On August 8, 2017, the State of Oklahoma suffered a major jurisdictional defeat. In Murphy v. Royal, —F.3d—, 2017 WL 3389877 (10th Cir. Aug. 8, 2017), it was held that a large swath of Oklahoma, including the Tulsa metropolitan area, falls within a reservation of the Creek Nation; that the Creek Reservation has never been disestablished or diminished by Congress; and that, as a result, certain state-based convictions for major crimes are void ab initio. See id.
But just how did the Murphy court get there? The Major Crimes Act, 18 U.S.C. § 1153(a), grants exclusive federal jurisdiction over certain crimes committed by “Indians” in “Indian country.” Id. So, when Patrick Murphy—a member of the Creek Nation—mutilated and murdered George Jacobs, the relevant jurisdictional question was whether the crime occurred in Indian territory. Undertaking an exhaustive analysis of applicable treaties, statutes, history, and demography, the Murphy court concluded that it did. Murphy, 2017 WL 3389877, at *1–56.
The impact of that opinion is breathtaking. The upshot is that every state conviction of an “Indian” who committed a “major crime” within the 1866 boundaries of the Creek Nation is void. Federal officials lack the resources to reopen, reinvestigate, and re-prosecute those cases—numbering in the thousands—many of which are decades old. And that is to say nothing of the cascade effect the ruling may have on issues of taxation and regulation. See Andrew Westney, 10th Circ. Ruling May Spur Okla. Tribes to Expand Authority, Law360 (Aug. 11, 2017). But will it stick?
I am skeptical. Murphy’s procedural posture offers a number of narrow grounds for reversal en banc or by the Supreme Court. Unlike in many cases, de novo review in Murphy was not the default standard; it had to be won. That is because Murphy came to the appeals court based on the denial of a petition for habeas corpus.
28 U.S.C. § 2254 governs federal habeas review of state court proceedings. And relief may not be granted “unless the adjudication of the claim,” among other things, “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established [f]ederal law, as determined by the Supreme Court.” Id. § 2254(d)(1). Murphy held that the Oklahoma Court of Criminal Appeals failed to apply Solem v. Bartlett, 104 S. Ct. 1161 (1984), the “clearly established” test for determining whether an Indian reservation has been disestablished as “Indian country.”
This Essay argues Murphy was wrongly decided. First, it argues that the Oklahoma Court of Criminal Appeals did, in fact, consider the kinds of materials required by Solem, and that Murphy’s contrary reading is based on an uncharitable, selective reproduction of the state court’s opinion. Second, it argues that the status of a putative Creek Reservation is not “clearly established” under federal law. In reaching the opposite conclusion, Murphy construes precedent at the wrong level of generality and sidesteps a threshold question—whether Congress ever established a Creek Reservation to begin with. Therefore, this Essay argues Murphy didn’t just apply the relevant test wrong; it also may have applied the wrong test.
I. “Contrary To” or “Unreasonable Application Of”
A state court decision may be contrary to clearly established law “if the [ ] court applies a rule that contradicts the governing law set forth” in Supreme Court precedent. See Williams v. Taylor, 120 S. Ct. 1495, 1519 (2000); accord Lafler v. Cooper, 132 S. Ct. 1376, 1390 (2012). But it is often difficult to identify whether the “failure to apply a legal principle[ ] to a new context” should be analyzed under the AEDPA’s “unreasonable application” or “contrary to law” clauses. See Williams, 120 S. Ct. at 1521; see also Yarborough v. Alvarado, 124 S. Ct. 2140, 2150 (2004) (“[T]he difference between applying a rule and extending it is not always clear.”).
That distinction matters. To be “contrary to” clearly established law, a state decision must be “‘diametrically different,’ ‘opposite in character,’ or ‘mutually opposed’” to federal law. See Williams, 120 S. Ct. at 1519 (quoting Webster’s Third New International Dictionary 495 (1976)). To be an “unreasonable application” of law, “fairminded jurists could [not] [ ]agree” with the decisionmaking process of the state court. See Yarborough, 124 S. Ct. at 2149. “[T]he range of reasonable judgment can depend in part on the nature of the relevant rule”—“[i]f a legal rule is specific, the range may be narrow”; but “[t]he more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Id.
