Dawes Commission records
integrity.
the Tribe’s territorial
points
Creek Nation
to records
3)1900 Attorney
opinion
General
from the
early
Dawes Commission’s
years.
report
Congress
Its 1894
to
discussed the
The Creek Nation also relies on a 1900
negotiations
Commission’s
explained Attorney
opinion,
General
addressed
the Tribes
to
changes
had refused
existing
discuss
the “conditions now
in the Indian
“in respect
govern-
either to their form of
country occupied by the Five Civilized
holdings
ment or the
argue
their domains.” Tribes” to
the 1898 Curtis Act did
Interior,
53-1,
Dep’t
H.R. Doc.
No.
affect the Reservation’s boundaries. 23
(3d
1894).
at LIX-LX
(1900),
Op. Att’y
Sess.
The Commis- U.S.
Gen.
avail-
explained
sion
to
it
proposed
Responding
had
able at
plained that the
after
Act,
power
still
of the Curtis
had
had—and
not—achieved:
tions
intruders and
set the terms
exclude
possible
it
from
been
Had
secure
upon
could enter the
which non-members
a
to the
Five Tribes
cession
United
opin-
See id. at 215-18. The
lands.
Tribes’
territory
given
of the
entire
States
activity
regulate
ion
Tribes could
said
equivalent
price, the tribes to receive its
because, although out-
within their borders
value,
stipulated
preferably a
amount
lots,
legal
purchase
“the
could
town
siders
ceded, equalizing
of the'land thus
values
right
land
an Indian
purchase
within
cash, the
duties
commission
purchaser
right of
no
gives
nation
immeasurably simpli-
would have been
of such
exemption from
laws
nation.”
fied,
have
would
Government
permit
“requiring
Tribal laws
saved,
expense.
...
been
incalculable
carry on
in the
or
Indi-
reside
business
had, however,
understanding
anWhen
Id.. Non-
country”
still in
were
effect.
great
difficulties which have been
cattle
grazing
or otherwise
members
occu-
experienced
inducing
tribes to
“simply
pying
lands
intrud-
.were
allotment ...
it will
accept
be seen how
removed,
they
be
unlessl
ers” who “should
been to-
impossible would
have
have
required
permit
pay
such
obtain
more
adopted a
radical scheme
tribal
tax,
or
Id. at 219.
permit,
fee.”
license
extinguishment,
simple
no matter how
Attorney
the Sec-
General concluded
its evolutions.
*57
Interior
retary of the
had
56-5,
Interior,
Doc. No.
Dep’t of the
H.R.
all
authority
duty
to remove
the
and
...
1900).
(2d9at
Sess.
by trea-
persons of the classes forbidden
that,
points
years
out
in the
Murphy
Mr.
law,
or
are
Indian
who
there
ty
without
of
immediately following passage
the allot
license;
permit'
to close all
or
business
regional
agreements, the
federal cir
ment
permit
and is
requires
or license
jurisdiction over the
cuit court with
one;
on
being carried
there without
recognize the
Territory
to
Creek
continued
all cattle
on
being pastured
to remo[v]e
Buster,
agents
borders. In
Nation’s
permit or
land without Indian
public
the
licensing
the
enforced
Creek’Nation’s
fee
license,
permit
such
or
is
where
license
by closing
“within its borders”
trade
this
required; and
not intended as an
non-Indians who had
businesses
re
summary
or
pow-
all the
enumeration
The
pay.
