Petition for Writ of Certiorari — Tommy Sharp, Interim Warden, Petitioner v. Patrick Dwayne Murphy

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No. 17IN T H E

Supreme Court of the United States

TERRY ROYAL, WARDEN,

OKLAHOMA STATE PENITENTIARY,

Petitioner,

PATRICK DWAYNE MURPHY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

MIKE HUNTER

Attorney General of

Oklahoma

MITHUN MANSINGHANI

Solicitor General

JENNIFER CRABB

Asst. Attorney General

MICHAEL K. VELCHIK

RANDALL YATES

Asst. Solicitors General

OKLAHOMA OFFICE OF THE

ATTORNEY GENERAL

313 NE Twenty-First St.

Oklahoma City, OK 73105

LISA S. BLATT

Counsel of Record

SALLY L. PEI

STEPHEN K. WIRTH

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Mass. Ave., NW

Washington, DC 20001

(202) 942-5000

lisa.blatt@arnoldporter.com

R. REEVES ANDERSON

ARNOLD & PORTER

KAYE SCHOLER LLP

370 Seventeenth Street

Suite 4400

Denver, CO 80202

CAPITAL CASE

QUESTION PRESENTED

Whether the 1866 territorial boundaries of the

Creek Nation within the former Indian Territory of

eastern Oklahoma constitute an “Indian reservation”

today under 18 U.S.C. § 1151(a).

PARTIES TO THE PROCEEDING

Petitioner Terry Royal is the Warden of the Oklahoma State Penitentiary. Petitioner was the respondent in the district court and the appellee in the

Tenth Circuit.

Respondent Patrick Murphy was the petitioner

in the district court and the appellant in the Tenth

Circuit.

TABLE OF CONTENTS

Page

Opinions below ............................................................1

Jurisdiction ..................................................................1

Statutes involved .........................................................1

Statement ....................................................................2

A. Historical background ......................................4

B. Factual background and proceedings below .. 12

Reasons the writ should be granted ......................... 15

I. The question presented is critically important... 15

A. The affected area is massive .......................... 15

B. The question presented implicates

fundamental questions of sovereignty ........... 18

C. The decision below is creating enormous

disruption and uncertainty ............................ 21

II. The decision below is wrong ................................ 23

A. Congress dismantled Indian Territory and

tribal boundaries to create Oklahoma ........... 24

B. Congress conferred judicial authority over

Indian Territory to Oklahoma ....................... 26

C. Solem does not support the decision below ... 29

Conclusion ................................................................. 35

iii

Table of Contents—Continued

Page

Appendices

Appendix A: Court of appeals amended

opinion (Nov. 9, 2017) ..................... 1a

Appendix B: District court opinion and order

(Aug. 1, 2007) .............................. 134a

Appendix C: State post-conviction court

opinion (Dec. 7, 2005) ................. 203a

Appendix D: Court of appeals order denying

rehearing (Nov. 9, 2017) ............. 228a

Appendix E: Court of appeals order staying

mandate (Nov. 16, 2017) ............ 233a

TABLE OF AUTHORITIES

Page(s)

Cases

Alaska v. Native Vill. of Venetie Tribal Gov’t,

522 U.S. 520 (1998)................................................. 19

Bailey v. United States,

104 P. 917 (Okla. Crim. App. 1909) ....................... 27

Barnett v. Way,

119 P. 418 (Okla. 1911) ............................................ 5

Bigfeather v. State,

123 P. 1026 (Okla. Crim. App. 1912) ..................... 28

Cotton Petroleum Corp. v. New Mexico,

490 U.S. 163 (1989)................................................. 19

Coyle v. Smith,

221 U.S. 559 (1911)................................................. 34

DeCoteau v. District Cty. Ct.,

420 U.S. 425 (1975)................................................. 33

Dolgencorp, Inc. v. Miss. Band of Choctaw Indians,

746 F.3d 167 (5th Cir. 2016) .................................. 20

Hagen v. Utah,

510 U.S. 399 (1994)........................................... 32, 33

Haikey v. State,

105 P. 313 (Okla. Crim. App. 1909) ....................... 27

Heckman v. United States,

224 U.S. 413 (1912)................................................... 8

Hendrix v. United States,

219 U.S. 79 (1911)................................................... 28

Iowa Mut. Ins. Co. v. LaPlante,

480 U.S. 9 (1987)..................................................... 20

Jefferson v. Fink,

247 U.S. 288 (1918)................................................... 7

Cases—Continued

Page(s)

In re Jonas Jones,

231 U.S. 743 (1913)................................................. 27

Jones v. State,

107 P. 738 (Okla. Crim. App. 1910) ....................... 27

Keys v. United States,

103 P. 874 (Okla. Crim. App. 1909) ....................... 27

Marlin v. Lewallen,

276 U.S. 58 (1928)............................................... 7–10

Mattz v. Arnett,

412 U.S. 481 (1973)..................................... 16, 29, 30

McDougal v. McKay,

237 U.S. 372 (1915)................................................... 7

Montana v. United States,

450 U.S. 544 (1981)................................................. 20

Nebraska v. Parker,

136 S. Ct. 1072 (2016)........................... 15, 16, 20, 29

Okla. Dep’t of Envtl. Quality v. Envtl. Prot. Agency,

740 F.3d 185 (D.C. Cir. 2014) ................................. 19

Okla. Tax Comm’n v. Sac & Fox Nation,

508 U.S. 114 (1993)................................................. 19

Phillips v. United States,

103 P. 861 (Okla. Crim. App. 1909) ....................... 27

Price v. United States,

101 P. 1036 (Okla. Crim. App. 1909) ..................... 27

Puyallup Tribe, Inc. v. Dep’t of Game of State

of Wash.,

433 U.S. 165 (1977)................................................. 20

Ramah Navajo Sch. Bd., Inc. v. Bureau of

Revenue of N.M.,

458 U.S. 832 (1982)........................................... 24, 25

vii

Cases—Continued

Page(s)

Rice v. Rehner,

463 U.S. 713 (1983)................................................. 20

Rollen v. State,

125 P. 1087 (Okla. Crim. App. 1912) ..................... 28

Rosebud Sioux Tribe v. Kneip,

430 U.S. 584 (1977)............................... 16, 26, 32, 33

Santa Clara Pueblo v. Martinez,

436 U.S. 49 (1978)................................................... 20

Seymour v. Superintendent of Wash. State

Penitentiary,

368 U.S. 351 (1962)........................................... 15, 30

Sharp v. United States,

118 P. 675 (Okla. Crim. App. 1911) ....................... 27

Sizemore v. Brady,

235 U.S. 441 (1914)................................................. 10

Solem v. Bartlett,

465 U.S. 463 (1984)............. 14, 18, 24, 26, 29–32, 34

South Dakota v. Yankton Sioux Tribe,

522 U.S. 329 (1998)..................................... 30, 32, 34

Stephens v. Cherokee Nation,

174 U.S. 445 (1899)................................................... 7

Tiger v. W. Inv. Co.,

221 U.S. 286 (1911)................................................... 8

United States v. Allen,

171 F. 907 (E.D. Okla. 1909) ............................ 11, 25

United States v. Celestine,

215 U.S. 278 (1909)................................................. 30

Washington v. Miller,

235 U.S. 422 (1914)................................................... 9

viii

Cases—Continued

Page(s)

White Mountain Apache Tribe v. Bracker,

448 U.S. 136 (1980)................................................. 19

Williams v. Lee,

358 U.S. 217 (1959)................................................. 24

Wilson v. United States,

111 P. 659 (Okla. Crim. App. 1910) ....................... 27

Woodward v. de Graffenried,

238 U.S. 284 (1915)........................................ 7, 8, 17

Statutes

18 U.S.C. § 1151 .................................................... 1, 23

18 U.S.C. § 1151(a) ........................................ 13–15, 18

18 U.S.C. § 1151(b) .............................................. 13, 14

18 U.S.C. § 1151(c) .............................................. 13, 14

18 U.S.C. § 1152 ........................................................ 18

18 U.S.C. § 1153 .................................................. 13, 18

18 U.S.C. § 1153(a) ............................................ 1, 2, 26

25 U.S.C. § 1302(a)(7) ............................................... 18

28 U.S.C. § 1254(1) ...................................................... 1

28 U.S.C. § 2254 ........................................................ 14

28 U.S.C. § 2254(d) .................................................... 31

Act of Mar. 1, 1889, ch. 333, 25 Stat. 783................... 6

Act of Mar. 3, 1893, ch. 209, 27 Stat. 612....... 7, 32, 33

Act of Mar. 1, 1895, ch. 145, 28 Stat. 693................... 6

Act of June 10, 1896, ch. 398, 29 Stat. 321 ................ 9

Act of July 1, 1902, ch. 1375, 32 Stat. 716 ............... 10

Act of Mar. 3, 1903, ch. 994, 32 Stat. 982................. 10

Act of Apr. 28, 1904, ch. 1824, 33 Stat. 573 ............. 26

Act of May 27, 1908, ch. 199, 35 Stat. 312. .............. 34

Page(s)

Act of Apr. 10, 1926, ch. 115, 44 Stat. 239. .............. 34

Act of June 26, 1936, ch. 831, 49 Stat. 1967. ........... 29

Act of Aug. 4, 1947, ch. 458, 61 Stat. 731. ................ 34

Curtis Act,

ch. 517, 30 Stat. 495 (1898) ................................ 9, 10

Five Tribes Act,

ch. 1876, 34 Stat. 137 (1906) ...................... 11, 25, 33

General Allotment Act,

ch. 119, 24 Stat. 388 (1887) .................................... 30

Indian Child Welfare Act of 1978,

Pub. L. No. 95-608, 92 Stat. 3069 .......................... 20

Indian Department Appropriations Act,

ch. 3, 30 Stat. 62 (1897) ............................................ 9

Major Crimes Act,

ch. 341, 23 Stat. 362 (1885) .............................. 27, 28

Oklahoma Enabling Act,

ch. 3335, 34 Stat. 267 (1906) ...................... 11, 12, 26

Statutes—Continued

Treaties & Agreements

Convention between the Choctaws and Chickasaws,

Jan. 17, 1837, 7 Stat. 605......................................... 5

Convention with the Cherokees,

May 6, 1828, 7 Stat. 312 .......................................... 5

Convention with the Chickasaws,

May 24, 1834, 7 Stat. 450 ........................................ 5

Creek Allotment Agreement,

ch. 676, 31 Stat. 861 (1901) ..............................10, 33

Supplemental Allotment Agreement,

ch. 1323, 32 Stat. 500 (1902) ................................. 33

Treaty with the Choctaws,

Sept. 27, 1830, 7 Stat. 333 ....................................... 5

Treaties & Agreements—Continued

Page(s)

Treaty with the Creek Tribe of Indians,

Mar. 24, 1832, 7 Stat. 366 ........................................ 5

Treaty with the Creeks and Seminoles,

Aug. 7, 1856, 11 Stat. 699 ........................................ 5

Treaty with the Florida Tribes of Indians,

Sept. 18, 1823, 7 Stat. 224 ....................................... 4

Treaty with the Yankton Sioux,

Apr. 19, 1858, 11 Stat. 743 ....................................... 4

Books

Jeffrey Burton, Indian Territory and the

United States (1995) ................................................ 6

Kent Carter, The Dawes Commission and the

Allotment of the Five Civilized Tribes, 1893–

1914 (1999)........................................................ 4, 6, 8

Angie Debo, And Still the Waters Run (1940) ....... 5, 8

Gaston Litton, Creek Papers 1870–1930 (1937) ...... 11

Grant Foreman, Indian Removal: The Emigration of the Five Civilized Tribes (1972 ed.) .............. 4

Arrell Gibson, Oklahoma: A History of Five

Centuries (2d ed. 1981) ................................... 6, 7, 10

Roy Gittinger, The Formation of Oklahoma

(1939)............................................................... 7, 8, 10

Danney Goble, Progressive Oklahoma (1980) ........... 6

Luther B. Hill, A History of the State of

Oklahoma (1910) ............................................ 7, 9, 10

Other Authorities

31 Cong. Rec. 5593 (1898) .......................................... 9

Dep’t of Justice, Indian Country Criminal

Jurisdictional Chart (2017) ................................... 18

Other Authorities—Continued

Page(s)

Census Bureau, The American Indian and

Alaska Native Population: 2010 (2012) .......... 16, 18

Census Bureau, Interactive Population Map .......... 18

Census Bureau, Population of Oklahoma and

Indian Territory (1907).......................................... 12

Census Bureau, QuickFacts: Tulsa city,

Oklahoma (2016) ................................................... 16

$FOTVT0GmDF Extra Census Bulletin: The Five

Civilized Tribes in Indian Territory (1894) ......... 5, 6

$FOTVT0GmDF Report on Indians Taxed and

Not Taxed (1894) .................................................... 30

Muscogee (Creek) Nation Const. ............................. 20

S. Rep. No. 54-12 (1895) ............................................. 8

S. Rep. No. 59-5013 (1907)...................................11, 25

Samantha Vicent, Shannon Kepler cites Creek

Nation citizenship, ‘Indian Country’ ruling in

asking for murder case to be tossed, Tulsa

World, Aug. 11, 2017 .........................................22, 23

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Tenth Circuit is reported at 875 F.3d

896 (10th Cir. 2017). App. 1a. The district court’s

opinion is reported at Murphy v. Sirmons, 497 F.

Supp. 2d 1257 (E.D. Okla. 2007). App. 134a. The

opinion of the Oklahoma Court of Criminal Appeals

is reported at Murphy v. State, 124 P.3d 1198 (Okla.

Crim. App. 2005). App. 203a.

JURISDICTION

The United States Court of Appeals for the Tenth

Circuit entered judgment on August 8, 2017. The

court denied rehearing and issued an amended opinion on November 9, 2017. App. 1a. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTES INVOLVED

Section 1153(a) of Title 18, United States Code,

provides, in relevant part: “Any Indian who commits

against the person or property of another Indian or

other person any of the following offenses, namely,

murder … within the Indian country, shall be subject

to the same law and penalties as all other persons

committing any of the above offenses, within the exclusive jurisdiction of the United States.”

Section 1151 of Title 18, United States Code, provides, in relevant part: “[T]he term ‘Indian country’,

as used in this chapter, means (a) all land within the

limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rightsof-way running through the reservation.”

STATEMENT

In a decision that strikes at the core of Oklahoma’s identity and sovereignty, the Tenth Circuit held

that the State lacks jurisdiction to prosecute a capital murder committed in eastern Oklahoma by a

member of the Creek Nation. The panel held that

Congress never disestablished the 1866 boundaries

of the Creek Nation, and all lands within those

boundaries are therefore “Indian country” subject to

exclusive federal jurisdiction under 18 U.S.C.

§ 1153(a) for serious crimes committed by or against

Indians. This holding has already placed a cloud of

doubt over thousands of existing criminal convictions

and pending prosecutions.

The former Creek Nation territory encompasses

3,079,095 acres and most of the City of Tulsa.

Whether an area this large and populous is an Indian reservation warrants certiorari. But there is

more. Litigants have invoked the decision below to

reincarnate the historical boundaries of all “Five Civilized Tribes”—the Creeks, Cherokees, Choctaws,

Chickasaws, and Seminoles. This combined area encompasses the entire eastern half of the State. The

decision thus threatens to effectively redraw the map

of Oklahoma.

Prisoners have begun seeking post-conviction relief in state, federal, and even tribal court, contending that their convictions are void ab initio. Civil litigants are using the decision to expand tribal jurisdiction over non-members. All of this creates intolerable

uncertainty for over 1.8 million Oklahomans who

may now live on an Indian reservation, with all the

civil, criminal, and regulatory consequences that

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Chief Judge Tymkovich stated below that “this

challenging and interesting case makes a good candidate for Supreme Court review” and that “this may

be the rare case where the Supreme Court wishes” to

revisit the governing standard for the disestablishment of Indian reservations. App. 232a. The United

States joined Oklahoma’s petition for rehearing en

banc, both because the “panel erred, and because this

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and wide-ranging implications for law enforcement.”

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The Tenth Circuit believed that this Court’s

precedents foreclosed the court from fully accounting

for Oklahoma’s unique history. As Chief Judge Tymkovich observed, “the square peg” of this Court’s Indian reservation decisions “is ill suited for the round

hole of Oklahoma statehood.” App. 232a. But Oklahoma’s history is dispositive here. Oklahoma was

formed by the merger of Oklahoma Territory to the

west and Indian Territory to the east. The latter encompassed the land of all Five Tribes, which covered

the eastern half of present-day Oklahoma. To prepare the Indian Territory for statehood, Congress

systematically dismantled tribal governments and

their communal ownership of lands. The birth of our

forty-sixth State marked the culmination of a twodecade legislative campaign to dissolve the Five

Tribes’ communal territories.

If not corrected, the decision below could result in

the largest abrogation of state sovereignty by a federal court in American history. It has been universally understood since statehood that the historical

boundaries of the Five Tribes’ territories are not reservations. Since its founding, the State has prosecuted offenses committed by or against Indians on lands

within the former Indian Territory. Meanwhile, nei-

ther the federal government nor the tribes have

prosecuted such crimes under the theory that the

land is an Indian reservation. Because the decision

below casts that century of precedent aside and has

already unleashed a torrent of litigation and confusion, this Court’s immediate attention is warranted.

A. Historical background

The Creek, Cherokee, Choctaw, Chickasaw, and

Seminole Nations form their own unique chapter in

American history. “These tribes were collectively

known almost universally as the Five Civilized

Tribes because many of them had adopted so many

elements of white culture that reformers often pointed to them as models for what assimilation could accomplish.” Kent Carter, The Dawes Commission and

the Allotment of the Five Civilized Tribes, 1893–1914,

at 1 (1999).

The Five Tribes once inhabited land stretching

across what is now Georgia, most of Alabama, and

the Florida panhandle. In the 1830s, the United

States forced the Five Tribes to abandon their homes

and migrate west to the designated “Indian Territory” in present-day Oklahoma. Grant Foreman, Indian Removal: The Emigration of the Five Civilized

Tribes (1972 ed.). Unlike other tribes, for whom the

United States set aside federal lands as reservations

where the Indians would live under federal patronage, see, e.g., Treaty with the Florida Tribes of Indians, Sept. 18, 1823, 7 Stat. 224; Treaty with the

Yankton Sioux, Apr. 19, 1858, 11 Stat. 743, the Five

Tribes received patents for land in fee simple. The

United States promised the Five Tribes that as long

as they occupied their lands, they would never be

subject to the laws of any State or Territory, and

their land would never be made part of any State or

Territory. Treaty with the Creek Tribe of Indians art.

XIV, Mar. 24, 1832, 7 Stat. 366, 368.1

After the Civil War, in response to the tribe’s alliance with the Confederacy, the United States forced

the Creek Nation to cede the entire western half of

its land. The United States obtained similar cessions

from the other four tribes. Parts of those lands were

used for settlement of other tribes, but the rest—

which became Oklahoma Territory—was eventually

opened to non-Indian settlement beginning with the

historic land run of 1889. Angie Debo, And Still the

Waters Run 6 (1940). The remainder of the Five

Tribes’ land maintained its status as Indian

Territory.