In Murphy, the “governing legal principles give[ ] courts broad discretion” to consider materials—from statutory text to contemporary circumstances to subsequent history—in considering whether a reservation has been disestablished. See Lockyer v. Andrade, 123 S. Ct. 1166, 1175 (2003). That analysis varies tribe to tribe; each enactment “employ[ed] its own statutory language, the product of a unique set tribal negotiation and legislative compromise.” See Solem, 104 S. Ct. at 1164. And no single factor is dispositive.
Unfortunately, statutes “seldom detail whether opened lands retained reservation status or were divested of all Indian interests.” Id. So, depending on the language and circumstances, some “land acts [disestablish] reservations, and other[s] . . . d[o] not.” Id. at 1165 (internal citations omitted). And absent clear statutory language, “[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, [disestablishment] may have occurred.” Id. at 1166. In this way, “explicit language of cession and unconditional compensation are not prerequisites.” Id.
So what is a state court to do? Well, the Oklahoma Court of Criminal Appeals considered the following materials: the Original Allotment Act of 1901; the Supplemental Allotment Act of 1902; Oklahoma’s status as a territory; the Oklahoma Constitution; the tribal and non-tribal property interests in the land; testimony received by the trial court; and certain federal precedent. Murphy v. Okla., 124 P.3d 1198, 1201–08 (Okla. Crim. App. 2005). And it ultimately held that “[t]he land in question had its Indian character expunged through conveyances to non-Indians.” Id. at 1206.
To be sure, aspects of that decision were lacking. But it is far from clear that the Oklahoma court’s analysis was “contrary to” or “an unreasonable application of” federal law. For starters, no Supreme Court precedent establishes the existence or nonexistence of a Creek Reservation. And many of the criticisms of the decision miss the mark. For instance, Murphy claims the Oklahoma Court of Criminal Appeals “did not evaluate any statute to see if Congress had disestablished the Creek Reservation,” Murphy, 2017 WL 3389877, at *23 (emphasis added); but that’s not true—the Oklahoma court addressed at least two (2) by name, Murphy, 124 P.3d at 1202. Additionally, Murphy accuses the appeals court of ignoring “the historical context of any laws,” Murphy, 2017 WL 3389877, at *23; yet its decision recounts history-based testimony before the trial court and expressly discusses Oklahoma’s status as a territory and transition to statehood, Murphy, 124 P.3d at 1203–08. Finally, Murphy also faults the Court of Criminal Appeals for not “evaluat[ing] later treatment of the area in question or demographic history,” Murphy, 2017 WL 3389877, at *23; but that charge is especially curious—as noted above, the state based its decision on demographic changes in Creek country, namely, the conveyance of individual allotments to “non-Indians,” Murphy, 124 P.3d at 1206.
But the state court’s greatest sin—according to Murphy—was “flipping [Solem’s] presumption by requiring evidence that the Creek Reservation had not been disestablished.” Murphy, 2017 WL 3389877, at *23. Murphy claims the Court of Criminal Appeals required affirmative evidence that a Creek Reservation “‘still exists today.’” Id. (quoting Murphy, 124 P.3d at 1207). However, the state court did no such thing. It framed the question as “whether or not the land in question is part of a Creek Nation reservation that has never been disestablished.” Murphy, 124 P.3d at 1207. And that bears a striking resemblance to Murphy’s framing of the jurisdictional issue. See Murphy, 2017 WL 3389877, at *3 (“Applying the Supreme Court’s test to determine whether [Congress has disestablished the] . . . Creek reservation, we conclude it has not.”); id. at 32 (“We must apply the Solem framework to determine whether Congress has disestablished the Creek Reservation.”). So much for the Murphy court’s contention that the Court of Criminal Appeals failed to apply Solem. See Early v. Packer, 123 S. Ct. 362, 365 (2002) (explaining that the habeas standard “does not require citation of [Supreme Court] cases[;] it does not even require awareness of [such] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them”) (emphasis in original).
