Murphy v. Royal, 110917 FED10, 07-7068

Docket Nº:07-7068, 15-7041
Opinion Judge:MATHESON, CIRCUIT JUDGE.
Party Name: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.
Attorney: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. Sc...
Judge Panel:Before TYMKOVICH, Chief Judge, MATHESON, and PHILLIPS, Circuit Judges. TYMKOVICH, Chief Judge, concurring in the denial of rehearing en banc.
Case Date:November 09, 2017
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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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

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.

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.

TYMKOVICH, Chief Judge, concurring in the denial of rehearing en banc.

En banc review is not appropriate when, as here, a panel opinion faithfully applies Supreme Court precedent. An en banc court would necessarily reach the same result, since Supreme Court precedent precludes any other outcome. I write only to suggest this case might benefit from further attention by the Supreme Court.

As the panel opinion explains, the three-part framework of Solem v. Bartlett, 465 U.S. 463 (1984), governs evaluating whether Congress has disestablished an Indian reservation. But strictly applying Solem's three-part framework in this context, which strongly suggests de facto disestablishment, evokes "the thud of square pegs being pounded into round holes." Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1193 (9th Cir. 2005) (Kozinski, J., concurring), rev'd and remanded, 551 U.S. 701 (2007), and vacated, 498 F.3d 1059 (9th Cir. 2007).

In 1893, Congress created the Dawes Commission to negotiate with the Creek Nation for the express purpose of extinguishing national title to lands held by the Creek Nation, preferably through allotment. Act of Mar. 3, 1893, § 16, 27 Stat. 212 at 645. The Creek Nation refused to negotiate, so Congress began imposing restrictions. Over the following five years, Congress destroyed the Creek legal system and threatened to terminate Creek land ownership unless the tribe agreed to allotment. Faced with this threat, the Creek Nation agreed to allotment in 1901. Most land owned by the Creek Nation was then allotted to individual members of the tribe. Murphy v. Royal, 866 F.3d 1164, 1201-02 (10th Cir. 2017).

The parties hotly dispute the inferences to be drawn from the history of the Creek Nation. I am not without sympathy for Oklahoma's argument that Congress's series of actions here effectively constitute disestablishment, but the panel properly rejected that argument: Solem is clear that "[o]nce a block of land is set aside for an Indian Reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise." 465 U.S. at 470 (emphasis added); see also Murphy, 866 F.3d at 1219 (explaining that allotment alone cannot terminate a reservation under Supreme Court precedent).

Supreme Court precedent thus requires that evidence of intent to disestablish be "unequivocal[]." Nebraska v. Parker, 136 S.Ct. 1072, 1080-81 (2016). History, however, is not always well suited to provide the unequivocal evidence of disestablishment that Solem requires. Sometimes history is ambiguous, making it impossible to decide between competing narratives. Historians have been debating the Fall of Rome for millennia. Sometimes there will be unequivocal evidence one way or another. But sometimes not. When confronted with contemporaneous history that is far from unequivocal, Solem gives the edge to the tribes.

Solem itself recognized that "[w]here non-Indian settlers flooded into the opened portion of a reservation and the area has long since lost its Indian character . . . de facto, if not de jure, diminishment may have occurred." 465 U.S. at 471. But, the Solem Court continued, this recognition only extends so far: "When both an act and its legislative history fail to provide substantial and compelling evidence of a congressional intention to diminish Indian lands, we are bound by our traditional solicitude for the Indian tribes to rule that diminishment did not take place and that the old reservation boundaries survived the opening." Id. at 472. And Parker confirmed this approach. See Murphy, 866 F.3d at 1198 (discussing how Parker illustrates the significance Solem places in statutory text, even in the face of strong subsequent demographic evidence).

This case may present the high-water mark of de facto disestablishment: the boundaries of the Creek Reservation outlined by the panel opinion encompass a substantial non-Indian population, including much of the city of Tulsa; and Oklahoma claims the decision will have dramatic consequences for taxation, regulation, and law enforcement. The panel faithfully applied Supreme Court precedent holding that such "demographic evidence [cannot] overcome the absence of statutory text disestablishing the Creek Reservation." Murphy, 866 F.3d at 1232. But this may be the rare case where the Supreme Court wishes to enhance Steps Two and Three of Solem if it can be persuaded that the square peg of Solem is ill suited for the round hole of Oklahoma statehood. As Justice Cardozo wrote, "[e]xtraordinary situations may not wisely or fairly be subjected to tests or regulations that are fitting for the commonplace or normal." Pokora v. Wabash Ry. Co., 292 U.S. 98, 105-06 (1934).

In sum, this challenging and interesting case makes a good candidate for Supreme Court review.

MATHESON, CIRCUIT JUDGE.

TABLE OF CONTENTS

I. BACKGROUND ........................................................................................................... 2

A. Factual History .......................................................................................................... 3

B. Procedural History ..................................................................................................... 5

1. Trial ....................................................................................................................... 5

2. Direct appeal...

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