Congressional promises of perpetual independence and seclusion could not withstand the relentless

tide of western settlement. Railroads, burgeoning

coal and cattle industries, and the settlement of the

Western frontier facilitated migration of non-Indians

onto tribal lands. Non-Indians could not legally own

land in the Five Tribes’ territories, since communal

title to that land was vested in the tribes, and even

Indians enjoyed only rights of use or occupation. See

Barnett v. Way, 119 P. 418, 419 (Okla. 1911). But that

did not stop the encroachment. Within two generations after their arrival west of the Mississippi, Indians were a slim majority of the population in Creek

territory, and just 28% of the entire population of the

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Convention with the Cherokees pmbl., May 6, 1828, 7 Stat.

312; Convention with the Chickasaws art. II, May 24, 1834, 7

Stat. 450; Convention between the Choctaws and Chickasaws

art. I, Jan. 17, 1837, 7 Stat. 605; Treaty with the Choctaws art.

IV, Sept. 27, 1830, 7 Stat. 333; Treaty with the Creeks and

Seminoles arts. I, IV, Aug. 7, 1856, 11 Stat. 699, 700.

Census Bulletin: The Five Civilized Tribes in Indian

Territory 4 (1894).

The tribal governments were ill-equipped to govern the rapidly increasing non-Indian population.

Rampant disorder and lawlessness reigned. In the

Creek Nation, Indians were subject to harsh laws

and penalties under the tribal code, see Arrell Gibson, Oklahoma: A History of Five Centuries 137 (2d

ed. 1981), but non-Indians lived beyond the reach of

tribal courts. Federal district courts in neighboring

Arkansas (and later in Kansas and Texas) had criminal jurisdiction over cases involving U.S. citizens

arising in Indian Territory. See Jeffrey Burton, Indian Territory and the United States 71 (1995). But

given the distance, “only the most depraved—and

least fortunate—of bandits were hauled before … the

Fort Smith bench of ‘Hanging Judge’ Isaac Parker.”

Danney Goble, Progressive Oklahoma 71 (1980). Violent crime went largely unpunished, and business

agreements were effectively unenforceable. Id. Congress responded by creating federal territorial courts

in Indian Territory and extending Arkansas law to

govern non-Indians in the Territory. Act of Mar. 1,

1889, ch. 333, § 1, 25 Stat. 783; Act of Mar. 1, 1895,

ch. 145, § 4, 28 Stat. 693, 696.

The increasing assertion of federal authority in

Indian Territory signaled Congress’s broader repudiation of the policy of seclusion in favor of assimilation and eventual statehood for the Indian Territory.

Proposals to convert the area—an enclave of mineralrich, untilled land with a booming non-Indian popuMBUJPOJOUP POF PS NPSF 4UBUFT IBE CFFO nPBUFE JO

Congress every year since 1870. Carter, supra, at 2.

But because Congress had promised the Five Tribes

communal land ownership and autonomous governments according to their territorial boundaries, erad-

icating these foundations was a prerequisite for the

incorporation of Indian Territory into a new State.

Gibson, supra, at 193–94; see also Luther B. Hill, A

History of the State of Oklahoma 337–45 (1910).

The “steady drift across the [Missouri] border for

many years, and the presence among the Indians of

hundreds of thousands of persons who were outlandFSTVOEFSUIFJSPXOnBHmOBMMZNBEFJUOFDFTTBSZUP

abolish the tribal organization.” Roy Gittinger, The

Formation of Oklahoma 211 (1939); see also Marlin v.

Lewallen 64 i$POHSFTT mOBMMZ

assumed complete control over [the Creek Nation]

and undertook to terminate their government and

distribute the tribal lands among the individuals.”

McDougal v. McKay, 237 U.S. 372, 381 (1915).

With the goal of statehood in mind, Congress

proceeded to dissolve the Five Tribes’ communal land

tenure and to end self-rule. In 1893, Congress appointed a three-person commission, led by Senator

Henry Dawes, to “enter into negotiations with the

[Five Tribes] for the purpose of the extinguishment of

the national or tribal title to any lands within that

Territory now held by any and all of such nations or

tribes,” whether by cession, allotment, or some other

method, “to enable the ultimate creation of a State or

States of the Union which shall embrace the lands

within said India[n] Territory.” Act of Mar. 3, 1893,

ch. 209, § 16, 27 Stat. 612, 645; see also Jefferson v.

Fink, 247 U.S. 288, 291 (1918); McDougal, 237 U.S. at

380–81; Woodward v. de Graffenried, 238 U.S. 284,

295 (1915); Stephens v. Cherokee Nation, 174 U.S.

445, 446 (1899).

Concomitant with the creation of a new State

was “the dissolution of the Five Civilized Tribes.” Gittinger, supra, at 236. Congress established the Com-

mission “in pursuance of a policy which looked to the

mOBMEJTTPMVUJPOPGUIFUSJCBMHPWFSONFOUwTiger v. W.

Inv. Co., 221 U.S. 286, 300 (1911); Marlin, 276 U.S. at

61 (same). As the Secretary of the Interior impressed

upon the Commission, “success in your negotiations

will mean the total abolition of the tribal autonomy

of the Five Civilized Tribes and the wiping out of the

quasi-independent governments within our territorial limits. It means, also, ultimately, … the admission

of another state or states in the Union.” Carter, supra, at 3 (quoting letter from Secretary Hoke Smith

to Henry Dawes).

Negotiations failed, and “when the tribal governments refused to cooperate in their own demise,”

Congress used its legislative power to force the completion of the Commission’s work. Id. at ix. In annual

congressional reports, the Dawes Commission painted a bleak picture of Indian Territory plagued by corruption, misrule, and crime. In 1895, the Commission

wrote: “It is … the imperative duty of Congress to assume at once the political control of the Indian Territory.” S. Rep. No. 54-12, at 20. The Commission considered the Five Tribes’ “so-called governments …

wholly corrupt, irresponsible, and unworthy to be

longer trusted” to govern. Id. at 19; see Woodward,

238 U.S. at 296–98; Heckman v. United States, 224

U.S. 413, 434–35 (1912).

Motivated by a desire to break up the tribes’

communal land tenure and in response to the disorder it perceived in Indian Territory, see Debo, supra,

at 24–25, the Commission recommended the establishment of a territorial government and the extension of U.S. jurisdiction over all matters relating to

the use and occupation of tribal lands, S. Rep. No. 5412, at 20. Congress thereafter authorized the Commission to survey Indian Territory and enroll tribal

members in preparation for allotment, with or without tribal consent. Act of June 10, 1896, ch. 398, § 1,

29 Stat. 321, 339, 343. Congress extended the authority of the federal courts, while steadily diminishing

the tribal courts and tribal laws. Hill, supra, at 318.

In a concerted campaign to abolish race-based jurisdictional distinctions in Indian Territory, Congress in

1897 rendered tribal courts obsolete by conferring

exclusive jurisdiction on federal courts to try all civil

and criminal cases, and by subjecting all people in

Indian Territory “irrespective of race” to Arkansas

and federal law. Indian Department Appropriations

Act, ch. 3, § 1, 30 Stat. 62, 83 (1897); Marlin, 276 U.S.

at 61–62; Washington v. Miller, 235 U.S. 422, 424–25

(1914).

In 1898, Congress passed the Curtis Act, ch. 517,

30 Stat. 495, “to complete the destruction of the tribal governments.” Carter, supra, at 34. To that end,

Congress abolished tribal courts, § 28, 30 Stat. at

504–05, and banned federal courts from enforcing

tribal law, § 26, 30 Stat. at 504. Senator William

Bate—one of few dissenting voices to the Act’s passage—called the Curtis Act the “consummation” of

the United States’ abrogation of its treaties with the

Five Tribes. The Act “sweeps all the laws of the Indians away, all their courts of justice, all their juries,

BMM UIFJS MPDBM PGmDFST BOE BMM UIF SJHIUT UIFZ IBWF

under the treaties which they have been given and

guaranteed by the Government of the United States.

… [W]e go along and encroach upon them inch by

inch, Congress after Congress, until at last you have

got to the main redoubt, and here it is destroyed.” 31

Cong. Rec. 5593 (1898).

The Curtis Act also directed the Dawes Commission to allot the Five Tribes’ land following tribal enrollment. § 11, 30 Stat. at 497. The Seminoles, Choc-

taws, and Chickasaws had already reached allotment

agreements with the United States, and the Creeks

and Cherokees quickly capitulated. The Creek Allotment Agreement, ch. 676, 31 Stat. 861 (1901), provided “for a permanent enrollment of the members of

the tribe, for appraising most of the lands and allotting them in severalty with appropriate regard to

their value, for using the tribal funds in equalizing

allotments, for distributing what remained, for issuing deeds transferring the title to the allotted lands

to the several allottees, and for ultimately terminating the tribal relation.” Sizemore v. Brady, 235 U.S.

441, 447 (1914); accord Marlin, 276 U.S. at 63. Congress provided that each of the Five Tribes’ governments would terminate by March 4, 1906. Creek Allotment Agreement § 46, 31 Stat. at 872; Curtis Act

§ 29, 30 Stat. at 512 (Choctaw and Chickasaw); Act of

July 1, 1902, ch. 1375, § 63, 32 Stat. 716, 725 (Cherokee); Act of Mar. 3, 1903, ch. 994, § 8, 32 Stat. 982,

1008 (Seminole).

All told, the Dawes Commission considered

300,000 claims to tribal membership, enrolled more

than 100,000 tribal members, and allotted

15,794,400 acres of land in Indian Territory—an area

twice the size of Maryland. Gibson, supra, at 195.

5IJT iXBT B WBTU BOE EJGmDVMU VOEFSUBLJOH BOE OP

previous disposition of either lands or tribes afforded

precedents for guidance.” Hill, supra, at 323. By this

time, tribal governments “were little more than consulting agents in the management of the business of

the tribes.” Gittinger, supra, at 233. The Five Tribes

iIBEDFBTFEUPFYJTUFYDFQUBTmOBODJBMDPSQPSBUJPOT w

id. at 234, whose assets were being liquidated and affairs wound up.

In April 1906, Congress passed the Five Tribes

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of the Five Civilized Tribes in the Indian Territory.”

Ch. 1876, 34 Stat. 137. Congress closed the tribal

rolls, abolished tribal taxes, ended the tribes’ control

of tribal schools, and directed the Secretary of the Interior to seize and sell all tribal buildings and furniture. Unallotted lands were to be sold by the government, with the proceeds applied to the Tribe’s

debts and any remainder paid out per capita to individual tribal members. §§ 16–17, 34 Stat. at 143–44.

Congress extended tribal governments, but with severe limitations on their operations and authority.

§ 28, 34 Stat. at 148.

As the governor of the Choctaw Nation put it in

November 1906, the tribal government was “only a

shell of a government, it is hardly anything. … I do

not feel any longer that I act as chief, that I have any

authority. … Now, the only authority that I have is to

sign deeds.” S. Rep. No. 59-5013, pt. 1, at 886 (1907).

In his 1908 address to the Creek National Council,

Chief Moty Tiger said, “the affairs of the Creek are so

nearly closed up, insofar as any notion of the tribal

authorities will affect the same, that there is but little I can call to your attention.” Gaston Litton, Creek

Papers 1870–1930, at 401 (1937), https://goo.gl/

Jm17L6. One federal judge similarly commented

that tribal governments were “a continuance of the

tribe in mere legal effect, just as in many states corporations are continued as legal entities after they

have ceased to do business, and are practically dissolved, for the purpose of winding up their affairs.”

United States v. Allen, 171 F. 907, 921 (E.D. Okla.

1909).

Two months after passing the Five Tribes Act,

Congress enacted the Oklahoma Enabling Act, authorizing the creation of the State through the merger of Indian and Oklahoma Territories. Ch. 3335, 34

Stat. 267 (1906). Congress directed the transfer of all

cases arising under federal law, pending in territorial courts in Indian and Oklahoma Territory at the

time of statehood, to the newly created U.S. district

courts for the Western and Eastern Districts of Oklahoma. § 16, 34 Stat. at 276. All other cases were

transferred to state court. § 20, 34 Stat. at 277. Congress also extended the laws of Oklahoma Territory

to Indian Territory (supplanting Arkansas law), until

the new Oklahoma legislature provided otherwise.

§ 13, 34 Stat. at 275.

The stage was thus set for Oklahoma’s accession

to statehood. When President Theodore Roosevelt

signed a proclamation admitting Oklahoma to the

Union on November 16, 1907, Indians constituted

just 5% of the population of the new State. Census

Bureau, Population of Oklahoma and Indian Territory 8 (1907). From Oklahoma’s entrance to the Union

to the present day, the State has exercised criminal

jurisdiction over all of its citizens, Indians and nonIndians alike, on the understanding that the former

Indian Territory is not a reservation. Conversely, neither federal nor tribal prosecutors have treated the

former Indian Territory as a reservation.

B. Factual background and proceedings below

1. On August 28, 1999, Patrick Murphy mutilated and murdered his girlfriend’s former lover, a man

named George Jacobs. Both men are members of the

Creek Nation. The crime began when Mr. Murphy

used his vehicle to force Mr. Jacobs’ car off the road

late at night in a rural area of Henryetta, Oklahoma.

Mr. Murphy and two accomplices pulled Mr. Jacobs

out of the car and began to beat him. Over the course

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ered Mr. Jacobs’ genitals with a folding knife and

stuffed them into Mr. Jacobs’ mouth, pulled Mr. Jacobs into a roadside ditch, slashed his throat and

chest, and “tried to stomp on [his] head like a pancake.” App. 140a. They left Mr. Jacobs to die beside

the deserted road. Mr. Murphy then instructed his

accomplices to drive to a nearby home to kill Mr. Jacobs’ son, George Jr. Someone in the house intervened, saving George Jr.’s life. Later that evening,

Mr. Murphy confessed to both his girlfriend and his

cousin. Id. Mr. Murphy was convicted in state court

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B )JT DPOWJDUJPO BOE TFOUFODF XFSF BGmSNFE PO

appeal. Id.

2. In his second application for state postconviction relief, in 2004, Mr. Murphy argued that

Oklahoma courts lacked jurisdiction to convict him

because he is an Indian and, he alleged, he committed his crime within the boundaries of the Creek reservation and thus could only be tried in federal court

under the Major Crimes Act. That Act gives federal

courts exclusive jurisdiction over certain crimes in

i*OEJBO $PVOUSZ w 64$ f BOE EFmOFTi*O

dian Country” to include an “Indian reservation,” id.

§ 1151(a). The state court concluded that Oklahoma’s

jurisdiction was proper. The Oklahoma Court of

Criminal Appeals agreed and denied post-conviction

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theory that the 1866 boundaries of the Creek territory remained intact as a “reservation.” See App. 222a–

224a.2

The state courts also rejected Mr. Murphy’s claim that the

crime occurred in Indian Country under §§ 1151(b) and (c),

which pertain to “dependent Indian communities” and “Indian

allotments.” App. 215a–222a, 224a–225a.

Mr. Murphy petitioned for a writ of certiorari on

the question whether his crime was committed within Indian Country. Murphy v. Oklahoma, No. 0510787. In response to this Court’s invitation, the

6OJUFE 4UBUFT mMFE B CSJFG FYQSFTTJOH UIF WJFX UIBU

Congress has extinguished the historic boundaries of

the Creek Nation. U.S. Br. at 15–20, 2007 WL

1319320. This Court denied certiorari. 551 U.S. 1102

(2007).

3. On federal habeas review under 28 U.S.C.

§ 2254, Mr. Murphy asserted that the Oklahoma

Court of Criminal Appeals had misapplied federal

law on the question whether he committed the crime

in Indian Country. The district court held that the

state court’s decision rejecting Mr. Murphy’s jurisdictional challenge was neither contrary to nor an unreasonable application of clearly established federal

law and denied federal habeas relief. App. 184a–

195a.

4. The Tenth Circuit reversed. The court held

that federal law clearly established that Mr. Murphy’s crime occurred in Indian Country under

18 U.S.C. § 1151(a), because Congress never disestablished the 1866 boundaries of the Creek territory,

which encompassed the land where the murder occurred. App. 132a–133a. The panel applied the threepart framework set forth in Solem v. Bartlett, 465

U.S. 463 (1984), which looks to statutory text, surrounding circumstances, and subsequent history. In

an extended analysis of the main statutes at issue,

App. 78a–102a, the Tenth Circuit concluded that the

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text “expressly” disestablished or diminished the

boundaries of the Creek Nation. App. 96a. The court

further concluded that the contemporaneous and

subsequent history did not “unequivocally reveal”

congressional intent to erase the historical boundaries of the Creek territory. App. 107a, 119a (quoting

Nebraska v. Parker, 136 S. Ct. 1072, 1080 (2016)).3

The Tenth Circuit denied rehearing on November

9, 2017. Chief Judge Tymkovich concurred separately

to urge “further attention by the Supreme Court.”

App. 230a. The panel stayed issuance of the mandate

to permit Oklahoma to seek this Court’s review. App.

233a.

REASONS THE PETITION SHOULD BE GRANTED

The question presented is critically important

The question of whether the historical boundaries of the Creek Nation, or the Five Tribes more

generally, constitute Indian Country under 18 U.S.C.

f B IBT FOPSNPVT SBNJmDBUJPOT GPS UIF 4UBUF

the federal government, the Five Tribes, and over

1.8 million Oklahoma residents. Since the birth of

the State, the universal understanding has been that

the former Indian Territory, i.e., the eastern half of

the State, is not reservation land. The Tenth Circuit

upended that understanding in one fell swoop, creating massive disruption. This Court’s review is urgently needed to restore stability and certainty regarding the State’s ability to govern its citizens.

A. The affected area is massive

Whether an Indian reservation exists raises “issues of importance pertaining to this country’s relationship to its Indian wards.” Seymour v. Superintendent of Wash. State Penitentiary, 368 U.S. 351, 353–

In his appeal, Mr. Murphy also argued that the crime occurred

on an Indian allotment. Because the Tenth Circuit held that the

crime occurred on an Indian reservation, the panel did not address Mr. Murphy’s allotment argument. App. 15a.

54 (1962). This Court thus routinely grants review to

address that question, even absent any apparent

DPOnJDUBNPOHUIFMPXFSDPVSUTE.g., id.; Parker, 136

S. Ct. 1072; Rosebud Sioux Tribe v. Kneip, 430 U.S.

584, 585 (1977); Mattz v. Arnett, 412 U.S. 481, 485

(1973).