Murphy’s contrary account of the state court opinion cherry-picks language out of context and gives it an uncharitable reading. The observation that “no case is cited for the proposition that [ ] individual Creek allotments remain part of an overall Creek reservation that still exists today” was simply used to identify an open question of law—one on which the Tenth Circuit reserved judgment in Indian Country, U.S.A., Inc. v. Okla., 829 F.2d 967 (10th Cir. 1987). See Murphy, 124 P.3d at 1207 (citing Indian Country, 829 F.2d at 975 n.3). And that is confirmed by the fact the passage is accompanied by a footnote suggesting a parcel of land cannot be both a reservation and an allotment under 18 U.S.C. § 1151. Thus, the Oklahoma court concluded no caselaw undermined its conclusion that the land in question lost its “Indian character” through sales to “non-Indians.” Murphy, 124 P.3d at 1206.
II. Clearly Established Law
Perhaps the Murphy court disagrees with the state court’s conclusion. Fair enough. But disagreement is not the standard for federal habeas relief. See, e.g., Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (“[E]ven a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.”). In any case, Murphy erred in a more fundamental respect—it construed “clearly established” law too abstractly. “A legal principle is ‘clearly established’ . . . only when it is embodied in a holding of” the Supreme Court. See Thaler v. Haynes, 130 S. Ct. 1171, 1173 (2010) (per curiam). And “[n]o decision of [the Supreme Court] establishes” that a Creek Reservation exists or ever did. See Nevada v. Jackson, 133 S. Ct. 1990, 1993 (2013) (per curiam).
Murphy responds that Solem’s standards for judging disestablishment were clearly established at the time the Oklahoma Court of Criminal Appeals rendered its decision. See Murphy, 2017 WL 3389877, at *18–19. And that is true. See, e.g., Solem, 104 S. Ct. at 1166 (“Our precedents in the area have established a fairly clean analytical structure . . . .”); Nebraska v. Parker, 136 S. Ct. 1072, 1078 (2016) (“The framework we employ to determine whether an Indian reservation has been diminished is well settled.”). But that “proposition is far too abstract to establish clearly the specific rule [Murphy] needs.” Lopez v. Smith, 135 S. Ct. 1, 4 (2014). “No[ ] [Supreme Court] decision[ ] . . . addresses, even remotely, the specific question addressed by this case.” Id. “Given the lack of holdings” with respect to the putative Creek Reservation, “it cannot be said that the state court” decision unreasonably applied, or was contrary to, federal law. See Carey v. Musladin, 127 S. Ct. 649, 654 (2006)
Requiring that level of specificity makes sense. “By framing . . . precedent[ ] at [ ] a high level of generality, a [ ] court could transform even the most imaginative extension of existing case law into ‘clearly established’” law. See Nevada v. Jackson, 133 S. Ct. 1990, 1994 (2013) (per curiam). And “[s]ection 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law.” Yarborough, 124 S. Ct. at 2151. The takeaway is that habeas relief is generally unavailable where “a state court [ ] decline[s] to apply a specific legal rule that has not been squarely established by” the Supreme Court. See, e.g., Knowles v. Mirzayance, 129 S. Ct. 1411, 1413–14 (2009) (internal quotation marks omitted).
In this case, what the Supreme Court has said about the Creek Nation tends to undermine Murphy’s position. The Court has noted that the Creek tribal government was dissolved by federal statute. See, e.g., Turner v. United States, 39 S. Ct. 109, 110 (1919) (Act of May 29, 1908, ch. 216, 35 Stat. 444, 457); Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 118 S. Ct. 1700, 1706 (1998) (Stevens, J., dissenting). And precedent confirms the relationship between dissolution and tribal allotments. See, e.g., Tiger v. W. Inv. Co., 31 S. Ct. 578, 580 (1911) (“In 1893, the United States, in pursuance of a policy which looked to the final dissolution of the [Creek] tribal government, took steps towards the distribution and allotment of the land among the members of the tribe.”). Indeed, in August 1852, the government granted a tract of land to the Creeks “so long as they shall continue to exist as a nation and continue to occupy the country . . . assigned to them.” See Woodward v. De Graffenreid, 35 S. Ct. 764, 768 (1915) (citing McKesson’s Comp. 9 (1893)).
