Murphy v. Royal, Nos. 07-7068
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
| Writing for the Court | MATHESON, Circuit Judge. |
| Citation | 875 F.3d 896 |
| 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. |
| Decision Date | 09 November 2017 |
| Docket Number | 15-7041,Nos. 07-7068 |
875 F.3d 896
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.
Nos. 07-7068
15-7041
United States Court of Appeals, Tenth Circuit.
November 9, 2017
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.
ORDER
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.
MATHESON, Circuit Judge.
TABLE OF CONTENTS
I. BACKGROUND...904
A. Factual History...904
B. Procedural History...905
1. Trial...905
2. Direct appeal...905
3. First Application for State Post-Conviction Relief...906
4. Filing of First Application for Federal Habeas Relief...906
5. Second Application for State Post-Conviction Relief...907
a. Evidentiary hearing...907
b. Appeal to the OCCA...908
c. Atkins trial and appeal...909
6. Federal District Court Proceedings on First Federal Habeas Application...910
7. First Appeal to the Tenth Circuit...910
8. Second Application for Federal Habeas Relief...910
9. This Consolidated Appeal...911
II. LEGAL BACKGROUND...911
A. Standard of Review...911
1. The Parties' Dispute...911
2. The AEDPA Standard...912
a. Overview...912
b. The "contrary to" clause...913
B. Indian Country Jurisdiction...913
1. Reservations...914
2. The Major Crimes Act...915
3. Indian Country...916
4. Reservation Disestablishment and Diminishment...917
a. Presumption against disestablishment and diminishment...918
b. The policy of allotment...918
c. Solem factors...920
III. DISCUSSION...921
A. Clearly Established Federal Law...921
1. Solem —Clearly Established Law in 2005...921
2. The State's Arguments...923
B. The OCCA Decision—Contrary to Clearly Established Federal Law...923
1. The OCCA's Merits Decision...923
2. The OCCA's Decision Was Contrary to Solem ...926
a. No citation to Solem ...926
b. Failure to apply Solem ...926
c. The State's arguments...927
C. Exclusive Federal Jurisdiction...923
1. Additional Legal Background...930
a. Supreme Court authority...930
b. Tenth Circuit authority...931
2. Additional Factual Background—Creek Nation History...932
a. Original homeland and forced relocation...932
b. Nineteenth century diminishment...933
c. 1867 Constitution and government...933
d. Early congressional regulation of modern-day Oklahoma...933
e. The push for allotment...934
f. Allotment and aftermath...934
g. Creation of Oklahoma...935
h. Away from allotment...936
i. Public Law 280...936
j. A new Creek Constitution...937
k. Our decision in Indian Country, U.S.A. ...937
3. Applying Solem ...937
a. Step One: Statutory Text...388
i. The statutes...939
1) Act of March 3, 1893, ch. 209, 27 Stat. 612 ("1893 Act")...939
2) Act of June 10, 1896, ch. 398, 29 Stat. 321 ("1896 Act")...940
3) Act of June 7, 1897, ch. 3, 30 Stat. 62 ("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
a) Allotment...941
b) Town sites...943
c) Lands reserved for tribal purposes...943
d) Future governance...943
6) "Supplemental Allotment Agreement," ch. 1323, 32 Stat. 500 (June 30, 1902)...944
7) "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
ii. Analysis...948
1) No hallmarks of disestablishment or diminishment...948
2) Signs Congress continued to recognize the Reservation...951
3) The State's title and governance arguments...951
a) Title...952
b) Governance...953
b. Step Two: Contemporary Historical Evidence...954
i. The State's evidence...954
1) 1892 Senate debat...955
2) 1894 Senate committee report...956
3) Other sources...956
ii. Mr. Murphy's and the Creek Nation's evidence...957
1) 1894 Dawes Commission records...957
2) 1895 Dawes letter...957
3) 1900 Attorney General opinion...957
4) Post-allotment evidence...958
iii. Analysis...959
c. Step Three: Later History...960
i. Treatment of the area...960
1) Congress...960
2) Executive...961
3) Federal courts...962
4) Oklahoma...963
5) Creek Nation...964
ii. Demographics...965
iii. Step-three concluding comment...966
IV. CONCLUSION...966
Patrick Dwayne Murphy asserts he was tried in the wrong court. He challenges the jurisdiction of the Oklahoma state court in which he was convicted of murder and sentenced to death. He contends he should have been tried in federal court because he is an Indian and the offense occurred in Indian country. We agree and remand to the district court to issue a writ of habeas corpus vacating his conviction and sentence.
The question of whether the state court had jurisdiction is straightforward but reaching an answer is not. We must navigate the law of (1) federal habeas corpus review of state court decisions, (2) Indian country jurisdiction generally, (3) Indian reservations specifically, and (4) how a 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....
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