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nentially here. The sheer size of the territory sets

this case apart from any prior disestablishment dispute in our country’s history. The 1866 boundaries of

the Creek Nation alone encompass over 4,600 square

miles of land populated by more than 750,000 people,

as shown below:

The 1866 boundaries also include most of Tulsa,

the State’s second largest city and home to more

than 403,000 Oklahomans. Census Bureau, QuickFacts: Tulsa city, Oklahoma (2016), https://goo.gl/

2jK19d. A reconstituted Creek territory would be by

far the largest Indian reservation by population in

the United States. For comparison, the largest reservation is currently the Navajo Nation, with a total

population of 174,000, only 4,300 of whom are nonnative. Census Bureau, The American Indian and

Alaska Native Population: 2010, at 14 & tbl.6 (2012),

https://goo.gl/Nw37yg.

Moreover, the decision below could extend to the

other tribes whose lands collectively constituted Indian Territory. “The history of the removal of the

Muskogee or Creek Nation from their original homes

to land purchased and set apart for them … in the

territory west of the Mississippi river does not differ

greatly from that of the others of the Five Civilized

Tribes.” Woodward, 238 U.S. at 293. The Five Tribes

confronted the same issues that culminated in the allotment of their lands, the dissolution of their governments, and the merger of all their former territory with Oklahoma Territory to form Oklahoma. Id. at

293–96. Thus, although details vary from tribe to

tribe, the Five Tribes share an overlapping statutory

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guishment of their territorial sovereignty during the

period leading up to Oklahoma statehood.

The land constituting the Five Tribes in the former Indian Territory covers nearly half the State in

terms of area and population:

The 1866 boundaries of the Five Tribes include

29,965 square miles, about 43% of Oklahoma’s land

mass. The current population of this region is over

1.8 million—roughly 48% of Oklahoma’s population.

See Census Bureau, Interactive Population Map,

https://goo.gl/YF8sb8.

B. The question presented implicates fundamental questions of sovereignty

Whether this vast expanse of land is now Indian

Country under 18 U.S.C. § 1151(a) strikes at the

heart of Oklahoma’s sovereignty.

1. The implications for criminal jurisdiction—the

context of this case—are staggering. States lack

criminal enforcement jurisdiction over offenses in

Indian Country if either the defendant or victim is

an Indian, regardless whether the Indian is an enrolled member of the tribe whose land is at issue. Solem, 465 U.S. at 463 n.2; Dep’t of Justice, Indian

Country Criminal Jurisdictional Chart (2017),

https://goo.gl/uXKgQT. The federal government has

exclusive criminal jurisdiction in such cases, aside

from certain minor offenses subject to tribal court jurisdiction when both defendant and victim are Indians. 18 U.S.C. §§ 1152–53; 25 U.S.C. § 1302(a)(7). For

over a century, Oklahoma has prosecuted offenses

committed by or against Indians on the understanding that no reservations exist in the former Indian

Territory. That will change overnight if this Court

does not grant review.

Approximately 9% of Tulsa residents self-identify

as Native American. That percentage is the highest

of any large city in the United States other than

Anchorage, Alaska. Census Bureau, American Indian, supra, at 12. Losing jurisdiction over crimes

committed by or against Native Americans throughout a large and populous part of the State would innJDUBOFOPSNPVTCMPXUPUIF4UBUFTQPXFSUPQSPTF

cute within its own borders. That result would impose a corresponding burden on federal authorities

and courts. In urging rehearing below, the United

States estimated that the Tenth Circuit’s decision

could require federal authorities to investigate and

prosecute hundreds (if not more than a thousand) of

new cases each year within the boundaries of the

Creek Nation alone—amounting to a tenfold increase

in the caseload in the Northern and Eastern

Districts of Oklahoma. U.S. Br. in Supp. of Reh’g, supra, at 2. These new responsibilities would overwhelm current federal resources in the region. Id.

(noting that the FBI has the equivalent of just seven

agents for all of eastern Oklahoma).

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by its terms relates only to federal criminal jurisdiction,” this Court has recognized “that it also generally applies to questions of civil jurisdiction.” Alaska v.

Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520, 527

(1998). Absent this Court’s review, the decision below

will open up a Pandora’s Box of questions regarding

the State’s regulatory power. For example, the State

has limited power to tax tribal members on reservations. See Okla. Tax Comm’n v. Sac & Fox Nation,

508 U.S. 114, 126 (1993). Reservation status also

calls into question the State’s ability to regulate nonIndians in areas ranging from taxation to natural resources. See White Mountain Apache Tribe v. Bracker,

448 U.S. 136, 142–43 (1980) (balancing test for State

regulatory jurisdiction over non-Indians on reservations). Likewise, regulatory jurisdiction under major

federal environmental statutes could shift from the

State to the U.S. Environmental Protection Agency,

absent EPA approval to delegate such responsibilities to the State. See Okla. Dep’t of Envtl. Quality v.

Envtl. Prot. Agency, 740 F.3d 185, 190–91, 194 (D.C.

Cir. 2014) (Clean Air Act).

Moreover, affected residents and businesses

would suddenly discover that their legal rights were

radically altered overnight because they now reside

on a reservation. Cf. Santa Clara Pueblo v. Martinez,

436 U.S. 49, 56 (1978). For instance, they would

potentially be subject to tribal regulatory jurisdiction

for matters ranging from taxation and tribal liquor

ordinances, e.g., Parker, 136 S. Ct. 1072; Rice v.

Rehner, 463 U.S. 713 (1983), to land-use, zoning, and

employment codes, see Montana v. United States, 450

U.S. 544, 565–66 (1981). Non-members could be subject to tribal-court jurisdiction in civil cases involving

tribal members and may have to exhaust jurisdictional challenges in tribal court before litigating in

federal court. Iowa Mut. Ins. Co. v. LaPlante, 480 U.S.

9, 16–19 (1987); Dolgencorp, Inc. v. Miss. Band of

Choctaw Indians, 746 F.3d 167, 171–77 (5th Cir.),

aff’d by an equally divided court sub nom. Dollar

Gen. Corp. v. Miss. Band of Choctaw Indians, 136 S.

Ct. 2159 (2016) (extent to which tribal courts have

jurisdiction to adjudicate tort claims against nonmembers).

Indeed, some federal statutes vest tribal courts

with exclusive jurisdiction over disputes arising within a reservation, despite the presence of non-Indian

parties. See, e.g., Indian Child Welfare Act of 1978,

Pub. L. No. 95-608, § 101(a), 92 Stat. 3069, 3071. And

while non-Indians will be subject to tribal jurisdiction, they have no role in shaping tribal laws that

could apply to them. Non-members may not vote in

tribal elections, and only Creek citizens with at least

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cogee (Creek) Nation Const. art. III, § 4; id. art. IV.

C. The decision below is creating enormous

disruption and uncertainty

1. The Tenth Circuit’s decision has already triggered a wave of litigation, including dozens of collateral challenges to existing convictions. To date, criminal defendants have invoked the decision, in at least

46 cases in both Oklahoma state and federal courts,

arguing that their crimes occurred on a reservation

and thus fall outside state jurisdiction. See, e.g.,

Wade v. Martin, No. WH-17-12 (Beckham Cty., Okla.)

(Choctaw member claiming two 1986 murders occurred on Creek reservation); Sims v. State, No. F-17635 (Okla. Crim. App.) (claiming victim was a member of Creek Nation); In re Brown, No. 17-7078 (10th

Cir.) (claiming victim may have been a member of

Cherokee Nation).

Although the State will resist any attempts to

overturn valid convictions, the Tenth Circuit’s decision raises the specter that hundreds or thousands of

state convictions involving tribal members in the

eastern half of Oklahoma will be subject to collateral

attack. If any convictions are vacated, federal prosecutors must decide whether to retry those cases,

many of which are decades old. Because older convictions typically include the most heinous crimes, violent criminals that the federal government is either

unwilling or unable to retry may be released into the

public. Inmates have even taken the unprecedented

step of suing Oklahoma in tribal court. For instance,

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murder has sought a declaratory judgment in tribal

court that the Cherokee reservation boundaries have

not been diminished and that his conviction was void

ab initio. Mitchell v. Hunter, No. CV-17-680 (Cherokee Nation Dist. Ct.). Although that challenge was

ultimately unsuccessful, such litigation will only

multiply absent this Court’s review.

2. This Court’s review also is urgently needed to

remove the jurisdictional cloud over current criminal

prosecutions—i.e. UIPTF UIBU IBWF ZFU UP CFDPNF m

nal—as well as over any crimes that occur in the

future. The decision below has inspired numerous defendants in ongoing state-court trials or directappeal proceedings to claim that either the defendant or the victim was a tribal member and that the

crime occurred on a reservation of the Five Tribes.

For example, a Choctaw tribe member under

indictment for murder in the drowning death of his

two-year-old daughter has cited the decision below,

claiming the crime occurred on the Choctaw

reservation and thus requesting transfer to federal

court. State v. Sizemore, CF-16-593 (Pittsburg Cty.,

Okla.). Many similar examples exist.4

Perhaps as a sign of things to come, days after

the Tenth Circuit issued its decision, one defendant—

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EBVHIUFST CPZGSJFOEPCUBJOFE JEFOUJmDBUJPO EPDV

ments from the Creek Nation, claiming to be 1/128th

Creek, and argued to the Oklahoma state court that

the crime occurred on the Creek reservation. See

State v. Kepler, CF-14-3952 (Tulsa Cty., Okla.); Samantha Vicent, Shannon Kepler cites Creek Nation

citizenship, ‘Indian Country’ ruling in asking for

See, e.g., State v. Martin, CF-16-782A (Carter Cty., Okla.)

(Choctaw member claiming manslaughter occurred on Chickasaw reservation); State v. Shriver, CF-15-395 (Rogers Cty.,

Okla.) (Cherokee defendant claiming crimes, including second

degree murder, occurred on Cherokee reservation); State v.

Mize, CF-17-3891 (Tulsa Cty., Okla.) (Indian defendant

claiming manslaughter occurred on Creek reservation).

murder case to be tossed, Tulsa World, Aug. 11, 2017,

https://goo.gl/F2zwSn. He was recently convicted and

TFOUFODFE UP ZFBST JO QSJTPO CVU IBT mMFE IJT OP

tice of appeal. The jurisdictional uncertainty clouding this and similar cases cries out for this Court’s

review.

3. The disruption also extends into the civil arena. The Cherokee Nation has cited the decision below to assert tribal-court jurisdiction over a dispute

involving pharmaceutical companies on the theory

that the borders of the Cherokee Nation were never

disestablished. Suppl. Mem., McKesson Corp. v.

Hembree, No. 17-cv-323 (N.D. Okla. Aug. 16, 2017);

id., 2018 WL 340042 (N.D. Okla. Jan. 9, 2018) (enjoining tribal-court proceedings). And the Comanche

Nation has sued the federal government in an attempt to undo the acquisition of land into trust for

the Chickasaw Nation, alleging, based on Murphy,

that the Chickasaw’s territorial borders were never

disestablished. Comanche Nation of Oklahoma v.

Zinke, No. 17-cv-887 (W.D. Okla.). Absent this Court’s

intervention, the decision below will impose intolerable and destabilizing uncertainty throughout half the

State.

II. The decision below is wrong

Oklahoma’s accession to statehood in 1907

marked the culmination of Congress’s elimination of

the boundaries of the Five Tribes’ territories. Congress did not retain, in the form of “Indian Country”

under Section 1151, a replica of the Indian Territory

that Congress spent the prior twenty years dismantling. The notion that the tribes had sovereignty that

could oust the State of jurisdiction over its citizens,

or that the federal government bore responsibility to

prosecute Indians living in former Indian Territory,

would have been anathema to the Congress that enabled Oklahoma to join the Union.

In reaching a contrary result as to the Creek Nation, the Tenth Circuit held that, under the threepart test set forth in Solem, 465 U.S. 463, Congress

never disestablished the tribe’s external borders.

App. 132a–133a. But Solem addressed individual

surplus land acts, and its application makes little

sense here. The creation of Oklahoma on equal footing with other States stripped the external boundaries of Oklahoma’s two constituent territories—as

well as the internal tribal boundaries in Indian TerSJUPSZPG BOZ KVSJTEJDUJPOBM TJHOJmDBODF JODMVEJOH

criminal jurisdiction.

Oklahoma was not required to prove disestablishment by pointing to talismanic statutory language or a magic date. The Five Tribes’ political existence was founded on treaty promises guaranteeing

independent, sovereign governments and the right to

occupy land patented to them in fee simple as long as

the tribes existed. To convert the Indian Territory to

a new State, Congress supplanted the Five Tribes’

communal land tenure, dismantled all material vestiges of tribal governments, and ensured that the

State would thereafter prosecute its citizens regardless of race. Nothing more was needed. By statehood,

tribal boundaries were a historical artifact.

A. Congress dismantled Indian Territory and

tribal boundaries to create Oklahoma

*OEJBO SFTFSWBUJPOT BSF EFmOFE CZ iUIF SJHIU PG

reservation Indians to make their own laws and be

ruled by them,” Williams v. Lee, 358 U.S. 217, 220

(1959), and by tribal “ability to exercise … sovereign

functions” within reservation borders, Ramah Navajo

Sch. Bd., Inc. v. Bureau of Revenue of N.M., 458 U.S.

832, 837 (1982). This case fails that standard by a

long shot. The Five Tribes had lost all indicia of territorial sovereignty by 1907. Congress had stripped the

tribal governments of their most basic executive, legislative, and judicial functions in order to bestow

those powers upon the new State.

Beginning in 1893, Congress engaged in an extensive and systematic legislative campaign to abolish tribal courts, eliminate tribal law, and dissolve

tribal government—all to pave the way for Oklahoma’s entry to the Union. Congress authorized the Interior Secretary to remove the principal chiefs of the

Five Tribes and to appoint their successors, prohibited tribal governments from congregating more than

30 days per year, and barred them from enacting legislation or entering into contracts involving their

funds or land without the President’s approval. Five

Tribes Act §§ 6, 28, 34 Stat. at 139, 148. Congress

abolished tribal taxes, § 11, 34 Stat. at 141, and

commandeered tribal schools until they could be replaced with state schools, § 10, 34 Stat. at 140. Congress took possession of tribal buildings and sold all

their furniture. § 15, 34 Stat. at 143. And the Dawes

Commission dramatically usurped one of the most

foundational attributes of tribal sovereignty—the

ability to determine tribal membership. Supra pp. 6–

11. Congress continued the tribal governments beyond 1906 because the Dawes Commission had yet to

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“winding up their affairs.” Allen, 171 F. at 921. In the

end, the tribes were left with no authority except “to

sign deeds.” S. Rep. No. 59-5013, pt. 1, at 886.

The court below brushed aside this 20-year history on the ground that tribal governance had no bearing on reservation status. App. 105a–107a. But

whether Congress intended the State to have “juris-

diction over the disputed areas” or, conversely,

whether Congress intended tribes to retain governmental authority over activities within that territory,

has always been essential to determining whether

tribal borders persist. Rosebud, 430 U.S. at 599 n.20.

Thus, in Solem UIJT $PVSU GPVOE TJHOJmDBOU UIBU B

surplus land act did not speak to the issue of “jurisdiction over the opened areas.” 465 U.S. at 478. By

contrast, congressional intent here is unmistakable:

Congress stripped the Five Tribes of any meaningful

vestige of sovereignty. By statehood, the land formerly occupied by the Creek Nation was not an Indian

reservation in any sense of that term.

B. Congress conferred judicial authority over

Indian Territory to Oklahoma

Congress systematically transferred to the State

general criminal jurisdiction over Indians in the former Indian Territory. Beginning in 1897, Congress

abolished tribal courts, made tribal law unenforceable, and established federal territorial courts to hear

criminal cases under Arkansas law regardless of the

defendant’s race. Supra p. 9; Act of Apr. 28, 1904, ch.

1824, § 2, 33 Stat. 573 (mandating that Arkansas law

“embrace all persons and estates in Indian Territory,

whether Indian, freedman, or otherwise”). The Oklahoma Enabling Act then transferred all pending federal-question and diversity cases to the newly created federal courts in Oklahoma. § 16, 34 Stat. at 276.

#VU TJHOJmDBOUMZ $POHSFTTUSBOTGFSSFEall other cases to the newly created state courts. §§ 17–20, 34

Stat. at 276–77. These statutory provisions render it

inconceivable that Congress dismantled Indian Territory but simultaneously created a jurisdictional “Indian Country” in its wake.

If any of the Five Tribes’ territories remained intact as a reservation, the jurisdictional transfer to

state courts would have clashed with the Major

Crimes Act, which conferred “exclusive jurisdiction”

to federal courts for any major crime committed in a

State by an Indian “within the limits of any Indian

reservation.” Ch. 341, § 9, 23 Stat. 362, 385 (1885)

DPEJmFEBTBNFOEFEBU64$f B #FDBVTF

the Enabling Act directed a different course, state

courts became the “legal successor” to the territorial

courts for offenses committed before statehood, even

by Indians. Haikey v. State, 105 P. 313, 314 (Okla.

Crim. App. 1909).

For instance, in Jones v. State, 107 P. 738 (Okla.

Crim. App. 1910), a federal grand jury indicted a

Choctaw tribal member for murder occurring before

statehood, but he “was tried after statehood by the

district court of Atoka county.” Id. at 738–39.5 And

another case involving a defendant, victim, and witnesses, “all being Indians,” transferred from territorial court to state court after statehood. Phillips v.

United States, 103 P. 861, 861 (Okla. Crim. App.

1909). Many similar cases exist.6 Likewise, the State

assumed jurisdiction over major crimes committed by

Mr. Jones identified himself as a Choctaw in his brief before

this Court. Mot. for Leave to File Pet. for Writ of Habeas Corpus at 4, In re Jonas Jones, 231 U.S. 743 (1913).

Sharp v. United States, 118 P. 675 (Okla. Crim. App. 1911);

Wilson v. United States, 111 P. 659 (Okla. Crim. App. 1910);

Bailey v. United States, 104 P. 917 (Okla. Crim. App. 1909);

Keys v. United States, 103 P. 874 (Okla. Crim. App. 1909); Price

v. United States, 101 P. 1036 (Okla. Crim. App. 1909). The Indian identity of defendants in these cases and in Haikey, supra,

appears on the Dawes rolls. See Oklahoma Historical Society,

Search the Final Dawes Rolls and Applications, http://www.

okhistory.org/research/dawes.

Indians in former Indian Territory immediately after

statehood. E.g., Rollen v. State, 125 P. 1087, 1088

(Okla. Crim. App. 1912) (defendant “was a Cherokee

citizen”); Bigfeather v. State, 123 P. 1026 (Okla. Crim.

App. 1912).

This Court, too, understood from the outset that

Oklahoma had jurisdiction over Indians in the former Indian Territory. In Hendrix v. United States,

219 U.S. 79 (1911), an Indian defendant indicted for

murder in Indian Territory had successfully moved to

transfer his case to a federal court in Texas, under a

special venue statute for fair trials. Relying on the

Enabling Act’s transfer of jurisdiction to state courts,

the defendant argued after statehood that the federal

court lacked jurisdiction to try him. Id. at 89. In rejecting that argument, the Court notably did not hold

that federal courts had exclusive jurisdiction under

UIF .BKPS $SJNFT "DU CVU SBUIFS UIBU UIF TQFDJmD

venue statute continued to apply to pending cases.

