Murphy v. Royal

866 F.3d 1164

Patrick Dwayne MURPHY, Petitioner-Appellant,

v.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.

Nos. 07-7068 & 15-7041

United States Court of Appeals, Tenth Circuit.

FILED August 8, 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.

MATHESON, Circuit Judge.

TABLE OF CONTENTS

I. BACKGROUND...1172

A. Factual History...1172

B. Procedural History...1173

1. Trial...1173

2. Direct appeal...1173

3. First Application for State Post-Conviction Relief...1173

4. Filing of First Application for Federal Habeas Relief...1174

5. Second Application for State Post-Conviction Relief...1174

a. Evidentiary hearing...1175

b. Appeal to the OCCA...1176

c. Atkins trial and appeal...1177

6. Federal District Court Proceedings on First Federal Habeas Application... 1177

7. First Appeal to the Tenth Circuit (No. 07-7068)...1178

8. Second Application for Federal Habeas Relief...1178

9. This Consolidated Appeal...1178

II. LEGAL BACKGROUND...1179

A. Standard of Review...1179

1. The Parties' Dispute...1179

2. The AEDPA Standard...1180

a. Overview...1180

b. The "contrary to" clause...1181

B. Indian Country Jurisdiction...1182

1. Reservations...1182

2. The Major Crimes Act...1182

3. Indian Country...1184

4. Reservation Disestablishment and Diminishment...1185

a. Presumption against disestablishment and diminishment...1185

b. The policy of allotment...1186

c. Solem factors...1187

III. DISCUSSION...1188

A. Clearly Established Federal Law...1189

1. Solem —Clearly Established Law in 2005...1189

2. The State's Arguments...1190

B. The OCCA Decision—Contrary to Clearly Established Federal Law...1190

1. The OCCA's Merits Decision...1191

2. The OCCA's Decision Was Contrary to Solem ...1193

a. No citation to Solem ...1193

b. Failure to apply Solem ...1193

c. The State's arguments...1195

C. Exclusive Federal Jurisdiction...1196

1. Additional Legal Background...1197

a. Supreme Court authority...1197

b. Tenth Circuit authority...1198

2. Additional Factual Background—Creek Nation History...1199

a. Original homeland and forced relocation...1199

b. Nineteenth century diminishment...1200

c. 1867 Constitution and government...1201

d. Early congressional regulation of modern-day Oklahoma...1201

e. The push for allotment...1201

f. Allotment and aftermath...1202

g. Creation of Oklahoma...1203

h. Away from allotment...1203

i. Public Law 280...1203

j. A new Creek Constitution...1204

k. Our decision in Indian Country, U.S.A. ...1204

3. Applying Solem ...1204

a. Step One: Statutory Text...1205

i. The statutes...1206

1) Act of March 3, 1893, ch. 209, 27 Stat. 612 ("1893 Act")...1206

2) Act of June 10, 1896, ch. 398, 29 Stat. 321 ("1896 Act")...1207

3) Act of June 7, 1897, ch. 3, 30 Stat. 62 ("1897 Act")...1208

4) "Curtis Act," ch. 517, 30 Stat. 495 (June 28, 1898)...1208

5) "Original Allotment Agreement," ch. 676, 31 Stat. 861 (March 1, 1901)...1208

a) Allotment...1209

b) Town sites...1210

c) Lands reserved for tribal purposes...1210

d) Future governance...1210

6) "Supplemental Allotment Agreement," ch. 1323, 32 Stat. 500 (June 30, 1902)...12117) "Five Tribes Act," ch. 1876, 34 Stat. 137, April 26, 1906...1212

8) "Oklahoma Enabling Act," ch. 3335, 34 Stat. 267 (June 16, 1906).89...1214

ii. Analysis...1215

1) No hallmarks of disestablishment or diminishment...1215

2) Signs Congress continued to recognize the Reservation...1218

3) The State's title and governance arguments...1218

a) Title...1219

b) Governance...1219

b. Step Two: Contemporary Historical Evidence...1220

i. The State's evidence...1221

1) 1892 Senate debate...1222

2) 1894 Senate committee report...1222

3) Other sources...1223

ii. Mr. Murphy's and the Creek Nation's evidence...1224

1) 1894 Dawes Commission records...1224

2) 1895 Dawes letter...1224

3) 1900 Attorney General opinion...1224

4) Post-allotment evidence...1225

iii. Analysis...1226

c. Step Three: Later History...1226

i. Treatment of the area...1227

1) Congress...1227

2) Executive...1228

3) Federal courts...1229

4) Oklahoma...1230

5) Creek Nation...1231

ii. Demographics...1232

iii. Step-three concluding comment...1232

IV. CONCLUSION...1233

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 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...