Murphy v. Royal
| Decision Date | 09 November 2017 |
| Docket Number | 15-7041,Nos. 07-7068,s. 07-7068 |
| Parties | Patrick Dwayne MURPHY, Petitioner–Appellant, v. Terry ROYAL Warden, Oklahoma State Penitentiary, Respondent–Appellee. Muscogee (Creek) Nation; Seminole Nation of Oklahoma; Keetoowah Band of Cherokee Indians, Amici Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
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.
These matters are before the court on the respondent's Petition for Panel Rehearing or Rehearing En Banc. We also have responses from the petitioner and the United Keetoowah Band of Cherokee Indians, in addition to amici curiae briefs from the United States and The Muscogee (Creek) Nation. We also have several motions pending seeking to file additional amici curiae briefs.
Upon consideration, the request for panel rehearing is denied by the original panel members. For clarification, however, the panel has decided, sua sponte , to amend the original decision at pages 49-50. A copy of the amended decision is attached to this order, and the clerk is directed to reissue the opinion nunc pro tunc to the original filing date of August 8, 2017. In addition, Chief Judge Tymkovich has filed a concurrence to the denial of rehearing, and that concurrence is likewise attached.
The Petition , the responses, the amici filings and the amended opinion were also circulated to all the judges of the court in regular active service who are not recused. See Fed. R. App. P. 35(a). As no judge on the original panel or the en banc court requested that a poll be called the request for en banc review is denied.
Finally, the motions filed by the Oklahoma Independent Petroleum Association, the Oklahoma Municipal League, and the Oklahoma Oil and Gas Association, et al., seeking leave to file amici curiae briefs are granted. Those briefs will be shown filed as of the date of this order.
TABLE OF CONTENTS
k. Our decision in Indian Country, U.S.A. ...937
1) Act of March 3, 1893, ch. 209, 27 Stat. 612 ("1893 Act")...939
2) Act of June 10, 1896, ch. 398, 29 Stat. 321 ("1896 Act")...940
3) Act of June 7, 1897, ch. 3, 30 Stat. 62 ("1897 Act")...940
4) "Curtis Act," ch. 517, 30 Stat. 495 (June 28, 1898)...941
5) "Original Allotment Agreement," ch. 676, 31 Stat. 861 (March 1, 1901)...941
b) Town sites...943
c) Lands reserved for tribal purposes...943
d) Future governance...943
6) "Supplemental Allotment Agreement," ch. 1323, 32 Stat. 500 (June 30, 1902)...944
7) "Five Tribes Act," ch. 1876, 34 Stat. 137, April 26, 1906...945
8) "Oklahoma Enabling Act," ch. 3335, 34 Stat. 267 (June 16, 1906)...947
1) No hallmarks of disestablishment or diminishment...948
2) Signs Congress continued to recognize the Reservation...951
3) The State's title and governance arguments...951
a) Title...952
1) 1892 Senate debat...955
2) 1894 Senate committee report...956
3) Other sources...956
1) 1894 Dawes Commission records...957
2) 1895 Dawes letter...957
3) 1900 Attorney General opinion...957
4) Post-allotment evidence...958
3) Federal courts...962
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
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.
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—...
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...deference to the decisions of state courts. Our review of the federal district court’s application of AEDPA is de novo." Murphy v. Royal , 875 F.3d 896, 913 n.20 (10th Cir. 2017), cert. granted , ––– U.S. ––––, 138 S.Ct. 2026, ––– L.Ed.2d –––– (2018).4 AEDPA additionally provides that "a de......
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Native Treaties and Conditional Rights After Herrera.
...perhaps because of Justice Gorsuch's recusal from Murphy due to prior oversight of the case on the Tenth Circuit. See Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), aff'd per curiam sub nom. Sharp v. Murphy, 140 S. Ct. 2412 (2020) (summarily affirming on the basis of McGirt); see also Mich......
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The Law and Economics of Crime in Indian Country
...(Okla. Crim. App. 2002). The issue involving Indian country was finally resolved by the U.S. Supreme Court in 2020. See Murphy v. Royal, 875 F.3d 896, 904 (10th Cir. 2017), aff’d sub nom . Sharp v. Murphy, 140 S. Ct. 2412 (2020). 220. 221. Hudetz, supra note 50 (“Tribal leaders from Yakama......
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SUPREME STALEMATES: CHALICES, JACK-O'-LANTERNS, AND OTHER STATE HIGH COURT TIEBREAKERS.
...140 S. Ct. 2412 (2020) (per curiam) (Justice Gorsuch did not participate in Sharp because he was on the Tenth Circuit for Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017); the Court initially deadlocked, but later resolved the case by relying on McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), a c......
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Review Proceedings
...v. Hobbs, 766 F.3d 809, 832 (8th Cir. 2014) (same); Atwood v. Ryan, 870 F.3d 1033, 1044 n.5 (9th Cir. 2017) (same); Murphy v. Royal, 875 F.3d 896, 925-26 (10th Cir. 2017) (federal habeas review not precluded when “ambiguity is insufficient to overcome presumption” that state court’s decisi......