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August 8, 2017 Appellate Case: 07-7068 Document: 01019851915 Date Filed: 08/08/2017 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS August 8, 2017 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________ PATRICK DWAYNE MURPHY, Petitioner - Appellant, v. Nos. 07-7068 & 15-7041 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. Appellate Case: 07-7068 Document: 01019851915 Date Filed: 08/08/2017 Page: 2 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. _________________________________ - ii - Appellate Case: 07-7068 Document: 01019851915 Date Filed: 08/08/2017 Page: 3 TABLE OF CONTENTS I. BACKGROUND ........................................................................................................... 2 A. Factual History .......................................................................................................... 3 B. Procedural History ..................................................................................................... 5 1. Trial ....................................................................................................................... 5 2. Direct appeal ......................................................................................................... 6 3. First Application for State Post-Conviction Relief ............................................... 6 4. Filing of First Application for Federal Habeas Relief .......................................... 7 5. Second Application for State Post-Conviction Relief .......................................... 8 a. Evidentiary hearing ................................................................................... 9 b. Appeal to the OCCA ............................................................................... 11 c. Atkins trial and appeal ............................................................................. 14 6. Federal District Court Proceedings on First Federal Habeas Application .......... 14 7. First Appeal to the Tenth Circuit (No. 07-7068) ................................................ 16 8. Second Application for Federal Habeas Relief ................................................... 16 9. This Consolidated Appeal ................................................................................... 16 II. LEGAL BACKGROUND ........................................................................................... 17 A. Standard of Review ................................................................................................. 17 1. The Parties’ Dispute ............................................................................................ 18 2. The AEDPA Standard ......................................................................................... 19 a. Overview ................................................................................................. 20 b. The “contrary to” clause .......................................................................... 21 B. Indian Country Jurisdiction ..................................................................................... 23 1. Reservations ........................................................................................................ 23 2. The Major Crimes Act ........................................................................................ 24 3. Indian Country .................................................................................................... 27 4. Reservation Disestablishment and Diminishment .............................................. 29 a. Presumption against disestablishment and diminishment ........................ 30 b. The policy of allotment ........................................................................... 32 - iii - Appellate Case: 07-7068 Document: 01019851915 Date Filed: 08/08/2017 Page: 4 c. Solem factors ........................................................................................... 34 III. DISCUSSION ............................................................................................................. 37 A. Clearly Established Federal Law ............................................................................. 37 1. Solem—Clearly Established Law in 2005 .......................................................... 38 2. The State’s Arguments ........................................................................................ 40 B. The OCCA Decision—Contrary to Clearly Established Federal Law .................... 41 1. The OCCA’s Merits Decision ............................................................................. 42 2. The OCCA’s Decision Was Contrary to Solem .................................................. 46 a. No citation to Solem ................................................................................ 46 b. Failure to apply Solem ............................................................................. 47 c. The State’s arguments ............................................................................. 49 C. Exclusive Federal Jurisdiction ................................................................................. 52 1. Additional Legal Background ............................................................................. 54 a. Supreme Court authority ......................................................................... 54 b. Tenth Circuit authority ............................................................................ 56 2. Additional Factual Background—Creek Nation History .................................... 58 a. Original homeland and forced relocation ................................................. 58 b. Nineteenth century diminishment ............................................................ 60 c. 1867 Constitution and government .......................................................... 61 d. Early congressional regulation of modern-day Oklahoma ....................... 61 e. The push for allotment ............................................................................. 62 f. Allotment and aftermath .......................................................................... 64 g. Creation of Oklahoma ............................................................................. 65 h. Away from allotment ............................................................................... 66 i. Public Law 280 ........................................................................................ 67 j. A new Creek Constitution ....................................................................... 68 k. Our decision in Indian Country, U.S.A. ................................................... 69 3. Applying Solem ................................................................................................... 70 a. Step One: Statutory Text ......................................................................... 70 - iv - Appellate Case: 07-7068 Document: 01019851915 Date Filed: 08/08/2017 Page: 5 i. The statutes .......................................................................................... 73 1) Act of March 3, 1893, ch. 209, 27 Stat. 612 (“1893 Act”) .............. 73 2) Act of June 10, 1896, ch. 398, 29 Stat. 321 (“1896 Act”) ............... 75 3) Act of June 7, 1897, ch. 3, 30 Stat. 62 (“1897 Act”) ....................... 75 4) “Curtis Act,” ch. 517, 30 Stat. 495 (June 28, 1898) ......................... 76 5) “Original Allotment Agreement,” ch. 676, 31 Stat. 861 (March 1, 1901) ............................................................................................... 77 a) Allotment .................................................................................... 77 b) Town sites ................................................................................... 80 c) Lands reserved for tribal purposes .............................................
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