Id. at 90–91. The United States acknowledged that,

but for the temporal venue provision, Congress gave

the State jurisdiction over crimes involving Indians.

U.S. Br. at 12, Hendrix v. United States, No. 319 (U.S.

1910) (“[T]he enabling act … and the subsequent organization of the State withdrew [Indian Territory]

from the exclusive jurisdiction of the United

States.”).

The purported existence of reservations following

statehood also would have left an implausible jurisdictional gap given the abolition of Creek courts in

1898. After statehood, federal courts had jurisdiction

over major crimes committed by Indians against Indians on reservations. Ch. 341, § 9, 23 Stat. at 385. If,

on the Tenth Circuit’s theory, state courts possessed

no criminal jurisdiction over Indians in the former

Indian Territory, no court could have prosecuted In-

dians for committing such crimes as assault, bribery,

forgery, and rioting against other Indians within the

former Creek territory until Congress authorized the

reestablishment of tribal courts in Oklahoma in

1936. See Act of June 26, 1936, ch. 831, § 2, 49 Stat.

1967. Given Congress’s hyper-focus on rampant lawlessness in Indian Territory, supra p. 6, Congress

could not plausibly have created a jurisdictional gap

that would reintroduce the very misrule that Congress spent decades trying to eradicate.

C. Solem does not support the decision below

Notwithstanding this overwhelming evidence of

congressional intent, the panel below held that the

State could not prevail under the three-part framework set forth in Solem, 465 U.S. 463, because no

TJOHVMBS TUBUVUPSZ QSPWJTJPO DPOUBJOFE TVGmDJFOUMZ

clear language of land cession and because the contemporaneous and subsequent historical evidence of

disestablishment was “mixed.” App. 74a. That holding is wrong for two reasons. First, the panel erred at

the threshold in holding Solem was the sole lens

through which the court could ascertain congressional intent. Second, clear congressional intent is discernable even applying Solem.

1. This Court’s Solem cases involve whether land

designated by the federal government as Indian reservations within a pre-existing State retained reservation status when Congress opened the area for

non-Indian settlement of surplus lands remaining after allotment.7 In considering whether Congress al-

See, e.g., Parker, 136 S. Ct. 1072 (Omaha Indian Reservation

in Nebraska); Solem, 465 U.S. 463 (Cheyenne Reservation in

South Dakota); Mattz, 412 U.S. 481 (Klamath River/Hoopa Val-

tered the boundaries of a reservation by “special legislation in order to assure a particular reservation

was in fact opened to allotment,” Mattz, 412 U.S. at

496–97, this Court has held that land presumptively

retains reservation status “until Congress explicitly

indicates otherwise.” Solem, 465 U.S. at 470; see

United States v. Celestine, 215 U.S. 278, 285 (1909).

5IJT QSFTVNQUJPO SFnFDUT UIF OPUJPO UIBU BMMPUNFOU

and non-Indian settlement may be “completely consistent with continued reservation status” “in a manner which the Federal Government … regarded as

CFOFmDJBM UP UIF EFWFMPQNFOU PG JUT XBSETw Mattz,

412 U.S. at 497. Solem thus governs how to determine whether “any particular surplus land act” “formally sliced a certain parcel of land off one reservation.” Solem, 465 U.S. at 468, 472; see also South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998).

This case is markedly different. The General Allotment Act that spawned surplus land acts excluded

the Five Tribes. Ch. 119, § 8, 24 Stat. 388, 391 (1887).

The Five Tribes’ territories also were not “reservations” in the traditional sense, but rather lands held

by the tribe through patents in fee simple. See CenTVT 0GmDF Report on Indians Taxed and Not Taxed

298 (1894). This case does not involve a sale of surplus land to non-Indians. In short, Oklahoma prosecuted Mr. Murphy not because he committed a crime

on a parcel of land that Congress opened to nonIndian settlement, but because the exterior and internal boundaries of Indian Territory had evaporated

by the formation of Oklahoma.

Allotment of the Five Tribes’ lands was inextricably intertwined with Congress’s systematic and deley Reservation in California); Seymour, 368 U.S. 351 (Colville

Reservation in Washington).

liberate liquidation of the Five Tribes as territorial

sovereigns to pave the way for the merger of Indian

Territory and Oklahoma Territory to create a new

State. Solem’s framework was not designed to analyze this situation. At a minimum, the panel erred in

holding that the state court’s decision was contrary

to clearly established federal law under 28 U.S.C.

§ 2254(d). App. 44a.8

The court of appeals also erroneously faulted the

4UBUFGPSOPUJEFOUJGZJOHTQFDJmDMBOHVBHFJOBHJWFO

statute that extinguished the Creek boundaries with

words equivalent to “cede,” a “lump-sum payment,” or

restoration of the land to “public domain.” App. 76a.

Those terms would have been unnecessary or senseless under these unique circumstances. Congress

would not have “restored” to the “public domain”

lands that were not federal domain, but rather communally owned fee lands with tribal deeds. Congress

did not need to use the term “cede,” when it was not

seeking cession of lands but rather the dissolution of

communal ownership. Likewise, Congress would

never offer a “lump-sum payment” because the

Tribes’ lands were conveyed through allotment to

their own members rather than to the government.

As a jurisdictional matter, the result was identical.

By dissolving the Tribes’ communal title and distributing communal property through allotment while

also divesting the Tribes of governmental authority,

Congress eliminated territorial boundaries.

2. The Tenth Circuit’s application of Solem was

BMTPnBXFE5IFiUPVDITUPOFUPEFUFSNJOFXIFUIFSB

The State argued below that Solem was inapposite. Okla.

C.A. Br. 46–47, 91; see also App. 44a–45a (addressing State’s

arguments).

given statute diminished or retained reservation

boundaries is congressional purpose.” Yankton, 522

U.S. at 343. Solem’s factors are just a guide for discerning that intent. Hagen v. Utah, 510 U.S. 399, 411

(1994); Rosebud, 430 U.S. at 588 & n.4. A “traditional

approach to diminishment cases” requires an examination of “all the circumstances surrounding the

opening of a reservation.” Hagen, 510 U.S. at 412.

“Even in the absence of a clear expression of congressional purpose in the text of a surplus land Act, unequivocal evidence derived from the surrounding circumstances may support the conclusion that a reservation has been diminished.” Yankton, 522 U.S. at

351. Thus, this Court has insisted that related statutes be read together. Rosebud, 430 U.S. at 606 n.30;

accord Hagen, 510 U.S. at 415. In Rosebud, although

the legislation opening the reservation did not explicitly diminish the reservation, an earlier but unratimFE BHSFFNFOU IBE FTUBCMJTIFE BO iVONJTUBLBCMF

baseline purpose of disestablishment” that was “carried forth and enacted” in subsequent legislation. 430

U.S. at 591–92.

The panel below misapplied these principles in

parsing each statute seriatim and in isolation, thereCZ MPPLJOH GPS POF TQFDJmD TUBUVUF XJUI TQFDJmD UFS

minology. That exercise missed the forest for the

trees: Congress had spent the better part of two decades eviscerating tribal governments and destroying

communal land tenure to form Oklahoma. Congress

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“enter into negotiations with [the Five Tribes] for the

purpose of the extinguishment of the national or tribal title to any lands within that Territory … to enable

the ultimate creation of a State or States of the Union which shall embrace the lands within said India[n] Territory.” Act of Mar. 3, 1893, ch. 209, § 16, 27

Stat. 612, 645 (emphasis added). That extinguishment of title could be effected “either by cession of

the same or some part thereof to the United States,

or by the allotment and division of the same in severalty among the Indians of such nations or tribes.” Id.

(emphasis added). Congress viewed cession and allotment as equivalent means to the same end.

$POHSFTT SFBGmSNFE UIJT JOUFOU JO MBUFS TUBUVUFT

allotting the land of the Creek Nation and divesting

the tribe of each and every important feature of its

sovereignty. Supra pp. 6–11. Additionally, in contrast

to surplus land acts in which Congress directed the

5SFBTVSZUPSFUBJOQSPDFFETGPSUIFUSJCFTCFOFmU BM

lotment in the Five Tribes’ territories mandated the

division of all tribal land among tribal members as a

prelude to the dissolution of the tribal government.

E.g., Creek Allotment Agreement §§ 3, 9, 31 Stat. at

862, 864. Congress directed any remaining tribal

funds be distributed pro rata among the tribe’s

members. Supplemental Allotment Agreement, ch.

1323, § 14, 32 Stat. 500, 503 (1902); see also Five

Tribes Act § 17, 34 Stat. at 143.

The Solem cases also require careful consideration of subsequent history and demographics—a

“practical acknowledgement” of disestablishment—to

BWPJEVQTFUUJOHiUIFKVTUJmBCMFFYQFDUBUJPOTPGQFPQMF

living in the area.” Hagen, 510 U.S. at 421; accord

Rosebud, 430 U.S. at 604–05; see also Yankton, 522

U.S. at 356–57; DeCoteau v. District Cty. Ct., 420 U.S.

425, 449 (1975). A “longstanding assumption of jurisdiction by the State” is inconsistent with reservation

status. Rosebud, 430 U.S. at 604–05; see also Yankton,

522 U.S. at 357.

After statehood, Congress stripped away restrictions on alienation of most allotments, subjected

unrestricted allotments to state taxation regardless

whether the allotments were still owned by tribal

members, and applied state laws of succession and

disposition on the remaining restricted allotments.

Act of May 27, 1908, ch. 199, §§ 1, 4, 35 Stat. 312; see

also Act of Apr. 10, 1926, ch. 115, § 1, 44 Stat. 239;

Act of Aug. 4, 1947, ch. 458, § 1, 61 Stat. 731. MoreoWFS $POHSFTT SFRVJSFE UIF USJCFT PO QBJO PG mOF PS

imprisonment, to transfer possession of all tribal

QSPQFSUZ BOE GVOET BOE GPS BMM USJCBM PGmDFST BOE

representatives to surrender “all books, documents,

records or any other papers” to the Secretary of the

Interior. Act of May 27, 1908, ch. 199, § 13, 35 Stat.

312, 316.

These events extend beyond simple “de facto”

disestablishment. App. 230a–232a. For a century, Oklahoma has governed the former Indian Territory,

and no court until now has held that the State lacks

criminal jurisdiction over Indians across the entire

former Creek territory. Stripping Oklahoma of criminal jurisdiction over all Indians in this densely populated area, or even worse, in the entire eastern half

of the State, would render Oklahoma a fractured,

second-class State. Cf. Coyle v. Smith, 221 U.S. 559

(1911).

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

MIKE HUNTER

LISA S. BLATT

Attorney General of

Counsel of Record

Oklahoma

SALLY L. PEI

MITHUN MANSINGHANI

STEPHEN K. WIRTH

Solicitor General

ARNOLD & PORTER

JENNIFER CRABB

KAYE SCHOLER LLP

Asst. Attorney General 601 Mass. Ave., NW

MICHAEL K. VELCHIK

Washington, DC 20001

RANDALL YATES

(202) 942-5000

Asst. Solicitors General lisa.blatt@arnoldporter.com

OKLAHOMA OFFICE OF THE

R. REEVES ANDERSON

ATTORNEY GENERAL

313 NE Twenty-First St. ARNOLD & PORTER

Oklahoma City, OK 73105 KAYE SCHOLER LLP

370 Seventeenth Street

Suite 4400

Denver, CO 80202

Counsel for Petitioner

February 6, 2018

APPENDIX

APPENDIX A

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

————

No. 07-7068 & 15-7041

————

PATRICK DWAYNE MURPHY,

Petitioner-Appellant,

TERRY ROYAL, Warden, Oklahoma State Penitentiary,

Respondent-Appellee.

MUSCOGEE (CREEK) NATION; SEMINOLE

NATION OF OKLAHOMA; UNITED KEETOOWAH

BAND OF CHEROKEE INDIANS IN OKLAHOMA,

Amici Curiae.

————

Appeal From The United States District Court For

The Eastern District Of Oklahoma

(D.C. Nos. 6:03-CV-00443-RAW-KEW and

6:12-CV-00191-RAW-KEW)

————

Patti Palmer Ghezzi, Assistant Federal Public

Defender (Randy A. Bauman and Michael Lieberman,

Assistant Federal Public Defenders, with her on

the briefs), Office of the Federal Public Defender,

Oklahoma City, Oklahoma, appearing for Appellant.

Jennifer L. Crabb, Assistant Attorney General (E.

Scott Pruitt, Attorney General, and Jared B. Haines,

Assistant Attorney General, with her on the brief),

Office of the Attorney General for the State of

Oklahoma, Oklahoma City, Oklahoma, appearing for

Appellee.

David A. Giampetroni, Kanji & Katzen, PLLC, Ann

Arbor, Michigan (Kevin Dellinger, Attorney General,

and Lindsay Dowell, Assistant Attorney General,

Muscogee (Creek) Nation, Okmulgee, Oklahoma; D.

Michael McBride III, Attorney General, and Christina

Vaughn, Assistant Attorney General, Seminole Nation

of Oklahoma, Crowe & Dunlevy, Tulsa, Oklahoma;

and Philip H. Tinker and Riyaz A. Kanji, Kanji &

Katzen, Ann Arbor, Michigan, with him on the briefs),

appearing for amici Muscogee (Creek) Nation and

Seminole Nation of Oklahoma.

Klint A. Cowan, Fellers, Snider, Blankenship, Bailey

& Tippens, P.C., Oklahoma City, Oklahoma,

appearing for amicus United Keetoowah Band of

Cherokee Indians in Oklahoma.

————

Before TYMKOVICH, Chief Judge, MATHESON, and

PHILLIPS, Circuit Judges.

————

MATHESON, Circuit Judge.

————

TABLE OF CONTENTS

I. BACKGROUND

A. Factual History

B. Procedural History

1. Trial

2. Direct appeal

3. First Application for State Post-Conviction

Relief

4. Filing of First Application for Federal Habeas

Relief

5. Second Application for State Post-Conviction

Relief

a. Evidentiary hearing

b. Appeal to the OCCA

c. Atkins trial and appeal

6. Federal District Court Proceedings on First

Federal Habeas Application

7. First Appeal to the Tenth Circuit (No. 07-7068)

8. Second Application for Federal Habeas Relief

9. This Consolidated Appeal

II. LEGAL BACKGROUND

A. Standard of Review

1. The Parties’ Dispute

2. The AEDPA Standard

a. Overview

b. The “contrary to” clause

B. Indian Country Jurisdiction

1. Reservations

2. The Major Crimes Act

3. Indian Country

4. Reservation Disestablishment and Diminishment

a. Presumption against disestablishment and

diminishment

b. The policy of allotment

c. Solem factors

III. DISCUSSION

A. Clearly Established Federal Law

1. Solem—Clearly Established Law in 2005

2. The State’s Arguments

B. The OCCA Decision—Contrary to Clearly

Established Federal Law

1. The OCCA’s Merits Decision

2. The OCCA’s Decision Was Contrary to Solem

a. No citation to Solem

b. Failure to apply Solem

c. The State’s arguments

C. Exclusive Federal Jurisdiction

1. Additional Legal Background

a. Supreme Court authority

b. Tenth Circuit authority

2. Additional

Factual

Background—Creek

Nation History

a. Original homeland and forced relocation

b. Nineteenth century diminishment

c. 1867 Constitution and government

d. Early congressional regulation of modernday Oklahoma

e. The push for allotment

f. Allotment and aftermath

g. Creation of Oklahoma

h. Away from allotment

i. Public Law 280

j. A new Creek Constitution

k. Our decision in Indian Country, U.S.A.

3. Applying Solem

a. Step One: Statutory Text

i. The statutes

1) Act of March 3, 1893, ch. 209, 27 Stat.

612 (“1893 Act”)

2) Act of June 10, 1896, ch. 398, 29 Stat.

321 (“1896 Act”)

3) Act of June 7, 1897, ch. 3, 30 Stat. 62

(“1897 Act”)

4) “Curtis Act,” ch. 517, 30 Stat. 495

(June 28, 1898)

5) “Original Allotment Agreement,” ch.

676, 31 Stat. 861 (March 1, 1901)

a) Allotment

b) Town sites

c) Lands reserved for tribal purposes

d) Future governance

6) “Supplemental Allotment Agreement,”

ch. 1323, 32 Stat. 500 (June 30, 1902)

7) “Five Tribes Act,” ch. 1876, 34 Stat.

137, April 26, 1906

8) “Oklahoma Enabling Act,” ch. 3335, 34

Stat. 267 (June 16, 1906)

ii. Analysis

1) No hallmarks of disestablishment or

diminishment

2) Signs Congress continued to recognize

the Reservation

3) The State’s title and governance

arguments

a) Title

b) Governance

b. Step Two: Contemporary Historical

Evidence

i. The State’s evidence

1) 1892 Senate debate

2) 1894 Senate committee report

3) Other sources

ii. Mr. Murphy’s and the Creek Nation’s

evidence

1) 1894 Dawes Commission records

2) 1895 Dawes letter

3) 1900 Attorney General opinion

4) Post-allotment evidence

iii. Analysis

c. Step Three: Later History

i. Treatment of the area

1) Congress

2) Executive

3) Federal courts

4) Oklahoma

5) Creek Nation

ii. Demographics

iii. Step-three concluding comment

IV. CONCLUSION

————

Patrick Dwayne Murphy asserts he was tried in the

wrong court. He challenges the jurisdiction of the

Oklahoma state court in which he was convicted of

murder and sentenced to death. He contends he should

have been tried in federal court because he is an

Indian and the offense occurred in Indian country. We

agree and remand to the district court to issue a writ

of habeas corpus vacating his conviction and sentence.

The question of whether the state court had jurisdiction is straightforward but reaching an answer is not.

We must navigate the law of (1) federal habeas corpus

review of state court decisions, (2) Indian country

jurisdiction generally, (3) Indian reservations specifically, and (4) how a reservation can be disestablished

or diminished. Our discussion on each of these topics

reaches the following conclusions.

First, we assume that a federal habeas court must

give deference to a state court’s determination that

it had jurisdiction. Nonetheless, in this case, the

Oklahoma court applied a rule that was contrary to

clearly established Supreme Court law. We must

apply the correct law.

Second, when an Indian is charged with committing

a murder in Indian country, he or she must be tried

in federal court. Mr. Murphy is a member of the

Muscogee (Creek) Nation. Because the homicide charged

against him was committed in Indian country, the

Oklahoma state courts lacked jurisdiction to try him.