to
subsequent 1222; Solem, Tribe, nee 423 F.3d see 1) Congress 1161; 104 S.Ct. Both cite evidence show what sides
Parker, (considering at 1081 trib 136 S.Ct. Congresses later understood about “Con presence territory). al in contested Creek Reservation’s existence. We start ar gress’s treatment the affected own examples. earliest eas,” years immediately in the especially legislation opens following passage the following The Creek Nation cites settlement, to non-Indian a reservation arguing Congress continued statutes in value, evidentiary “has as does the some recognize Reservation’s fol- boundaries the Bureau of Indian manner lowing passage agree- of the allotment judicial local authorities” treat Affairs and 21, 1904, April ch. ments: Act of Solem, disputed ed area. Secretary (granting Stat. the. Step also con three to sell “the residue authority Interior actually opened cerns moved onto “who Nation”), repealed lands the Creek id., lands,” later demo 3, 1905, ch. Act March 33 Stat. least graphic compelling” facts are “the (revoking Secretary’s authori- evidence for disestablishment or diminish Act of ch. ty); March 35 Stat. “[e]very surplus ment Act land because (providing “equalization al- in a necessarily surge resulted non- Nation”); Act of lotments in the Creek *59 degraded Indian settlement the ‘Indi 25, 86, 561, May 1918, ch. 40 581 Stat. Yankton character’ of the reservation.” money for “the common (appropriating Tribe, 356, 118 Sioux 522 U.S. at S.Ct. Creek, Choctaw, Cherokee, schools in the Nations”). that, Chickasaw, and Seminole We provides compared Solem because, two, carry weight some steps step-three find these laws one and evidence three, emphasizes Solem step a lesser 465 U.S. within “[t]o considered extent.” 471, “immediately following” passage of years at 1161. In its 104 S.Ct. most recent 471, Solem, at laws. See U.S. applying decision relevant 1161; Hagen, 510 although see also “sug Court observed that has S.Ct. (repeating Court’s gested]” step-three “might evidence rein text, “longstanding on observation the views statutory force” a based conclusion Congress form subsequent a hazard- referred the lands of the Five Civilized inferring areas, ous basis for the intent of an Tribes as rather than reservations.” (brackets quotations one” omit- Aplee. earlier Br. at (citing Rep. H.R. No. 82- ted)). 745, 753, 777, 793, (1952)). Murphy and the Creek Nation not do ad-
The Creek Nation cites other statutes dress this report, but the State not does showing that reservations continued to ex explain why “areas” and “reservations” Oklahoma, in though they ist not speak do cannot refer to the same land. directly to the Creek Reservation. See Act May ch. 43 Stat. Altogether, these conflicting signals (regulating gas oil on leases “unallot Congresses from later not do overcome ted land Indian reservations other than lack of steps evidence at one and two. lands of the Five Civilized Tribes and the Given “the textual contemporaneous Reservation”); Osage Act of June in case, evidence” this in “confusion ch. (authorizing Stat. subsequent legislative nothing record does Secretary acquire of the Interior to land to alter our conclusion” that the Creek rights and water “within or without exist Reservation’s borders still Hagen, exist. ing Oklahoma). in Indian reservations” 958; U.S. at see also id. The points State more recent statutes (“The subsequent history is less illuminat- in defined “reservation” to ing evidence.”). than contemporaneous include, among things, other “former Indi Aplee. an reservations Oklahoma.” Br. 2) Executive laws also existing 85.66These include parties’ evidence from the execu- definitions, reservations within their how tive' branch also is mixed. The Creek Na- ever, and none them reference the tion contends that the Bureau of Indian being Creek Reservation as disestablished Affairs to regard continued the Reserva- particular. Congress’s choice to include tion as intact in early years former lands Oklahoma century. twentieth The BIA’s annual re- regulatory programs within various does ports following Creek allotment and Okla- that Congress show has disestablished consistently homa statehood included thе the Creek Reservation. summarizing Creek Nation tables res- also cites two congressional Br., ervation statistics. See Creek Nation First, reports. committee a 1935 report App’x Similarly, Department B. con- Oklahoma, a Senate committee said that in tinued include the Creek Nation on its allotment, as the result of “Indian reserva- “Maps Showing Reservations with- tions as such have Rep. ceased exist.” S. the Limits the United States.” See 74-1232, (1935). No. at 6 But as the Creek 1900-14). id. App’x (maps C from argues, legislation Nation associated report, with the regula- the Oklahoma Indian But BIA argues Wel- the State later Act, “existing fare concerning acquisition policies referenced Indian res- tion land 1,§ ervations.” See shows Stat. 1967. Sec- that the BIA concluded the Creek ond, argues survey the State in 1952 “[a] Reservation was disestablished because *60 741, 5318(n)(2). following examples: § 66. The State cites the 12 Within 29 U.S.C. “reserva 4702(11); 1722(6)(C); § (d), § U.S.C 16 U.S.C. actually tion” is defined subsection 1452(d), 2020(d)(1)-(2), §§ 25 2992c, U.S.C. § within 42 "Indian reserva U.S.C. 3103(12), 3202(9); 741(c); § 29 33 U.S.C. (3). tion” is defined in subsection 1377(c); 2992c(2), § §§ U.S.C. 42 U.S.C. 962 1257, 164, 171, Ariz., 36 93 S.Ct. 411 U.S. reservation” regulation