Perhaps, as Murphy suggests, that analysis is erroneous or incomplete. But not clearly so. And to suggest that the law as stated in Murphy “‘twas always so . . . is utterly revisionist.” See Abdul-Kabir v. Quarterman, 127 S. Ct. 1654, 1676 (2007) (Roberts, C.J., dissenting). In fact, other precedent and statutes suggest that Creek jurisdictional interests eroded over time. Under the Original Allotment Act, tribal courts retained jurisdiction over claims involving members of the Creek Nation, but those courts were later abolished and enforcement of tribal law prohibited, and Congress thereafter extended Arkansas law over all residents of “Indian Territory,” including with respect to descent and distribution. See, e.g., Reynolds v. Fewell, 35 S. Ct. 230, 232–34 (1915) (collecting statutes); Sizemore v. Brady, 35 S. Ct. 135, 135–37 (1914); Jefferson v. Fink, 38 S. Ct. 516, 516–18 (1918); Grayson v. Harris, 45 S. Ct. 317, 317–19 (1925); Marlin v. Lewallen, 48 S.Ct. 248, 248–52 (1928) (“The Agreements, taken together, embodied an elaborate plan for terminating the tribal relation and converting tribal ownership into individual ownership . . . .”).
All of this took place before Oklahoma secured statehood. And it raises complex questions about the relationship between reservations and allotments, and state and tribal jurisdiction. Perhaps the most complicated question—unaddressed by Supreme Court precedent—is whether a Creek Reservation ever existed in the first place. Mere ownership of land doesn’t conclusively answer that question; after all, the definition of “Indian Country” separately enumerates reservations and allotments, implying a distinction between them. Compare 28 U.S.C § 1151(a) with id. § 1151(c); see also Duncan v. Walker, 121 S. Ct. 2120, 2125 (2001) (explaining that courts are “especially unwilling” to render a portion of a statute superfluous “when the term occupies so pivotal a place in the statutory scheme”).
That distinction has historical purchase—Oklahoma’s Constitution used the word “reservation” as a term of art, and in contradistinction to Indian allotments. See, e.g., Okla. Const. art. XVII, § 8 (1907) (“The Osage Indian Reservation with its present boundaries is hereby constituted one county[,] . . . the present boundaries unchanged until all the lands of the Osage Tribe of Indians shall have been allotted . . . .”); id. (referring to the “Creek nation”). And if the distinction applies to this case, Murphy didn’t just apply the “clearly established” test incorrectly; it also applied the wrong test.
None of this is to say that members of the Court have not, in passing, referred to Creek territory as a “reservation”; they have. See, e.g., Merrion v. Jicarella Apache Tribe, 102 S. Ct. 894, 923 (1982) (Stevens, J., dissenting). But to say that precedent on this score was “clearly established” asks too much. Federal law mentions the Creek Reservation in one breath, but tribal disestablishment in the next; it provides that individual allotments can diminish a reservation in some cases, but not in others; and it took the Murphy court 126 double-spaced pages to reach its result. That is not clearly established law—it’s “a dog’s breakfast of divided, conflicting, and ever-changing analys[i]s.” Abdul-Kabir, 127 S. Ct. at 1676 (2007) (Roberts, C.J., dissenting).
On appeal—whether en banc or before the Supreme Court—Murphy can be undone. Its analysis of how the Oklahoma court’s decision was contrary to law occupies a meager four (4) double-spaced pages. Forcing serious engagement with the habeas standard offers a procedural off-ramp from the collision course set by Murphy with respect to criminal jurisdiction in Oklahoma as we know it. A procedural approach also blunts the force of Murphy’s most impressive characteristic—its meticulous and far-reaching historical analysis.