Third, Congress has defined Indian country broadly

to include three categories of areas: (a) Indian reservations, (b) dependent Indian communities, and (c) Indian

allotments. See 18 U.S.C. § 1151. The reservation

clause concerns us here. All land within the borders

of an Indian reservation—regardless of whether the

tribe, individual Indians, or non-Indians hold title to a

given tract of land—is Indian country unless Congress

has disestablished the reservation or diminished its

borders.

Fourth, only Congress may disestablish or diminish

an Indian reservation. Applying the Supreme Court’s

test to determine whether Congress has done so as to

the Creek Reservation, we conclude it has not.

Mr. Murphy and the State agree that the offense in

this case occurred within the Creek Reservation if

Congress has not disestablished it. We conclude the

Reservation remains intact and therefore the crime

was committed in Indian country. Mr. Murphy, a

Creek citizen, should have been charged and tried in

federal court.1

I. BACKGROUND

We begin with the facts of the crime as presented by

the Oklahoma Court of Criminal Appeals (“OCCA”).2

We then discuss the procedural journey Mr. Murphy’s

case has traveled.

A. Factual History

In August 1999, Mr. Murphy lived with Patsy

Jacobs. Murphy v. State, 47 P.3d 876, 879 (Okla. Crim.

App. 2002). Ms. Jacobs was previously in a relationship with the victim in this case, George Jacobs, and

had a child with him, George, Jr. Id. at 879–80. Mr.

Murphy had an argument with her about Mr. Jacobs

and said he was “going to get” Mr. Jacobs and his

family. Id. at 879.

On August 28, 1999, Mr. Jacobs spent the day drinking with his cousin, Mark Sumka. Id. Around 9:30

p.m., Mr. Sumka was driving to a bar in Henryetta,

Oklahoma, with Mr. Jacobs passed out in the back

seat. Id. Mr. Murphy was driving on the same road

in the opposite direction with two passengers—Billy

Long and Kevin King. Id. After the cars passed each

other, they stopped. Id. Mr. Murphy backed up and

told Mr. Sumka to turn off the car, but Mr. Sumka

drove off. Id.

Mr. Murphy raises eight issues in this appeal. Because we

resolve his first issue by concluding the state courts lacked jurisdiction over this case, we do not address his other seven issues.

See 28 U.S.C. § 2254(e)(1) (providing federal habeas court

must presume state court’s factual determinations are correct);

see also Al-Yousif v. Trani, 779 F.3d 1173, 1181 (10th Cir. 2015)

(“The presumption of correctness also applies to factual findings

made by a state court of review based on the trial record.”

(quotations omitted)).

Mr. Murphy and his passengers pursued and forced

Mr. Sumka off Vernon Road, which runs through an

area that is “remarkably rural [and] heavily treed . . .

without any sort of improvement . . . except perhaps a

rickety barbed wire fence.” Murphy v. State, 124 P.3d

1198, 1206 (Okla. Crim. App. 2005); see also 47 P.3d at

879.

Mr. Murphy exited the car and confronted Mr.

Sumka. 47 P.3d at 879. Mr. Long and Mr. King began

hitting Mr. Jacobs. Id. at 880. Mr. Murphy approached

Mr. Jacobs, trading places with Mr. Long, who went

over and hit Mr. Sumka. Id. at 880. Mr. Sumka briefly

ran off but came back about five minutes later. Id.

When he did, he saw Mr. Murphy throw a folding

knife into the woods, and he saw Mr. Jacobs lying in a

ditch along the road, barely breathing. Id. Mr. Murphy

and his companions threatened to kill Mr. Sumka and

his family if he said anything, and Mr. King struck Mr.

Sumka in the jaw. Id.

Following Mr. Murphy’s instructions, Mr. Sumka

left the scene with the other men. Id. During the car

ride away, they told Mr. Sumka they had cut Mr.

Jacobs’s throat and chest and had severed his genitals.

Id. The group later went to Mr. King’s home, where

Mr. Jacobs’s son, George, Jr., was staying, in an

apparent attempt to kill him. Id. Mr. King’s mother

intervened and “thwarted [their] plan.” Id. Mr. King

went inside, and the rest of the group left. Id.

A passerby found Mr. Jacobs in the ditch with his

face bloodied and slashes across his chest and stomach. Id. His genitals had been cut off and his throat

slit. Id. According to a state criminalist, Mr. Jacobs

had been dragged off the road after his genitals were

severed. Id. His neck and chest had been cut on the

side of the road, where he bled to death over the course

10a

of four to twelve minutes, though it may have taken

longer. Id.

After Mr. Murphy returned home and confessed

to Ms. Jacobs, he was arrested. Id. The State of

Oklahoma charged him with Mr. Jacobs’s murder and

sought the death penalty.

B. Procedural History

A jury convicted Mr. Murphy of murder in

Oklahoma state court and imposed the death penalty.

His appeal and post-conviction proceedings have since

moved through the Oklahoma and federal courts as

recounted below.

Although the overall history of Mr. Murphy’s case is

complex, the history of the jurisdictional claim we

resolve here can be succinctly summarized. After Mr.

Murphy’s conviction and death sentence were affirmed

on direct appeal, he applied for state post-conviction

relief in 2004, arguing the Oklahoma state courts had

lacked jurisdiction to try him. The OCCA ordered an

evidentiary hearing. Following the hearing, the state

district court concluded Oklahoma’s jurisdiction was

proper because the crime did not occur in Indian

country. The OCCA affirmed that conclusion in 2005.

Mr. Murphy then sought federal habeas relief, but

the federal district court denied relief in 2007. Mr.

Murphy now appeals.

In the interest of thoroughness, and because Mr.

Murphy’s case has until now proceeded in a disjointed

fashion, we provide a complete procedural history

below.

1. Trial

In 2000, a jury in McIntosh County, Oklahoma,

convicted Mr. Murphy of first degree murder under

Okla. Stat. tit. 21 § 701.7(A) (1999). In the penalty

11a

phase, the jury found aggravating circumstances supported the death penalty. Murphy, 47 P.3d at 879.

In accordance with the jury’s verdict, the trial court

imposed a death sentence. Id.

2. Direct appeal

Mr. Murphy raised a variety of trial issues in a

direct appeal to the OCCA. On May 22, 2002, the

OCCA affirmed his conviction. Id. at 888. The court

also performed a statutorily mandated sentencing

review in which the court considered the aggravating

circumstances in light of the mitigating evidence,

including Mr. Murphy’s “mild mental retardation,”

and concluded his death sentence was “factually

substantiated and appropriate.” Id. at 887–88.3

3. First Application for State Post-Conviction

Relief

On February 7, 2002, while his direct appeal was

pending in the OCCA, Mr. Murphy filed his first

application for state post-conviction relief. See Murphy

v. State, 54 P.3d 556, 560 (Okla. Crim. App. 2002). He

asked that his application be held in abeyance, id. at

566, until the Supreme Court decided its then-pending

case of Atkins v. Virginia, 536 U.S. 304 (2002), which

addressed whether the Eighth Amendment prohibits

the execution of “mentally retarded persons,” id. at 306.

On June 20, 2002, about a month after the OCCA

affirmed on direct appeal, the Supreme Court held in

Atkins that the Eighth Amendment “places a substantive restriction on the State’s power to take the life of

a mentally retarded offender.” Id. at 321 (quotations

On April 21, 2003, the U.S. Supreme Court denied Mr.

Murphy’s petition for a writ of certiorari. See Murphy v.

Oklahoma, 538 U.S. 985 (2003)

12a

omitted). Atkins “[left] to the States the task of developing appropriate ways to enforce the constitutional

restriction.” Id. at 317 (brackets and quotations

omitted).

On September 4, 2002, the OCCA denied relief on

all of the issues Mr. Murphy had raised in his first

application for state post-conviction relief except his

Atkins claim. 54 P.3d at 570. The OCCA used Mr.

Murphy’s case to adopt new, post-Atkins procedures to

shield “mentally retarded” persons from execution. See

id. at 567–69. These procedures, the OCCA explained,

would govern “until such time” as the Oklahoma legislature enacted an alternative framework. Id. at 568.

The OCCA remanded to the state district court “for an

evidentiary hearing on the sole issue of [Mr. Murphy’s]

claim of mental retardation in accordance with” the

OCCA’s newly announced procedures. Id. at 570.

On remand, the state district court concluded Mr.

Murphy “had not raised sufficient evidence to create

a fact question on the issue of mental retardation.”

Murphy v. State, 66 P.3d 456, 458 (Okla. Crim. App.

2003). On March 21, 2003, the OCCA ruled this conclusion was “not clearly erroneous” and affirmed Mr.

Murphy’s death sentence. Id. at 458, 461.

4. Filing of First Application for Federal Habeas

Relief

On March 5, 2004, Mr. Murphy filed a federal

habeas application under 28 U.S.C. § 2254 asserting

13 grounds for relief.

On August 30, 2004, the U.S. District Court for the

Eastern District of Oklahoma concluded Mr. Murphy’s

application contained some claims that had not been

exhausted in Oklahoma state court. The federal district court directed Mr. Murphy to drop his unexhausted claims.

13a

On September 10, 2004, Mr. Murphy did so by filing

an amended application containing eight claims, all

of which were exhausted. His amended application

remained pending in the federal district court while he

pursued additional relief in state court.4

5. Second Application for State Post-Conviction

Relief

On March 29, 2004—shortly after he filed his original federal habeas application—Mr. Murphy returned

to state court and filed a second application for postconviction relief to exhaust claims he had dropped

from his federal habeas application. His second application for state post-conviction relief alleged:

1. Oklahoma lacked jurisdiction because the

Major Crimes Act gives the federal government exclusive jurisdiction to prosecute murders committed by Indians in

Indian country.5

The same day he filed his amended application, Mr. Murphy

launched a short-lived appeal. He sought our review of the district court’s order denying his request to stay the federal proceedings while he pursued his unexhausted claims in state court.

Another panel of this court dismissed the appeal for lack of

jurisdiction. See Murphy v. Mullin, No. 04-7094 (10th Cir. Dec.

16, 2004).

In Oklahoma, “issues of subject matter jurisdiction are never

waived and can therefore be raised on a collateral appeal.”

Wallace v. State, 935 P.2d 366, 372 (Okla. Crim. App. 1997); see

also Triplet v. Franklin, 365 F. App’x 86, 95 (10th Cir. 2010)

(unpublished) (recognizing that, in Oklahoma, issues of subject

matter jurisdiction are not waivable and can be raised for the first

time in collateral proceedings); Wackerly v. State, 237 P.3d 795,

797 (Okla. Crim. App. 2010) (considering jurisdictional claim that

crime occurred on federal land raised in prisoner’s second application for post-conviction relief); Magnan v. State, 207 P.3d 397, 402

14a

2. The OCCA’s earlier denial of a jury trial

on the issue of his “mental retardation”

had violated his constitutional rights.

3. Oklahoma’s lethal injection protocol violated the Eighth Amendment.

See Murphy, 124 P.3d at 1200, 1208–09. The OCCA

ordered an evidentiary hearing on the jurisdictional

claim. Id. at 1199.6

a. Evidentiary hearing

The state district court held a one-day evidentiary

hearing. Id. at 1201. Mr. Murphy argued Oklahoma

lacked jurisdiction because the crime occurred in

Indian country and 18 U.S.C. § 1153 provides for

exclusive federal jurisdiction over murders committed

by Indians in Indian country.7 The parties agreed that

(Okla. Crim. App. 2009) (considering Indian country jurisdictional challenge and explaining subject matter jurisdiction may

be challenged at any time).

The OCCA ordered that the hearing answer the following six

questions:

(1) Where exactly did the crime occur?

(2) Who “owns” title to the property upon which the

crime occurred?

(3) If some or all of the crime occurred on an easement,

how does that factor into the ownership question?

(4) How much of the crime occurred, if any, on an

easement?

(5) Did the crime occur in “Indian County,” as defined

by 18 U.S.C. § 1151?

(6) Is jurisdiction over the crime exclusively federal?

124 P.3d at 1201 n.3 (paragraph breaks added).

“Any Indian who commits against the person or property

of another Indian or other person any of the following offenses,

namely, murder . . . within the Indian country, shall be subject to

the same law and penalties as all other persons committing any

15a

Mr. Murphy and Mr. Jacobs, both members of the

Muscogee (Creek) Nation, were Indians, but they disputed whether the crime occurred in Indian country, a

term defined in 18 U.S.C. § 1151:

[T]he term “Indian country” . . . means

(a) all land within the limits of any Indian

reservation under the jurisdiction of the

United States Government, notwithstanding

the issuance of any patent, and, including

rights-of-way

running

through

the

reservation,

(b) all dependent Indian communities within

the borders of the United States whether

within the original or subsequently acquired

territory thereof, and whether within or

without the limits of a state, and

which have not been extinguished, including

rights-of-way running through the same.

18 U.S.C. § 1151 (paragraph breaks added). An area

qualifies as Indian country if it fits within any of these

three categories. Mr. Murphy argued the crime

occurred in Indian country under all three categories.8

In December 2004, the state district court concluded

state jurisdiction was proper because the crime had

occurred on state land. See 124 P.3d at 1200, 1202. The

court, however, addressed only one of Mr. Murphy’s

three theories. Id. at 1207. It concluded the land was

of the above offenses, within the exclusive jurisdiction of the

United States.” 18 U.S.C. § 1153(a).

In this appeal, however, he argues the location of the crime

qualifies under the reservation clause of subsection (a) and the

allotment clause of subsection (c). Because we agree with him

that the crime occurred on an Indian reservation, we do not reach

his allotment argument.

16a

not an Indian allotment under § 1151(c), but it failed

to address whether the location was (a) part of the

Creek Reservation or (b) part of a dependent Indian

community. See id. (noting the state district court

failed to address these questions although the OCCA

had “clearly asked” it to do so). Although the state

district court viewed these matters as outside the

scope of the evidentiary hearing, it allowed Mr.

Murphy to make an offer of proof on his other two

theories. Id. 9 The court ultimately ruled the State’s

exercise of criminal jurisdiction was proper and denied

relief. Id. at 1202.

b. Appeal to the OCCA

Mr. Murphy appealed to the OCCA. On December 7,

2005, the OCCA denied relief on his jurisdictional and

Eighth Amendment claims but granted limited relief

on the Atkins claim. See id. at 1209.

On the jurisdictional issue, the OCCA found the

record did not support some of the state district court’s

determinations, but it affirmed the ultimate determination that Oklahoma’s jurisdiction was proper.

On the reservation question that concerns us here, Mr.

Murphy argued:

[T]he homicide occurred within the boundaries of

the Creek Nation, which qualifies as Indian county

because of its status as a reservation under federal

jurisdiction. Unlike some other tribes, the Creek treaty

lands were not disestablished or diminished by the acts

of allotment and other federal legislation adopted in

the early 20th century. As of 1999, the entirety of the

historic Creek Nation lands thus remained Indian

country, regardless of non-Indian ownership of particular tracts within those boundaries.

Def. Tr. Br. at 12 (filed Nov. 16, 2004), State Post-Conviction

Record, OCCA Case No. PCD-2004-321, Vol. 1 at 66 (citing Solem

v. Bartlett, 465 U.S. 463 (1984)).

17a

Id. at 1201–08. The OCCA accepted the state district

court’s findings regarding where the crime unfolded,

but it rejected the court’s conclusion that Oklahoma

owned the road and the ditch abutting it. Id. at 1202.

Rather, the OCCA concluded, Oklahoma’s “interest in

the area in question is in the nature of an easement or

right-of way.” Id. The Creek Nation had long owned

the land in question when, under a statute enacted in

1902, Oklahoma received the right to build a public

highway. Id. at 1203. Tracing the history of the specific

tract where the crime occurred, the OCCA concluded

it had passed in the early twentieth century from the

Creek Nation to Lizzie Smith, a member of the Creek

Nation, and that all interest in the land—except for

a restricted 1/12 mineral interest—had since been

conveyed to non-Indians. See id. at 1204–06. The

OCCA concluded this Indian interest was insufficient

to qualify the land as an Indian allotment under

§ 1151(c): “A fractional interest in an unobservable

mineral interest is insufficient contact with the situs

in question to deprive the State of Oklahoma of criminal jurisdiction.” Id. at 1206.10

The OCCA criticized the state district court for not

addressing whether the crime was committed within

the Creek Reservation or within a dependent Indian

community, but it concluded the error was harmless

because Mr. Murphy had been afforded a chance “to

make an extended offer of proof.” Id. at 1207. The

OCCA said that the evidence, had it been admitted,

was “insufficient” to show “that the tract in question

We discuss the OCCA’s decision regarding Mr. Murphy’s

allotment theory under § 1151(c) because it forms part of the

procedural history of this case, but we offer no comment on the

merits of the OCCA’s decision on this front. Our opinion is limited

to the reservation question under § 1151(a).

18a

qualifies as a reservation or dependent Indian community.” Id.

With respect to the reservation theory, the OCCA

acknowledged our decision in Indian Country, U.S.A.,

Inc. v. Oklahoma ex rel. Oklahoma Tax Commission,

829 F.2d 967 (10th Cir. 1987), cert. denied, 487 U.S.

1218 (1988), where we recognized the Creek Reservation still exists but reserved the question whether its

1866 boundaries remain intact, 829 F.2d at 975–76.

See 124 P.3d at 1207–08 (discussing Indian Country,

U.S.A.). The OCCA stated: “If the federal courts

remain undecided on this particular issue, we refuse

to step in and make such a finding here.” Id. at 1208.11

As for the two non-jurisdictional issues Mr. Murphy

raised in his second post-conviction application, the

OCCA granted limited relief on one and denied relief

on the other. First, it reversed course on the Atkins

issue and found Mr. Murphy had provided sufficient

evidence to create a factual question for a jury on his

“mental retardation claim.” Id. It therefore ordered

the case remanded. Id. Second, the OCCA ruled Mr.

Murphy had waived his Eighth Amendment challenge

to Oklahoma’s lethal injection protocol by failing to

raise it earlier. Id. at 1209.

In summary, the OCCA rejected the jurisdictional

challenge and the Eighth Amendment claim, but it

remanded for a jury trial on Mr. Murphy’s Atkins

claim.12

The OCCA also rejected the dependent Indian community

theory under § 1151(b). See 124 P.3d at 1208. That ruling is not

before us because Mr. Murphy now raises only the allotment and

reservation theories.

Mr. Murphy petitioned the U.S. Supreme Court for certiorari

on two aspects of the OCCA’s jurisdictional decision: (1) whether

Oklahoma lacked jurisdiction because the crime occurred on

a restricted Indian allotment under § 1151(c) and (2) whether

19a

c. Atkins trial and appeal

Following a September 2009 trial in the state district court, a jury in McIntosh County rejected Mr.

Murphy’s claim of “mental retardation.” Murphy v.