the defined “Indian ' v. (1973); Tax Comm’n 129 Okla. L.Ed.2d to mean: 602-03, 608, 598, States, 63 U.S. 319 United tribe is the over which area land that (1943); Grayson 1284, 1612 87 S.Ct. L.Ed. as hav- United States recognized the 317, 352, 353, 45 Harris, U.S. v. S.Ct. 267 jurisdiction, except ing governmental Woodward, (1925); U.S. 652 69 L.Ed. 238 that, or where Oklahoma the State 764; McKay, 285, McDougal v. 35 S.Ct. at determi- judicial final has been a there 59 L.Ed. 35 S.Ct. 237 U.S. has been dises- that a nation reservation Miller, 235 (1915); Washington 1001 diminished, reserva- tablished 422, 423, 295 59 L.Ed. 35 U.S. §.Ct. constituting area land means that tion 1143). (1914);, F.Supp. 420 But Harjo, tribe as of .the the; former reservation s of these cases characterization the State’ Secretary. by the defined instance, McClanahan, is overstated. 151.2(f) (2016).67 Even if this C.F.R. all. Nation at not Creek does discuss State, merely cre supports the evidence Woodward, de Supreme Court And BIA evi a conflict with ates other as.involving a the case 160-acre scribed dence. domain “formerly part tract said The Court has that sentence, Nation,” but, in the next Creek of the government officials’later treatment allot tract opinion explained was, “[t]he interpretive disputed “has ‘limited area Hawes, Creek Agnes a. freedwom ted ” Parker, (quoting at 1082 136 S.Ct. value.’ an.” U.S. Tribe, U.S. at Yankton Sioux description land' Court’s consis 354); Solem, 465 U.S. at S.Ct. of title from transfer tent with the (“The governing first it, to formerly Nation, which owned Creek only divest a is that can principle a explained, previously As. Ms. Hawes. of its its land and diminish change title from tribal individual added)). And, more (emphasis boundaries.” a reserva ownership does disestablish “subsequent treatment of generally, cites suffer Other cases tion. cannot overcome the disputed land understanding allotment that same flawed statutory relevant laws are text” when Gray the reservation. See had terminated Con any language” indicating “devoid S.Ct, son, a reserva gress intended disestablish “lying within (describing allotted lands Parker, tion. 136 S.Ct. at Nation”); Washington, 235 Creek former (referring to SiCt.
3) courts Federal recently was “lands within what until Territory”). To references in in the Both Creek Nation point passing sides reflect later cases court the decades the extent the’State’s across decisions understandings of conflicting understanding that the Creek Reservation that reveal disestablished,- references, status. these Reservation’s been the Creek are dicta. acknowledges, the State invokes a twenti handful The State argues dicta, that “indicating], The Creek Nation cases eth-century “fflederal after some in the allotment courts decades the reservation widely held belief as (citing [the] erroneous at 78-79 times subscribed Aplee. Br. disestablished.” Reservation had sumption” Tax v. State Comm’n McClanahan 18, 1980) regulation's (announcing fi- (Sept. regulation 1980. See Land dates to nalization).. Reg. Acquisitions, Fed.
963 on a exterior of the been disestablished based- mistaken boundaries 1866 Creek Na disestablished”). that tion have been government the tribal had been belief Br. at 32. For dissolved. Creek Nation 4) Oklahoma States, example, in United Turner v. remarked—incorrectly— Claims Court acknowledges Creek Nation up that “Creek of Indians kept Nation governmental State considerable “asserts tribal organization year their ... until the authority, over Crеek reservation.” 1906, government at which tribal date the Oklahoma’s, Creek Nation gener- Br. at by general provisions was terminated authority al exercise over the former Original Agreement].” Allotment 51 [the Territory, Indian has included criminal 125, (1916), aff’d, Ct. Cl. 248 127 Indians, prosecutions agree but we (1919). But, S.Ct. 63 291 39 L.Ed. as Mr. Murphy Nation that Creek above, discussed Congress extended the authority exercise not has government tribal 1906 and beyond has the Creek Reservation. disestablished never it. dissolved Stat. at Nowabbi, In parte Ex Oklahoma convict 148. The Supreme Court affirmed the ed a member of Choctaw Tribe state of Claims’ repeated Court decision and its court of murdering another tribal member that mistake March the trib “[o]n on the victim’s allotment. 60 Okla.Crim. organization pursuant to” al was dissolved (1936), 1141-42 P.2d over Turner, Original Agreement. Klindt, ruled P.2d 401. The defen But, S.Ct. 109. as Court later argued dant the federal district court had recognized, the Creek. Nation “still exists” . . jurisdiction. Id exclusive at 1143 The has of its some former “resume[d] jurisdiction OCCA concluded state Seber, n.23, 718 & powers.” 318 U.S. at proper and said had failed to reserve jurisdiction federal crimes , As explained, question have former committed within the Indian Terri 1156;68 powers governmental is tribal distinct tory. Id. at boundaries, from however, then, the state Since courts argues persuasively Creek Nation these changed have course. the OCCA just clear an “indication of errors how are in holding concluded Nowabbi had erred shaky judicial assumptions such were” in jurisdiction prosecute Oklahoma the decades after allotment. Creek Nation Indian defendant for murder committed Br. at 32-33. Klindt, on an Indian allotment. See (“There ample Scattered in later P.2d at evidence to dicta court decisions justify indicate that the Nowabbi Court misinter do conclusion preted upon Reservation. and cases statutes disestablished We ... three-part opinion. hereby have based its Nowabbi is Solem undertaken overruled.”); Cravatt, analysis because P.2d at no (vacating Circuit defendant’s state- ques Tenth case addressed the has _ U.S.A., court Country, tion. F.2d conviction for murder committed See Indian allotment).. allot- (reserving issue These addressed of “whether the cases Attorney similarly sovereignty, Uniited there is no 'Indian Oklahoma General coun try’ Territory’ ‘Indian juris concluded said former’ over in 1979 Oklahoma has jurisdiction which tribal ex Territory: diction the former and thus over (1979), Op. Att’y. "Due ists.” 11 Gen. to the Okla. dissolution Indian tribes Territory' governments . former available WL at *8-9 'Indian at 1979 *62 Still, argument, of as merits, purposes assume for question. not the reservation We States, away the that there have does United they show that Oklahoma has shifted Mississippi’s jurisdic- times no been is when position from its earlier there lands tion over the Choctaws and their Terri country in the former Indian Indian unchallenged. But ... not went we do tory. agree that Executive Congress the provided oth has not us with State to power the Branch have less deal with prosecuting Indi examples er of Oklahoma Mississippi affairs of Choctaws than the the ans for murders committed within groups. of other with the affairs Indian Reservation,69 but would such cases Creek fact that Neither the Choctaws Supreme be of little value because the a of a Mississippi merely are remnant explained that even when Court has Indians, ago larger group long re- jurisdiction goes un exercise state’s Mississippi, fact moved from nor the coun questioned, retain their Indian lands supervision that federal has over them Congress other try status until decides continuous, destroys feder- been John, In United States wise. power to them. al with deal (1978), 2541, 57 98 S.Ct. L.Ed.2d 489 652-53, (brackets Id. at rejected argument an omitted); footnote Indian Coun Mississippi by the that the federal State U.S.A., (“[T]he try, past at 974 F.2d government’s jurisdic its failure assert challenge jurisdiction Oklahoma’s failure juris tion had made the State’s exercise lands, or Creek them over Nation treat proper: diction lands, not divest the does argues] that since 1830 [The government of its exclusive author federal residing in Mississippi Choctaws have ity over relations Creek Nation with fully politi- into become assimilated Congress’ protect negate intent Creek State, and that cal social life governance, lands tribal and Creek aban- long ago the Federal Government lands.”). respect to those authority supervisory over doned its jurisdiction Oklahoma’s exercise with- this these Indians. Because of abandon- ment, proper in the Creek not a Reservation long lapse in the federal Congress basis for us to conclude that recognition organization of a tribal the Reservation. disestablished power given Mississippi, regulate In- “to Commerce ... with 5) Nation Creek Tribes,” I, § cl. dian Const. Art. juris- sig- has provide