State, 281 P.3d 1283, 1287 (Okla. Crim. App. 2012)

(discussing jury trial). But the trial judge declared a

mistrial based on an error of state law and reset the

case for a new trial. Id.13

Before the re-trial, the State moved to terminate

further proceedings. A state statute had supplanted

the OCCA’s Atkins procedures and provided that no

defendant who received an intelligence quotient (“I.Q.”)

score of 76 or above could “be considered mentally

retarded.” Okla. Stat. tit. 21 § 701.10b(C); see also 281

P.3d at 1287–89. Because Mr. Murphy had received an

I.Q. score of 80 on one test and 82 on another, the trial

court granted the State’s motion and terminated proceedings on January 27, 2011. 281 P.3d at 1288.

Mr. Murphy appealed and raised four propositions

of error to the OCCA. Id. at 1287. On April 5, 2012, the

OCCA ruled the district court had properly relied on

the new state law. Id. at 1289. The OCCA rejected all

Oklahoma lacked jurisdiction because the crime occurred within

the limits of an Indian reservation under § 1151(a). The Supreme

Court called for the views of the United States, and the Solicitor

General filed a brief arguing the Court should deny Mr. Murphy’s

petition because the OCCA had correctly determined that the

crime was not within the exclusive jurisdiction of the federal

government. See Brief for the United States as Amicus Curiae,

Murphy v. Oklahoma, No. 05-10787, 2007 WL 1319320, at *4. The

Supreme Court denied Mr. Murphy’s petition for certiorari

without comment. Murphy v. Oklahoma, 551 U.S. 1102 (2007).

The court declared a mistrial because neither side had

been afforded its full complement of peremptory challenges—a

structural error under Oklahoma law at the time. See 281 P.3d at

1287 & n.1.

20a

of Mr. Murphy’s claims, thus concluding proceedings

on the second post-conviction application. Id. at 1294.

6. Federal District Court Proceedings on First

Federal Habeas Application

On December 28, 2005, after the OCCA rejected

his jurisdictional and Eighth Amendment claims but

before the conclusion of the Atkins proceedings, Mr.

Murphy moved to amend his federal habeas application. The district court granted the motion and allowed

Mr. Murphy to add two newly exhausted claims:

(1) the challenge to Oklahoma’s jurisdiction, and

(2) the Eighth Amendment lethal-injection challenge.

These two claims were added to Mr. Murphy’s eight

previously exhausted federal claims, which were still

pending.

On August 1, 2007, the district court entered an

opinion and order denying all ten claims in Mr.

Murphy’s habeas application. Murphy v. Sirmons, 497

F. Supp. 2d 1257, 1294–95 (E.D. Okla. 2007).

On the jurisdictional claim, Mr. Murphy argued the

crime had occurred in Indian country under just two

theories: (1) the land was part of the Creek Reservation under § 1151(a) and (2) the land was an Indian

allotment under § 1151(c). Id. at 1288. Applying

the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), 28 U.S.C. § 2254(d), the district court

ruled that the OCCA’s decisions against Mr. Murphy

on these theories were neither contrary to nor an

unreasonable application of clearly established federal

law. See 497 F. Supp. 2d at 1286–92.

The district court rejected Mr. Murphy’s other claims

but granted him three certificates of appealability

(“COAs”)14 to challenge his counsel’s effectiveness, one

“[A] prisoner who was denied habeas relief in the district

court must first seek and obtain a COA from a circuit justice or

21a

of the death-eligibility aggravating circumstances,

and the trial court’s failure to define life without

parole for the jury.

7. First Appeal to the Tenth Circuit (No. 07-7068)

Mr. Murphy appealed to this court. On November

16, 2007, we abated the appeal to await resolution of

Mr. Murphy’s then-pending Atkins claim in Oklahoma

state court.

8. Second Application for Federal Habeas Relief

On April 26, 2012, following the OCCA’s final denial

of his Atkins claim, Mr. Murphy filed a second § 2254

application in the Eastern District of Oklahoma that

challenged the OCCA’s resolution of the Atkins issue.15

The district court denied relief. Murphy v. Trammell,

No. CIV-12-191-RAW-KEW, 2015 WL 2094548, at *13

(E.D. Okla. May 5, 2015) (unpublished).

9. This Consolidated Appeal

Mr. Murphy sought to appeal from the district

court’s denial of relief on his second § 2254 habeas

application. We consolidated that appeal (No. 15-7041)

with his appeal from the denial of his first habeas

application (No. 07-7068) to form this case.

Mr. Murphy raises eight issues. Because he obtained

COAs for each one,16 our jurisdiction is proper under

28 U.S.C. § 2253(a), (c)(1)(A).

judge” before an appeal can be heard. Miller-El v. Cockrell, 537

U.S. 322, 335–36 (2003); see 28 U.S.C. § 2253(c).

The district court treated the application as second and

successive and transferred it to this court. We concluded that at

least a portion of Mr. Murphy’s Atkins challenge could proceed

and ordered a partial remand. In re Murphy, No. 12-7055, at 2

(10th Cir. Nov. 1, 2012) (unpublished order).

The district court granted Mr. Murphy three COAs and we

granted five more. The district court granted COAs for Mr.

Murphy’s arguments regarding: (1) ineffective assistance of

22a

As to one of the issues—whether Oklahoma or the

federal government had jurisdiction over the murder

case—we granted the motion of the Muscogee (Creek)

Nation and the Seminole Nation of Oklahoma to file a

joint amici brief.17 We likewise permitted the United

Keetoowah Band of Cherokee Indians in Oklahoma to

file an amicus brief. The Tribes also participated at

oral argument.

II. LEGAL BACKGROUND

We conclude the crime occurred on the Creek Reservation and therefore the Oklahoma courts lacked

jurisdiction. This section addresses the law applicable

to the jurisdictional issue. We begin with (A) our

standard of review and then address (B) the substantive law of Indian country jurisdiction.

A. Standard of Review

The parties disagree over the standard of review

that should apply to Mr. Murphy’s jurisdictional claim.

The State contends AEDPA’s deferential standard

should apply. Mr. Murphy disagrees and argues we

counsel, (2) the “heinous, atrocious, or cruel” aggravating circumstance, and (3) the trial court’s failure to define “life without

parole” for the jury. In June 2015, we ordered Mr. Murphy to file

a motion for additional COAs across both appeals. We granted

COAs for his claims regarding: (1) victim-impact statements,

(2) Oklahoma’s jurisdiction, (3) the district court’s refusal to stay

and abate proceedings on his first federal habeas application,

(4) Oklahoma’s procedural handling of his Atkins claim, and

(5) cumulative error. Murphy v. Warrior, Nos. 07-7068 & 15-7041,

at 1–2 (10th Cir. Jan. 6, 2016) (unpublished order). All eight

issues are properly before us in this appeal, but our resolution of

the jurisdictional claim obviates the need to address the other

seven issues.

Because this case concerns the Creek Reservation, we refer

to the Tribes’ joint brief with the shorthand “Creek Nation Br.”

23a

should review his claim de novo. We begin by discussing this disagreement, but we choose not to resolve

it because Mr. Murphy prevails even under AEDPA

review. Because we assume the AEDPA standard

applies, we then go on to describe it.

1. The Parties’ Dispute

As we discuss in greater detail below, AEDPA generally requires federal habeas courts to defer to state

court decisions. Mr. Murphy argues AEDPA does not

apply when, as here, a state court denies a defendant’s

challenge to the state court’s subject matter jurisdiction. AEDPA deference, he maintains, “presupposes”

the state court had jurisdiction to decide a given claim

in the first place. Aplt. Br. at 26. Because the question

of Indian country jurisdiction implicates tribal and

federal sovereignty interests, he also contends that

federal courts, unconstrained by AEDPA, must make

the final determination over the jurisdictional issue.

And he argues that applying AEDPA to jurisdictional

claims would pose separation-of-powers and other constitutional problems.

The State responds that nothing in AEDPA says

subject matter jurisdiction claims should be reviewed

de novo. It notes Mr. Murphy has failed to cite a case

in support of his view that AEDPA does not apply to

jurisdictional questions. It argues Mr. Murphy has

waived any argument against AEDPA’s application

because he supported the district court’s application of

AEDPA below. The State also disputes his constitutional arguments.

We need not decide whether this issue is waivable,

whether Mr. Murphy has waived it here, or even

whether AEDPA is the appropriate standard. We

choose to assume without deciding that AEDPA

applies.

24a

We took this approach in Magnan v. Trammell, 719

F.3d 1159 (10th Cir. 2013). Both sides agree Magnan

left open the question of whether AEDPA applies

to Indian country jurisdictional claims. Magnan concerned an Indian defendant whom an Oklahoma state

court had sentenced to death. Id. at 1160–61. The

defendant challenged the state court’s jurisdiction. Id.

at 1163. We assumed without deciding that AEDPA

applied and concluded that, even under AEDPA’s deferential standard, the OCCA had erred in concluding

Oklahoma had jurisdiction over the case. Id. at 1160–

61, 1164.18 We held the crime occurred in Indian country, making jurisdiction exclusively federal. We ordered

Mr. Magnan released from state custody without

resolving the “difficult question” of whether AEDPA

constrains federal court review of a state court’s jurisdictional ruling regarding Indian country. Id. at 1164,

1176–77. 19 As in Magnan, we can assume without

deciding that AEDPA applies because Mr. Murphy is

entitled to relief even under that formidable standard

of review.

2. The AEDPA Standard

We first discuss AEDPA’s general framework and

then focus on the statute’s “contrary to” clause because

that provision guides our analysis.

See also Yellowbear v. Att’y Gen. of Wyo., 380 F. App’x 740,

743 (10th Cir. 2010) (unpublished) (leaving open the question of

whether AEDPA applies and concluding on federal habeas review

of state murder case that Wyoming Supreme Court’s ruling on

Indian reservation issue in favor of state jurisdiction should be

affirmed regardless of whether de novo or AEDPA standard

applied).

Mr. Magnan was later convicted in federal court of three

counts of murder in Indian country. We affirmed his convictions.

See United States v. Magnan, __ F.3d __, No. 16-7043, 2017 WL

3082157, at *1, *4 (10th Cir. July 20, 2017).

25a

a. Overview

“AEDPA erects a formidable barrier to federal

habeas relief for prisoners whose claims have been

adjudicated in state court.” Burt v. Titlow, 134 S. Ct.

10, 16 (2013). When a state court adjudicates a claim

on the merits, AEDPA prohibits federal courts from

granting habeas relief unless the state court’s adjudication of the claim:

(1) resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of

the United States; or

(2) resulted in a decision that was based

on an unreasonable determination of the

facts in light of the evidence presented in

the State court proceeding.

28 U.S.C. § 2254(d)(1)–(2). “If this standard is difficult

to meet, that is because it was meant to be.”

Harrington v. Richter, 562 U.S. 86, 102 (2011).20

Section 2254(d) provides three ways to overcome

AEDPA deference. Two appear in § 2254(d)(1), which

provides that a state prisoner can qualify for habeas

relief by showing a state court decision was (1) “contrary to” or (2) “involved an unreasonable application

of” federal law that was clearly established by the

Supreme Court. 28 U.S.C. § 2254(d)(1); see Bell v.

Cone, 535 U.S. 685, 694 (2002) (explaining the “contrary to” and “unreasonable application” clauses each

AEDPA concerns federal court deference to the decisions of

state courts. Our review of the federal district court’s application

of AEDPA is de novo. See Frost v. Pryor, 749 F.3d 1212, 1223

(10th Cir. 2014) (“[W]e review the district court’s legal analysis of

the state court decision de novo and its factual findings, if any,

for clear error.” (quotations omitted)).

26a

carry “independent meaning”). The third way, in

§ 2254(d)(2), requires a state prisoner to show that a

state court decision was based on an unreasonable

factual determination. See 28 U.S.C. § 2254(d)(2).

Thus, “[e]ach of AEDPA’s three prongs—contrary to

clearly established federal law, unreasonable application of clearly established federal law, and unreasonable determination of the facts—presents an independent inquiry.” Budder v. Addison, 851 F.3d 1047,

1051 (10th Cir. 2017).

Mr. Murphy makes arguments based on all three,

but because we need apply only § 2254(d)(1)’s “contrary to” provision to resolve this case, we restrict our

discussion to that clause.

b. The “contrary to” clause

When a state court adjudicates a prisoner’s federal

claim on the merits, review under § 2254(d)(1)’s “contrary to” clause proceeds in three steps.

First, we must decide whether there is clearly established federal law that applies to the claim. See House

v. Hatch, 527 F.3d 1010, 1015 (10th Cir. 2008) (“Whether

the law is clearly established is the threshold question

under § 2254(d)(1).”). In discerning what law is “clearly

established,” we must look only to the decisions of the

Supreme Court, see Parker v. Matthews, 567 U.S. 37,

48–49 (2012) (per curiam) (explaining circuit precedent

“cannot form the basis for habeas relief under AEDPA”),

and we must “measure state-court decisions against

[the Supreme] Court’s precedents as of the time

the state court renders its decision,” Greene v. Fisher,

565 U.S. 34, 38 (2011) (emphasis and quotations

27a

omitted). Within this set of cases, “‘clearly established Federal law’ for purposes of § 2254(d)(1) includes

only the holdings, as opposed to the dicta, of [the

Supreme] Court’s decisions.” White v. Woodall, 134

S. Ct. 1697, 1702 (2014) (brackets and quotations

omitted).

Second, if we can identify clearly established law, we

then must assess whether the state court’s decision

was “contrary to” that law. See 28 U.S.C. § 2254(d)(1);

see also House, 527 F.3d at 1018. “The word ‘contrary’

is commonly understood to mean ‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually

opposed.’” Williams v. Taylor, 529 U.S. 362, 405 (2000)

(controlling opinion of O’Connor, J.) (quoting Webster’s

Third New International Dictionary 495 (1976)). A

state court decision violates the “contrary to” clause if

it “applies a rule that contradicts the governing law set

forth in [the Supreme Court’s] cases.” Id. If the state

court identifies and applies “the correct legal rule,” its

decision will not be “contrary to” federal law, but the

state court’s application of the correct rule can still be

evaluated under § 2254(d)(1)’s “unreasonable application” clause. Id. at 406.

Third, if the state court rendered a decision that was

“contrary to” clearly established Supreme Court precedent by applying the wrong legal test, we do not necessarily grant relief; rather, we review the claim applying the correct law. Put differently, “it is . . . a

necessary prerequisite to federal habeas relief that a

prisoner satisfy the AEDPA standard of review,” but

habeas relief does not “automatically issue if a prisoner satisfies the AEDPA standard.” Horn v. Banks,

536 U.S. 266, 272 (2002). By showing the state court

Similarly, “review under § 2254(d)(1) is limited to the record

that was before the state court that adjudicated the claim on the

merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

28a

decision was “contrary to” clearly established federal

law, the prisoner surmounts AEDPA, and the federal

habeas court “must then resolve the claim without

the deference AEDPA otherwise requires.” Panetti

v. Quarterman, 551 U.S. 930, 953 (2007); see also

Williams, 529 U.S. at 406 (explaining that if “the

state-court decision falls within” the “contrary to”

clause, “a federal court will be unconstrained by

§ 2254(d)(1)”); Milton v. Miller, 744 F.3d 660, 670–71

(10th Cir. 2014) (concluding OCCA’s decision was

“contrary to” clearly established federal standard and

reviewing claim de novo).

As previously mentioned, we choose to assume that

AEDPA supplies our standard of review and now

turn to the substantive law governing Indian country

jurisdiction.

B. Indian Country Jurisdiction

Understanding the Indian country jurisdiction issue

in this case requires background knowledge about

(1) reservations, (2) the Major Crimes Act, (3) the

meaning of “Indian country,” and (4) how a reservation

can be disestablished or diminished. We address these

topics below.

1. Reservations

The federal government began creating Indian reservations during the nineteenth century. See Felix S.

Cohen’s Handbook of Federal Indian Law 60 (Nell

Jessup Newton ed., 2012) [hereinafter “Cohen”]. “During the 1850s, the modern meaning of Indian reservation emerged, referring to land set aside under federal

protection for the residence or use of tribal Indians,

regardless of origin.” Id. at 190 91. “[T]he term [‘Indian

reservation’] has come to describe federally-protected

Indian tribal lands, meaning those lands which Congress has set apart for tribal and federal jurisdiction.”

29a

Indian Country, U.S.A., 829 F.2d at 973 (citation and

quotations omitted). As we explain further below, the

term “Indian country” includes not only reservations

but other lands as well.

2. The Major Crimes Act

The Major Crimes Act is the jurisdictional statute at

the heart of this case. It applies to enumerated crimes

committed by Indians in “Indian country.” When the

Major Crimes Act applies, jurisdiction is exclusively

federal. See Negonsott v. Samuels, 507 U.S. 99, 103

(1993) (“[F]ederal jurisdiction over the offenses covered by the Indian Major Crimes Act is exclusive

of state jurisdiction.” (quotations omitted)); United

States v. Sands, 968 F.2d 1058, 1062 (10th Cir. 1992)

(“The State of Oklahoma does not have jurisdiction

over a criminal offense committed by one Creek Indian

against another in Indian country.”); Cravatt v. State,

825 P.2d 277, 279 (Okla. Crim. App. 1992) (“[Q]uite

simply the State of Oklahoma does not have jurisdiction over crimes committed by or against an Indian in

Indian Country.” (quotations omitted)). “The policy of

leaving Indians free from state jurisdiction and control

is deeply rooted in the Nation’s history.” Rice v. Olson,

324 U.S. 786, 789 (1945) (citing Worcester v. Georgia,

31 U.S. (6 Pet.) 515 (1832)).

The current version of the Major Crimes Act provides in relevant part:

Any Indian who commits against the person

or property of another Indian or other person

any of the following offenses, namely, murder

. . . within the Indian country, shall be subject

to the same law and penalties as all other

persons committing any of the above offenses,

within the exclusive jurisdiction of the United

States.

30a

18 U.S.C. § 1153(a). If the Major Crimes Act applies to

an Indian defendant, he or she “shall be tried in the

same courts and in the same manner as are all other

persons committing such offense within the exclusive

jurisdiction of the United States.” 18 U.S.C. § 3242.

The parties agree that Mr. Murphy and Mr. Jacobs,

both members of the Creek Nation, qualify as Indians

for purposes of the Major Crimes Act. See 124 P.3d at

1200; see also Aplt. Br. at 20; Aplee. Br. at 11. 22

Murder is among the Act’s enumerated offenses. See

18 U.S.C. § 1153(a). The dispute centers on whether

the crime occurred in Indian country, in particular on

the Creek Reservation. Before we discuss the meaning

of Indian country, we provide the following history of

the Major Crimes Act because it aids our analysis.