cannot a basis for The Creek Nation maintained federal recognize presence To in nificant and within diction. Choctaws continuous special The tribal Mississippi government, as Indians over whom the Reservation. extinguished, many may be would power federal exercised never saw its arbitrary. powers be anomalous and restored when court, 1990s, rejected government attempt In the federal federal 69. raised, government "urge[d] frequently allow Oklahoma adopt us to its but prosecute a Creek citizen for murder accepted, argument never that the State Sands, another citizen. 968 F.2d jurisdiction criminal Oklahoma retained over is- 1061. We did not address the reservation country.” offenses in 1061. We Id. at sue, however, because we determined rejected argument defen- and affirmed the crime occurred on an thus in allotment—and 1061-63, conviction. Id. at dant’s federal 1151(c). country under U.S.C. prosecuting After the defendant passed in 1986. slight, OIWA See Indian Coun- it weighs in favor of Mr. Mur- U.S.A., try, Later, phy 829 F.2d and the Creek “[i]n Nation.71 reorganized the Creeks their tribal *63 Demographics ii. government ... adopted and a new Creek Constitution, approved by which was is a large, There population non-Indian Department United States the Interior.” within the Creek Reservation. The State Today, government at 970. the tribal that, argues even “[b]y four-fifths of complex maintains a capital Okmulgee persons living Territory were provides and extensive services within the Aplee. non-Indian.” (citing Br. at 86 H.R. 59-496, Creek Nation’s See Rep. (1906)). borders. Creek Nation No. at 10 Br., D App’x (maps year reflecting capi- Tribe’s Mr. Murphy was convicted in McIn- complex tal County,72 and locations of tosh community the census determined centers, centers, that—of a county population 19,- medical total emergency and 456—14,123 (73%) response people throughout teams were white com- the Reserva- 3,152 tion). pared people who The Creek Nation identified further contends (16%).73 American Indian or Alaska Native it applies its traffic throughout laws And beyond within the Reservation but territory supports traditional churches County city McIntosh lies the Tulsa grounds and ceremonial on the Reserva- population, maintains, with a the State tion. Id. at Murphy 37.70Mr. also observes only (citing 5.3% Indian. Id. at 86 the Creek Nation has into deputa- entered figures). census agreements tion for law enforcement ser- “within vices the exterior boundaries Mr. Murphy argues this demographic (Creek) Muscogee Br., Nation.” Aplt. At- is unhelpful evidence because “[t]he in tach. F. The Creek Nation’s continued crease of non-Indian intruders into presence activity provides a much Territory occurring was before allot stronger case for reservation continuation Enabling ment acts Act passed,” were Parker, than where the and even before allotment and Oklahoma held reservation intact statehood, was notwithstand- “the [Creek] Nation’s citizens territory.” ing the fact that “the Tribe almost minority was were the within their own entirely disputed territory absent from the Ap Br. at 65-66. Although many lt. years.” than 120 area, more S.Ct. non-Indians have come live 1081. The may points value this evidence out approximately be Tribe (Creek) Nation, Muscogee 70. See by Department commissioned of the Inte- rior, http://www.mcn-nsn.gOv/services/# (providing (citing see id. at 42 n.19 Institute for Research, including, among overview of tribal services Government "The Problem of Indi- others, (1928)), language programs, an Administration” on which environmental services, family prevention pro- State also draws. We have violence considered these materials, grams, they preservation do not affect our conclu- historical and cultural services, programs, sion. senior education and transportation programs) [https://perma.cc/Q 82C-ZVZY], 72. The 1866 boundaries of the Creek Reserva- tion, however, cover more than McIntosh County. Muiphy 71. Mr. step-three has submitted other reports legisla- materials in the form of history criticizing Bureau, probate tive the Oklahoma 73. See United States Census “Ameri FactFinder,” handling courts for their Indian estates can Profile of General Demo Br., years Aplt. after allotment. See graphic [https://perma. Attach. Characteristics: 2000 Similarly, lengthy report E. he cites a cc/LH7M-32WX]. «=> ClCl ju- jurisdiction. its to live exclusive Oklahoma lacked
half of
continue
within
members
1153(a).
See
risdiction.
18 U.S.C.
of the Reservation.
the 1866borders
Murphy’s state
death
conviction and
not
demographic
does
evidence
e
ar
Thé OCCA
sentence
thus invalid.
statutory
text
overcome
absence
concluding
state
by
courts had
erred
disestablishing the Creek' Reservation.
district court
jurisdiction,
and the
erred
n
Parker,
(explaining
decision
not
concluding
OCCA’s
earli-
to “rewrite”
the “role”
courts
contrary
clearly
law.
established féderal
light
“in
of ...
de-
subsequent
er statutes
the district court’s
therefore reverse
We
omitted)).
(quotations
history”
mographic
*64
judgment and-remand with instructions to
to sub-
acknowledged that
Solem
“[r]esort
Murphy’s application
Mr.
for a writ
grant
history
...
sequent demographic
is
§
of
28
corpus
habeas
under
U.S.C.
potentially
unreliable
unorthodox
prosecute
to
The decision whether
statutory
interpretation.”
method
Murphy
court
with the
in federal
rests
n.13,
1161;
at 472
S.Ct.