In Ex parte Crow Dog, 109 U.S. 556 (1883), the

Supreme Court held that federal and territorial courts

lacked jurisdiction to try an Indian for the murder of

another Indian committed in Indian country. Id. at

572. In response, Congress passed the Major Crimes

Act in 1885. See Act of Mar. 3, 1885, ch. 341, § 9, 23

Stat. 362, 385; Keeble v. United States, 412 U.S. 205,

209–10 (1973) (discussing Ex parte Crow Dog and

legislative response). As originally enacted, the Major

Crimes Act provided:

[A]ll Indians, committing against the person

or property of another Indian or other person

any of the following crimes, namely, murder

. . . within any Territory of the United States,

and either within or without an Indian

reservation, shall be subject therefor to the

laws of such Territory relating to said crimes

Whether the Major Crimes Act applies does not depend on

whether the victim is an Indian. See 18 U.S.C. § 1153(a) (reaching

crimes against an Indian “or other person”).

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. . . ; and all such Indians committing any

of the above crimes against the person or

property of another Indian or other person

within the boundaries of any State of the

United States, and within the limits of any

Indian reservation, shall be subject to the

same laws, tried in the same courts and in

the same manner, and subject to the same

penalties as are all other persons committing

any of the above crimes within the exclusive

jurisdiction of the United States.

§ 9, 23 Stat. at 385. Thus, unlike the current law,

which applies in “Indian country,” the original Act

applied to crimes committed in federal territories and

“within the boundaries of any State of the United

States, and within the limits of any Indian reservation.” Id. (emphasis added); see also United States v.

Kagama, 118 U.S. 375, 377–78, 383–85 (1886) (discussing original Act and upholding its constitutionality).

In cases decided in the late nineteenth and early

twentieth centuries, the Supreme Court explained

that the Major Crimes Act applied to crimes committed within the boundaries of Indian reservations

regardless of the ownership of the particular land on

which the crimes were committed. See United States v.

Celestine, 215 U.S. 278, 284–87 (1909); United States

v. Thomas, 151 U.S. 577, 585–86 (1894). The Court

explained in Celestine that reservation status depends

on the boundaries Congress draws, not on who owns

the land inside the reservation’s boundaries: “[W]hen

Congress has once established a reservation, all tracts

included within it remain a part of the reservation

until separated therefrom by Congress.” 215 U.S. at

285. This understanding of reservations has continued. See Solem v. Bartlett, 465 U.S. 463, 470 (1984)

(“Once a block of land is set aside for an Indian

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Reservation and no matter what happens to the title

of individual plots within the area, the entire block

retains its reservation status until Congress explicitly

indicates otherwise.” (citing Celestine, 215 U.S. at

285)).

3. Indian Country

In 1948, Congress amended the Major Crimes Act

and codified the definition of “Indian country.” See Act

of June 25, 1948, ch. 645, 62 Stat. 683, 757; see also

Alaska v. Native Village of Venetie Tribal Gov’t, 522

U.S. 520, 528–30 (1998) (discussing term’s case-law

origins); Cohen at 189–90 (discussing codification).

Within the definition, Congress included the

boundaries-based concept of reservations that had

developed in the case law under the Major Crimes

Act.23 Under 18 U.S.C. § 1151, “Indian country” means:

(a) all land within the limits of any Indian

reservation under the jurisdiction of the

United States Government, notwithstanding

the issuance of any patent, and, including

rights-of-way running through the reservation,

(b) all dependent Indian communities within

the borders of the United States whether

within the original or subsequently acquired

territory thereof, and whether within or without the limits of a state, and

Before the 1948 codification, Congress in 1932 had also provided that the Major Crimes Act would apply to enumerated

crimes committed by Indians “on and within any Indian reservation under the jurisdiction of the United States Government,

including rights of way running through the reservation.” Act of

June 28, 1932, 47 Stat. 336, 337.

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which have not been extinguished, including

rights-of-way running through the same.

18 U.S.C. § 1151 (paragraph breaks added). 24 If an

area qualifies under any of these definitions, it is

Indian country. See Okla. Tax Comm’n v. Sac & Fox

Nation, 508 U.S. 114, 123 (1993) (“Congress has

defined Indian country broadly to include formal and

informal reservations, dependent Indian communities, and Indian allotments, whether restricted or held

in trust by the United States.”); see also Indian

Country, U.S.A., 829 F.2d at 973 (“A formal designation of Indian lands as a ‘reservation’ is not required

for them to have Indian country status.”). Id.

At the same time Congress enacted this definition of

Indian country, it also amended the Major Crimes Act

so that it would apply in Indian country as defined

in the statute. See 62 Stat. at 758. Thus, the Major

Crimes Act now applies in all of Indian country, see 18

U.S.C. § 1153(a), not only reservation land.

Within § 1151’s definition of Indian country, the

§ 1151(a) reservation clause concerns us here. Congress provided that “Indian country” includes “all land

within the limits of any Indian reservation under the

jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation.” 18

U.S.C. § 1151(a) (emphasis added). Thus, land within

the boundaries of an Indian reservation is in “Indian

country.”

“Indian country” carries a different meaning for certain laws

relating to intoxicants. See 18 U.S.C. §§ 1154, 1156; see also 18

U.S.C. § 1151 (defining “Indian country” “[e]xcept as otherwise

provided in sections 1154 and 1156 of this title”). These exceptions are not relevant here.

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The Supreme Court confirmed this understanding

in Seymour v. Superintendent of Washington State

Penitentiary, 368 U.S. 351 (1962). In that case, an

Indian sought federal habeas relief after being convicted in Washington state court of burglary, one of

the Major Crimes Act’s enumerated offenses. See 18

U.S.C. § 1153(a); see also Seymour, 368 U.S. at 352 n.2.

He argued the United States had exclusive jurisdiction

because the crime occurred within an Indian reservation and therefore within Indian country. See 368 U.S.

at 352–54. The State of Washington argued that even

though the crime occurred on land within the reservation’s borders, the particular parcel was owned by a

non-Indian. See id. at 357. Ruling for the Indian

petitioner, the Supreme Court said Congress’s definition of Indian country in § 1151(a) “squarely put to

rest” this argument. Id. “Since the burglary with which

[the defendant] was charged occurred on property

plainly located within the limits of [the] reservation,

the courts of Washington had no jurisdiction to try him

for that offense.” Id. at 359. Under § 1151(a), therefore,

all lands within the boundaries of a reservation have

Indian country status.

4. Reservation Disestablishment and Diminishment

Only Congress can disestablish or diminish a reservation. 25 In Lone Wolf v. Hitchcock, 187 U.S. 553

(1903), the Supreme Court said Congress has the

The terms “disestablished” and “diminished” “have at times

been used interchangeably,” but “disestablishment generally

refers to the relatively rare elimination of a reservation while

diminishment commonly refers to the reduction in size of a

reservation.” Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010, 1017

(8th Cir. 1999). Here, the State argues Congress disestablished

the Creek Reservation.

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power to unilaterally abrogate treaties made with

Indian tribes. Id. at 566. “Congress possesses plenary

power over Indian affairs, including the power to

modify or eliminate tribal rights.” South Dakota v.

Yankton Sioux Tribe, 522 U.S. 329, 343 (1998). This

includes the power to eliminate or reduce a reservation against a tribe’s wishes and without its consent.

See Solem, 465 U.S. at 470 n.11 (explaining the Lone

Wolf Court “decided that Congress could diminish

reservations unilaterally”). Because “only Congress

can alter the terms of an Indian treaty by diminishing

a reservation,” the Supreme Court has said the

“touchstone” of whether a reservation’s boundaries

have been altered is congressional purpose. Yankton

Sioux Tribe, 522 U.S. at 343; see also Rosebud Sioux

Tribe v. Kneip, 430 U.S. 584, 588 n.4 (1977) (“The focus

of our inquiry is congressional intent.”).

Having recognized Congress’s power to disestablish

and diminish Indian reservations, the Supreme Court

also has developed a framework to determine whether

Congress has exercised its power with respect to a

given reservation. We next discuss (a) the presumption against disestablishment and diminishment,

(b) Congress’s pursuit of a policy called allotment and

its relationship to reservation borders, and (c) the

Supreme Court’s three-part Solem test for determining whether Congress has altered a reservation’s

boundaries.

a. Presumption against disestablishment and

diminishment

Courts do not lightly infer that Congress has exercised its power to disestablish or diminish a reservation. See DeCoteau v. Dist. Cty. Court for the Tenth

Judicial Dist., 420 U.S. 425, 444 (1975) (“[The

Supreme] Court does not lightly conclude that an

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Indian reservation has been terminated.”). Indeed, the

Supreme Court has said courts must approach these

issues with a “presumption” that Congress did not

intend to disestablish or diminish a reservation.

Solem, 465 U.S. at 481; see also Absentee Shawnee

Tribe v. Kansas, 862 F.2d 1415, 1417 (10th Cir. 1988)

(“With regard to acts of Congress subsequent to the

establishment of the reservation, the courts adopt an

interpretational policy against diminishing an Indian

reservation.”). 26 Congress can do so, but its intent

“must be ‘clear and plain.’” Yankton Sioux Tribe, 522

U.S. at 343 (quoting United States v. Dion, 476 U.S.

734, 738–39 (1986)); see also Solem, 465 U.S. at 470

(explaining Congress must “clearly evince an intent to

change boundaries before diminishment will be found”

(quotations omitted)); id. at 476 (discussing a statute’s

lack of “explicit expression of congressional intent to

diminish” and finding reservation preserved); DeCoteau,

420 U.S. at 444 (“[The Supreme Court] requires that

the congressional determination to terminate . . . be

expressed on the face of the Act or be clear from the

surrounding circumstances and legislative history.”

(ellipsis in original) (quotations omitted)).

b. The policy of allotment

The Supreme Court’s test, discussed below, for

determining whether Congress intended to disestablish or diminish a reservation developed after Congress pursued a policy known as allotment.

The presumption against reservation disestablishment and

diminishment accords with the general principle that an intent

“to abrogate or modify a treaty is not to be lightly imputed to the

Congress.” Menominee Tribe of Indians v. United States, 391 U.S.

404, 413 (1968) (quotations omitted); see also South Dakota v.

Bourland, 508 U.S. 679, 687 (1993).

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Following decades of setting aside “large sections

of the western States and Territories . . . for Indian

reservations,” Congress in the late nineteenth century

adopted “the view that the Indians tribes should

abandon their nomadic lives on the communal reservations and settle into an agrarian economy on

privately-owned parcels of land.” Solem, 465 U.S. at

466. 27 This policy involved Congress dividing, or

“allotting,” communal Indian lands into individualized

parcels for private ownership by tribal members. Not

incidentally, the policy also “open[ed] up unallotted

lands for non-Indian settlement,” allowing these “surplus” lands to be sold to non-Indians. Id. at 467. Laws

designed “to force Indians onto individual allotments

carved out of reservations and to open up unallotted

lands for non-Indian settlement” are often referred to

as “surplus land acts.” Id.

Allotment on its own does not disestablish or diminish a reservation. See Mattz v. Arnett, 412 U.S. 481,

497 (1973) (explaining allotment can be “completely

consistent with continued reservation status”). But

Congress, in passing surplus land acts, has altered the

boundaries of some reservations. See Solem, 465 U.S.

at 469 (“[S]ome surplus land acts diminished reservations, and other surplus land acts did not.” (citations

omitted)).

Congress pursued the allotment policy on a national

scale in the 1887 General Allotment Act. See Act of

Or, as the Supreme Court described the policy at the time,

“Of late years a new policy has found expression in the legislation

of Congress,[] a policy which looks to the breaking up of tribal

relations, the establishing of the separate Indians in individual

homes . . . .” In re Heff, 197 U.S. 488, 499 (1905), overruled in part

by United States v. Nice, 241 U.S. 591, 601 (1916).

38a

Feb. 8, 1887, ch. 119, 24 Stat. 388.28 That law, however, did not affect all Indian tribes and reservations.

The Creek Nation was not included in the General

Allotment Act. See § 8, 24 Stat. at 391. By the early

twentieth century, “Congress was dealing with the

surplus land question on a reservation-by-reservation

basis, with each surplus land act employing its own

statutory language, the product of a unique set of

tribal negotiation and legislative compromise.” Solem,

465 U.S. at 467.

During the allotment era, Congress “anticipated the

imminent demise” of reservations. Id. at 468; see also

id. (“[M]embers of Congress voting on the surplus land

acts believed to a man that within a short time—

within a generation at most—the Indian tribes would

enter traditional American society and the reservation

system would cease to exist.”); see also Yankton Sioux

Tribe, 522 U.S. at 343 (explaining Congress “assumed

that the reservation system would fade over time”).

The Supreme Court has said this general hostility to

reservations and Indian communal life does not establish that a particular reservation was disestablished:

Although the Congresses that passed the

surplus land acts anticipated the imminent

demise of the reservation and, in fact, passed

the acts partially to facilitate the process, we

have never been willing to extrapolate from

this expectation a specific congressional

purpose of diminishing reservations with the

passage of every surplus land act. Rather, it

The policy of the General Allotment Act, the Supreme Court

has said, “was to continue the reservation system and the trust

status of Indian lands, but to allot tracts to individual Indians for

agriculture and grazing. When all the lands had been allotted and

the trust expired, the reservation could be abolished.” Mattz, 412

U.S. at 496.

39a

is settled law that some surplus land acts

diminished reservations, and other surplus

land acts did not.

Solem, 465 U.S. at 468–69 (citations omitted); see also

Pittsburg & Midway Coal Mining Co. v. Yazzie, 909

F.2d 1387, 1395 (10th Cir. 1990) (explaining congressional belief “that all reservations would be temporary

is irrelevant in determining whether the boundaries

of a specific reservation were being diminished by

the language of a given statute”). Whether there was

“a specific congressional purpose” to disestablish or

diminish a particular reservation “depends on the

language of the act and the circumstances underlying

its passage.” Solem, 465 U.S. at 469. To distinguish

congressional acts that changed a reservation’s borders from those “that simply offered non-Indians the

opportunity to purchase land within established reservation boundaries,” the Supreme Court has developed a three-part framework. Id. at 470.

c. Solem factors

In Solem v. Bartlett, a member of the Cheyenne

River Sioux Tribe sought habeas relief after a state

court in South Dakota convicted him of attempted

rape. Id. at 465; see also id. at 465 n.2 (explaining

offense fell within Major Crimes Act). The defendant

argued the state court lacked jurisdiction because the

crime occurred on the reservation. Id. The Supreme

Court developed and applied its three-part framework

to assess whether the reservation had been diminished. See id. at 470–80. It concluded the reservation

had not been diminished and granted habeas relief

because the federal government had exclusive jurisdiction. Id. at 481. Solem’s three factors are as follows:

First, Solem instructs courts to examine the text of

the statute purportedly disestablishing or diminishing

40a

the reservation. Statutory language is “[t]he most

probative evidence of congressional intent.” Id. at 470.

“Explicit reference to cession or other language evidencing the present and total surrender of all tribal

interests strongly suggests that Congress meant to

divest from the reservation all unallotted opened

lands.” Id. When such language is combined with

language committing Congress to compensate the tribe

for its land with a fixed sum, Congress’s intent to

diminish a reservation is especially clear. Id. at 470–

71. No “particular form of words,” however, is necessary to diminish a reservation. Hagen v. Utah, 510

U.S. 399, 411 (1994).

Second, Solem requires courts to consider “events

surrounding the passage” of the statute. 465 U.S. at 471.

Even when the statutory language “would otherwise

suggest reservation boundaries remained unchanged,”

the Court has been willing to find that Congress

altered the borders if evidence at step two “unequivocally reveal[s] a widely-held, contemporaneous understanding that the affected reservation would shrink

as a result of the proposed legislation.” Id. Step-two

contemporary historical evidence includes “the manner in which the transaction was negotiated with the

tribes . . . and the tenor of legislative reports presented

to Congress.” Id.

Third, Solem considers, though “[t]o a lesser extent,”

“events that occurred after the passage” of the relevant statute. Id. This evidence can include “Congress’s

own treatment of the affected areas” as well as “the

manner in which the Bureau of Indian Affairs and

local judicial authorities dealt with unallotted open

lands.” Id. Later demographic history—evidence of

“who actually moved onto opened reservation lands”—

also offers a “clue as to what Congress expected would

41a

happen once land on a particular reservation was

opened to non-Indian settlers.” Id. at 471–72.

In conducting this three-part inquiry, “[t]here are

. . . limits to how far” courts can “go to decipher

Congress’s intention in any particular surplus land

act.” Id. at 472. “Throughout the inquiry,” courts must

“resolve any ambiguities in favor of the Indians” and

remember that disestablishment and diminishment

are not to be lightly found. Hagen, 510 U.S. at 411. The

“rule by which legal ambiguities are resolved to the

benefit of the Indians” is applied to its “broadest

possible scope” in disestablishment and diminishment

cases. DeCoteau, 420 U.S. at 447. Absent “substantial

and compelling evidence” courts are “bound by . . .

traditional solicitude for the Indian tribes” to conclude

“that the old reservation boundaries survived.” Solem,

465 U.S. at 472.

* * * *

Having addressed AEDPA, the substantive law of

Indian country jurisdiction, and reservation disestablishment and diminishment, we turn now to our

analysis.

III. DISCUSSION

Our analysis addresses three issues:

(A) Whether there was clearly established federal

law as determined by the Supreme Court when the

OCCA addressed Mr. Murphy’s jurisdictional claim.

We conclude the Solem framework constituted clearly

established law.

(B) Whether the OCCA rendered a decision contrary to this clearly established law when it resolved

Mr. Murphy’s jurisdictional claim. We conclude that

it did because the OCCA failed to apply the Solem

framework and took an approach incompatible with it.

42a

jurisdiction over Mr. Murphy’s case. We conclude that

it does because, under the Solem framework, Congress

has not disestablished the Creek Reservation.

Because the crime occurred in Indian country,

Oklahoma lacked jurisdiction. We therefore reverse

the district court’s denial of habeas relief and remand

with instructions to grant Mr. Murphy’s application

for a writ of habeas corpus under 28 U.S.C. § 2254.

A. Clearly Established Federal Law

Our first inquiry under § 2254(d)(1) is whether

clearly established federal law governed Mr. Murphy’s

claim. See House, 527 F.3d at 1015. The OCCA issued

its jurisdictional decision on December 7, 2005. See

Murphy, 124 P.3d 1198. Our survey of clearly established federal law is therefore limited to decisions of

the Supreme Court before that date. See 28 U.S.C.

§ 2254(d)(1); Greene, 565 U.S. at 38. We conclude the

three-part Solem framework supplied the OCCA with

clearly established federal law to decide Mr. Murphy’s

claim.

1. Solem—Clearly Established Law in 2005

The Supreme Court decided Solem in 1984, more

than two decades before the OCCA decided Mr.

Murphy’s case. Even in 1984, the Solem Court recognized the three-part framework it applied was not

a new development in the law. The Solem Court

explained its precedent had already “established a

fairly clean analytical structure” for deciding whether

Congress altered a reservation’s borders. 465 U.S. at

470. The Court’s pre-Solem decisions relied on the

factors discussed in Solem to assess reservation disestablishment and diminishment. See Rosebud Sioux

Tribe, 430 U.S. at 587 (reservation diminished);

43a

DeCoteau, 420 U.S. at 427–28 (reservation disestablished); Mattz, 412 U.S. at 505 (reservation not disestablished); Seymour, 368 U.S. at 359 (reservation not

disestablished); see also Navajo Tribe of Indians v.

New Mexico, 809 F.2d 1455, 1476 n.30 (10th Cir. 1987)

(“Although the Tribe refers to Solem as ‘significant

new authority,’ Solem is rather one of a line of cases

construing the dimensions of ‘Indian country.’” (citation omitted)).

Between 1984 when Solem was decided and 2005

when the OCCA issued its decision in Mr. Murphy’s

case, the Supreme Court did nothing to call Solem into

doubt. Rather, it reaffirmed Solem’s three-part framework and applied it to other reservations in the 1990s.

See Yankton Sioux Tribe, 522 U.S. at 333, 344 (discussing three factors and concluding reservation was

diminished); Hagen, 510 U.S. at 410–11, 421 (concluding Congress diminished reservation and explaining

Solem directs courts “to look to three factors”).

In the years before the OCCA’s decision, federal

appeals courts, including this court, recognized Solem

provided the governing framework. See, e.g., Shawnee

Tribe v. United States, 423 F.3d 1204, 1221 (10th Cir.

2005) (discussing Solem and explaining that “we look

to three factors to determine whether a reservation’s

boundaries have been altered”); United States v. Webb,

219 F.3d 1127, 1131 (9th Cir. 2000) (identifying Solem

as “well established Supreme Court precedent”);

Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010, 1022–23

(8th Cir. 1999) (explaining Solem provides “the standard rules of interpretation”); Yazzie, 909 F.2d at 1395

(“The current analytic structure has been summarized

in Solem.”). So did state high courts. See, e.g., State v.

Greger, 559 N.W.2d 854, 860–61 (S.D. 1997) (explaining Hagen retained Solem’s “traditional approach to

diminishment questions”); State v. Davids, 534 N.W.2d

44a

70, 72 (Wis. 1995) (noting Solem Court “identif[ied]

the governing principles of diminishment”); State v.

Perank, 858 P.2d 927, 935–36 (Utah 1992) (reciting

Solem framework as governing law).

The Supreme Court has recognized that a legal

framework for evaluating a given type of claim can

constitute clearly established law under § 2254(d)(1).

For example, the Court’s decision in Strickland v.

Washington, 466 U.S. 668 (1984), announced a twopart test for evaluating claims of ineffective assistance

of counsel, see id. at 687 (discussing performance and

prejudice), and the Court has since said this framework constitutes clearly established law, Williams,

529 U.S. at 391 (controlling opinion of Stevens, J.) (“It

is past question that the rule set forth in Strickland

qualifies as ‘clearly established Federal law, as determined by the Supreme Court of the United States.’”

(quoting 28 U.S.C. § 2254(d)(1))). Although claims of

lawyer ineffectiveness are each unique and require

fact-intensive analysis, Strickland’s framework still

applies, and the variety of fact patterns “obviates

neither the clarity of the rule nor the extent to which

the rule must be seen as ‘established’ by [the Supreme]

Court.” Id.

We conclude Solem’s three-part framework for evaluating whether Congress has disestablished or diminished an Indian reservation was clearly established

when the OCCA rendered its decision. The State’s

arguments to the contrary miss the mark.

2. The State’s Arguments

The State acknowledges the Supreme Court has

applied the Solem framework to “surplus land acts,

which provided for the sale of large areas of land for

white settlement,” but it argues that, with respect to

the Creek Nation, Congress allotted almost all of the

45a

Reservation to tribal members. Aplee. Br. at 46–47.

This point has nothing to do with whether the Solem

framework applies, though it does suggest Congress

did not intend to disestablish the Creek Reservation.

The State offers no explanation for why the proportion

of land allotted to tribal members relative to the land

opened to non-Indian settlement makes a difference to

whether Solem applies. In making its disestablishment case, the State relies on statutes that allotted the

Creek Reservation, and we discuss these laws below.

Those statutes, like the statute in Solem, “force[d]

Indians onto individual allotments carved out of

[a] reservation[] and . . . open[ed] up unallotted lands

for non-Indian settlement.” Solem, 465 U.S. at 467.

Whether Congress disestablished the Creek Reservation through those statutes is the kind of question the

Solem framework was built to answer.

The State also argues that Congress, in addition to

allotting Creek lands, “took a number of steps toward[]

the complete abolition of the Creek Nation as a

political entity.” Aplee. Br. at 46; see also id. at 47.

Below, we consider the State’s arguments about political dissolution as they relate to reservation disestablishment. But the State offers no explanation or legal

authority for why legislation dealing with a tribe’s

political status would make the Solem framework

anything less than clear when it comes to reservation

disestablishment—the issue before us.

Despite its arguments that there is no clearly

established law, the State’s brief recognizes Solem is

controlling. It defends the substantive correctness of

the OCCA’s decision by reference to Solem’s three-part

test. Nowhere does the State argue that some other

legal framework applies.

* * * *

46a

Because clearly established Supreme Court law

governs Mr. Murphy’s Indian country jurisdictional

claim, we proceed to the next step of the § 2254(d)(1)

inquiry: whether the OCCA rendered a decision that

was “contrary to” the Solem framework.

B. The OCCA Decision—Contrary to Clearly

Established Federal Law

Before we address whether the OCCA’s decision was

“contrary to” Solem, we consider—and reject—Mr.

Murphy’s threshold argument that the OCCA failed to

adjudicate his reservation claim on the merits. We

then consider whether the OCCA’s merits decision was

“contrary to” the clearly established Solem framework

discussed above. We conclude it was.

1. The OCCA’s Merits Decision

The following is the entirety of the OCCA’s discussion of the jurisdictional issue with respect to the

Reservation:

The remaining issue, under proposition one,

is whether or not the land in question is part

of a Creek Nation reservation that has never

been disestablished or is part of a dependent

Indian community.[29] Unfortunately, the District Court decided, based upon the Assistant

As already mentioned, Mr. Murphy pursued three theories

for Indian country jurisdiction before the OCCA. This part of the

OCCA’s discussion addressing Mr. Murphy’s reservation argument under § 1151(a) followed its rejection of his allotment theory

under § 1151(c). We omit the OCCA’s discussion of the “dependent Indian community” theory under § 1151(b) because that issue

is not before us. And although Mr. Murphy again raises the

allotment theory in this appeal, we do not reach that issue

because we agree with him that the crime occurred within the

Creek Reservation.

47a

District Attorney’s urging, that these questions were beyond the scope of the evidentiary

hearing, even though we clearly asked the

Court to determine if the tract in question

was Indian country under 18 U.S.C. § 1151.

Be that as it may, the error was alleviated

when the District Court allowed Petitioner’s[30] counsel to make an extended offer

of proof regarding the testimony and evidence

that would have been presented on these two

questions had that opportunity been given.

Accordingly, we find the error was harmless.

Even if the evidence had been admitted, it is

insufficient to convince us that the tract in

question qualifies as a reservation or dependent Indian community.

Petitioner’s proffered expert, Monta Sharon

Blackwell, stated by affidavit that “[t]here

was never a formal Creek Nation ‘reservation’

but for practical purposes” certain treaty language was “tantamount to a reservation

under Federal law.” Thus, the “Creek Nation,

historically and traditionally, is a confederacy

of autonomous tribal towns, or Talwa, each

with its own political organization and

leadership.”[31]

The OCCA referred to Mr. Murphy as “Petitioner.”

As part of his offer of his proof on the reservation issue, Mr.

Murphy submitted an affidavit from Ms. Blackwell, an attorney

with more than two decades of experience practicing Indian

law with the U.S. Department of the Interior. See Blackwell Aff.

¶¶ 3–4, State Post-Conviction Record, Vol. 1 at 151. Ms.

Blackwell stated the tract of land where the crime occurred “falls

within the territorial boundaries of the Muscogee (Creek)

Nation.” Id. ¶ 13. As the OCCA pointed out, she stated “[t]here

was never a formal Creek Nation ‘reservation’” because the Creek

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Ms. Blackwell and Jeff Dell[32] both took the

position that the historical boundaries of the

Creek Nation remained intact even after the

various Creek lands were subjected to the

allotment process, but no case is cited for the

position that the individual Creek allotments

remain part of an overall Creek reservation

that still exists today.18

18 It seems redundant, however, to treat

lands as both a reservation and an allotment. Section 1151 clearly makes a distinction between the two.

The best authority on this point is Indian

Country, U.S.A., Inc. v. State of Oklahoma,

829 F.2d at 975, which treats the Creek

Nation lands as a “reservation” as of 1866.19

However, the Tenth Circuit declined to

answer the question of whether the exterior

boundaries of the 1866 Creek Nation have

been disestablished and expressly refused to

express an opinion in that regard concerning

Nation had “acquired the land at issue in this case through treaty

with the United States.” Id. ¶ 14. But there is no dispute that the

Creek Nation had a reservation; the State agrees it was intact in

1900, see Aplee. Br. at 75 n.25. Rather, the dispute is whether

Congress has disestablished the Creek Reservation. In Ms.

Blackwell’s opinion, “[t]he exterior territorial boundaries of the

Creek Nation were not altered” by congressional acts around the

turn

the twentieth century. Blackwell Aff. ¶ 21. She concluded “the

Muscogee (Creek) Nation has not been disestablished” and that

“regardless of title ownership as Indian or non-Indian, the [tract

where the crime occurred] is Indian country within the meaning

of Federal Law.” Id. ¶ 22.

Mr. Dell, “an Assistant Realty Officer for the Creek Nation,

rendered a title opinion on behalf of the State.” 124 P.3d at 1203.

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allotted Creek lands. See id. at 975 n. 3, 980

n. 5.

19 The case finds the term “reservation,”

for purposes of defining Indian country,

“simply refers to those lands which Congress intended to reserve for a tribe and

over which Congress intended primary

jurisdiction to rest in the federal and tribal

governments.” 829 F.2d at 973.

If the federal courts remain undecided on this

particular issue, we refuse to step in and

make such a finding here.

Murphy, 124 P.3d at 1207–08 (paragraph numbers

omitted).

Mr. Murphy, focusing mainly on the court’s last

sentence, argues the OCCA refused to adjudicate his

reservation claim on the merits. The State maintains

the OCCA decided the reservation issue on the merits

because it considered Mr. Murphy’s evidence, found it

insufficient, and denied relief.

Whether the OCCA adjudicated the jurisdictional

claim “on the merits” as that phrase is used in 28

U.S.C. § 2254(d) determines our standard of review.

As discussed above, we have chosen to assume (without deciding) that AEDPA applies to jurisdictional

claims of the type Mr. Murphy raises. But even when

a type of claim can qualify for AEDPA review, federal

courts do not apply AEDPA deference when the state

court did not adjudicate the specific claim “on the

merits.” See Cone v. Bell, 556 U.S. 449, 472 (2009);

Stouffer v. Duckworth, 825 F.3d 1167, 1179 (10th Cir.

2016) (“[I]f the state court did not decide the claim on

the merits, the stringent principles of deference under

28 U.S.C. § 2254 are inapplicable.” (quotations

omitted)), cert. denied, 137 S. Ct. 1226 (2017). If the

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state court did not adjudicate the claim “on the merits,”

there is no decision to which the federal court can

defer. See Stouffer v. Trammell, 738 F.3d 1205, 1213

(10th Cir. 2013) (explaining that, when AEDPA does

not apply, “[w]e consider legal questions de novo and

factual findings, if any, for clear error”).

The Supreme Court has explained that a state

court’s decision is “on the merits” even when it denies

the prisoner’s claim “without an accompanying statement of reasons.” Richter, 562 U.S. at 92. Indeed, “it

may be presumed that the state court adjudicated the

claim on the merits in the absence of any indication or

state-law procedural principles to the contrary.” Id. at

99 (emphasis added); see also Johnson v. Williams, 133

S. Ct. 1088, 1091, 1094–96 (2013). Thus, outside of the

“unusual circumstances” when the presumption of a

merits adjudication is rebutted, Johnson, 133 S. Ct.

at 1096, federal habeas relief is available to state

prisoners only under the limited circumstances stated

in § 2254(d).

Although the OCCA’s opinion gives both sides something to draw on, we agree with the State that the

court rendered a merits decision.33 The OCCA remarked

in conclusion that it “refuse[d] to step in,” 124 P.3d at

1208, but Mr. Murphy’s argument ignores the rest of

the OCCA’s discussion in which the court discussed

his offer of proof on the reservation issue and said

his argument was unpersuasive. We do not read the

OCCA’s final sentence as a refusal to decide the

reservation question at all but rather as a refusal to

decide it in Mr. Murphy’s favor. Even if Mr. Murphy’s

reading is plausible, ambiguity is insufficient to overcome the presumption that the OCCA’s adjudication

Because we agree with the State, we need not address its

alternative contention that Mr. Murphy waived his meritsdetermination argument.

51a

was on the merits. See Richter, 562 U.S. at 92 (discussing presumption of merits adjudication). Thus, because

the OCCA’s adjudication of the reservation issue was

on the merits, AEDPA applies and Mr. Murphy cannot

receive habeas relief withoutshowing the OCCA’s decision meets the standard set out in § 2254(d). See

Lay v. Royal, 860 F.3d 1307, 1317 (10th Cir. 2017)

(“Because the OCCA addressed the merits . . . we may

only grant habeas relief if we find that the OCCA’s

decision was contrary to . . . settled federal law . . . .”

(citation omitted)). We turn to that question next.

2. The OCCA’s Decision Was Contrary to Solem

Mr. Murphy argues that, if the OCCA decided the

reservation jurisdiction issue, its decision was “contrary to” clearly established Supreme Court authority.

We agree.

a. No citation to Solem

Nowhere in its discussion of the reservation issue—

nor anywhere else in its opinion—did the OCCA cite

Solem, Hagen, Yankton Sioux Tribe, or any of the

Supreme Court’s other Indian reservation disestablishment precedent. 34 This failure to cite governing

law, however, does not on its own mark the OCCA

decision as “contrary to” that law. See Mitchell v.

Esparza, 540 U.S. 12, 16 (2003) (per curiam) (“A state

court’s decision is not contrary to clearly established

Federal law simply because the court did not cite [the

Supreme Court’s] opinions.” (alterations and quotations omitted)). State courts can apply clearly established federal law without citing to it. See Early v.

The OCCA included Rosebud Sioux Tribe, 430 U.S. 584, in

one footnoted string citation, but it was in the context of the

allotment issue, not the reservation question. See 124 P.3d at

1205 n.14.

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Packer, 537 U.S. 3, 8 (2002) (per curiam). Indeed,

AEDPA “does not even require [state court] awareness

of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision

contradicts them.” Id.

Here, the OCCA did not merely fail to cite controlling Supreme Court authority, it failed to apply it, and

in deviating from Solem, the OCCA’s reasoning contradicted clearly established law.

b. Failure to apply Solem

Setting aside the absence of citations, the substance

of the OCCA’s analysis lacks even cursory engagement

with any of the three Solem factors. The OCCA did not

evaluate any statute to see if Congress had disestablished the Creek Reservation. It also did not evaluate

the historical context of any laws. Nor did the OCCA

evaluate later treatment of the area in question or

demographic history. The OCCA’s decision failed to

apply the required legal standard to the facts.

What the OCCA did say in its analysis contradicted

Solem. Instead of heeding Solem’s “presumption” that

an Indian reservation continues to exist until Congress acts to disestablish or diminish it, see 465 U.S.

at 481, the OCCA flipped the presumption by requiring evidence that the Creek Reservation had not been

disestablished—that it “still exists today,” 124 P.3d at

1207. In other words, the OCCA improperly required

Mr. Murphy to show the Creek Reservation had not

been disestablished instead of requiring the State to

show that it had been. This “contradicts” governing

law. Williams, 529 U.S. at 405 (controlling opinion

of O’Connor, J.); see id. (“A state-court decision will

certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts

the governing law set forth in our cases.”); see also

53a

Lafler v. Cooper, 566 U.S. 156, 173 (2012) (“[T]he

[State] Court of Appeals identified respondent’s

ineffective-assistance-of-counsel claim but failed to

apply Strickland to assess it. . . . By failing to apply

Strickland to assess the ineffective-assistance-ofcounsel claim respondent raised, the state court’s

adjudication was contrary to clearly established federal law.”). The OCCA applied the wrong law.

Instead of applying the Solem factors, the OCCA

looked for federal court decisions holding that the Reservation continues to exist. This yielded the OCCA’s

single citation to legal authority—our decision in

Indian Country, U.S.A., which was not a disestablishment case. See 829 F.2d at 975 (“In the present case,

we need not decide whether the exterior boundaries of

the 1866 Creek Nation have been disestablished.”).

The OCCA called Indian Country, U.S.A., the “best

authority” for the position that there is still a Creek

Reservation. 124 P.3d at 1207. Indeed, we held there

is still a Creek Reservation, but we had no occasion to

determine whether the Reservation’s 1866 boundaries

remained intact. See 829 F.2d at 975 n.3, 976 (holding

lands at issue “still retain their reservation status

within the meaning of 18 U.S.C. § 1151(a)”); id. at 980

n.5 (setting aside boundary question).

The Supreme Court has occasionally faulted federal

habeas courts for concluding state courts issued decisions that were “contrary to” federal law when the

federal court failed to give the “benefit of the doubt” to

the state court. See, e.g., Holland v. Jackson, 542 U.S.

649, 655 (2004) (per curiam); see also Woodford v.

Visciotti, 537 U.S. 19, 24 (2002) (per curiam). In those

cases, state courts properly articulated the governing

legal test in one part of their opinions but went on to

misstate the standard or give the impression that

what was actually applied deviated from binding

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federal law. See Holland, 542 U.S. at 654; Woodford,

537 U.S. at 22–24.

This is not one of those cases. The OCCA failed to

articulate or apply the proper legal framework anywhere in its opinion, and its analysis is incompatible

with the Solem framework. At oral argument, we

questioned the State about whether the OCCA had

applied Solem:

THE COURT: Is there anything to indicate

[the OCCA] applied [Solem]? Anything? Did

they mention steps one, two, and three?

THE STATE: They did not, Your Honor.

THE COURT: Did [the OCCA] say anything

that would fit in steps one, two, and three?

THE STATE: They—No.

Oral Arg. at 46:00–46:13. The State argues the

OCCA’s decision was not contrary to Solem. But the

OCCA applied the wrong law in adjudicating Mr.

Murphy’s reservation claim. Its adjudication was

“contrary to” clearly established law.

c. The State’s arguments

The State, repeating the OCCA’s mistake in reversing the presumption against disestablishment, argues

Mr. Murphy “failed to present evidence that Congress

did not intend disestablishment.” Aplee. Br. at 48

(emphasis added). But under Solem, that is not the

test. Solem and every case applying it presume that a

reservation continues to exist unless Congress has

legis

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