U.S.
about the
United States. Decisions
borders
J.,
(Lucero,
Wyoming, 849
F.3d
887 n.6
of the Creek Reservation
with
remain
step
ob-
dissenting)
but
(applying
three
'
Congress.
of an
makeup
serving
demographic
“[t]he
following passage
or more
area decades
TYMKOVICH,
Judge, concurring
Chief
anything
possibly
a statute
tell us
cannot
rehearing
in
banc.
the denial
en
prior Congress”).
thinking
about
when,
appropriate
En
is not
banc review
step-
part
take
as
our
We
account of it
here,
panel opinion faithfully applies
analysis
not rest
three
do
our
decision
Supreme
precedent.
An en banc
upon it.
necessarily reach the same
court would
result,
Supreme
precedent
since
.Court
Step-three concluding
iii.
comment
any
only
precludes
other
I.write
outcome.
“fail to
steps one
When
and two
suggest
might benefit from
case
this
to.
evi
provide
compelling
substantial and
Court,
by
attention
further
to
congressional
of a
dence
intention
di
panel
explains,
As the
opinion
the three-
lands,”
mqst
courts
accord
minish Indian
Bartlett,
v.
part framework of Solem
to
solicitude”
Indian tribes
“traditional
463,
1161,
U.S.
212 at
Creek Nation refused
“[w]her¿
recognized
Solem itself
Congress began imposing
so
re-
negotiate,
nomlndian settlers flooded into
opened
years,
following
strictions. Over the
five
portion of a reservation and the
has
area
destroyed
legal sys-
the Creek
,....
long since
its
lost
Indian character
de
tem
threatened
terminate Creek facto,
jure,
if not de
may
diminishment
agreed
unless the
ownership
land
tribe
have,
occurred.”
threat,
Faced
allotment.
with this
But,
continued,
the Solem Court
this
agreed
Nation
Creek
allotment
recognition only extends so far: “When
by
land owned
Nation
Most
both an act
its legislative history
fail
then allotted
individual
members
provide
compelling
substantial and
evi
Murphy
Royal,
tribe.
866 F.3d
congressional
dence of a
intention to di
(10th
2017).
1201-02
Cir.
lands,
minish Indian
we are bound
our
*65
parties hotly dispute
the inferencés
traditional
for
solicitude
tribes
from
history
to be drawn
of the Creek
to rule
did
that diminishment
not take
I am not
for
sympathy
place
Nation.
without
and that the old reservation bound
argument
472, 104
Congress’s
that
ser-
opening.”
Oklahoma’s
aries survived the
Id. at
actions'
effectively
ies of
here
constitute
S.Ct. 1161. And Parker
ap
this
confirmed
disestablishment,
panel properly
proach.
Murphy,
but the
have suited un of. millennia. Sometimes there will be round hole Oklahoma statehood. As Jus wrote, way another. equivocal “[e]xtraordinary evidence one or tice Cardozo sitúa fairly subjected may wisely be tions fitting for regulations that are
to tests or Pokora v. commonplace or normal.” 105-06, Co., Ry.
Wabash (1934). 580, L.Ed. 1149 sum, interesting challenging and this good
case makes candidate
Court review. America,
UNITED STATES
Plaintiff-Appellee, SPRINGER,
Lindsey Kent
Defendant-Appellant.
No. 15-5109 *66 Appeals,
United States Circuit.
Tenth 13, 2017
FILED November notes cite case that standard of review. formidable support his view that AEDPA does questions. It apply jurisdictional 2. The AEDPA Standard argues argu- has Murphy any Mr. waived against application ment AEDPA’s be- general We first discuss AEDPA’s supported ap- he the district cause court’s then focus framework and on the statute’s plication AEDPA below. The “contrary provision to” clause that because arguments. disputes his constitutional guides analysis. our not decide whether this issue is We need waivable, Murphy whether has waived a. Overview here, whether AEDPA is the even “AEDPA erects a formidable appropriate to as- standard. We choose prison barrier to federal habeas relief for deciding ap- sume without AEDPA adjudicated ers claims have been whose plies. — Titlow, U.S. —, Burt v. state court.” took approach Magnan this We (2013). L.Ed.2d Trammell, (10th 2013). 719 F.3d Cir. adjudicates When a state court a claim on agree Magnan open Both sides left merits, prohibits AEDPA AEDPA question applies whether granting courts from relief unless habeas country jurisdictional Mag- claims. adjudication court’s of the claim: state nan concerned an Indian defendant whom (1) an Oklahoma state court had resulted a decision was con- sentenced